Increasingly, plaintiff lawyers and governmental units are filing public nuisance lawsuits., which presents unique challenges to PR firms representing defendants.
That is because the lawsuit is directly in the public interest. The Restatement (Second) of Torts defines “public nuisance” as “an unreasonable interference with a common right to the general public.” The rights range from health to safety. Obviously, the client is pre-branded as the bad guy.
Such lawsuits have been filed against manufacturers of tobacco, lead paint, guns, gas additives, and opioids; energy utilities; and the Roman Catholic Church. A major advantage of using public nuisance versus traditional product liability law is that it there is no statute of limitations. And that is the rub. If the product, service, or systems (as with the Catholic Church in “Joseph McLean, et al. v. U.S. Conference of Catholic Bishops”) allegedly cause collective harm right now, it does not matter when they date back to. Or, even if they were legal back then. Just about every client eventually could be on the hook.
Additional factors making public nuisance litigation popular, explains Bloomberg Law, include:
- Congress and the courts have made it more difficult to have other kinds of class action lawsuits certified.
- Lawyers and budget-challenged states have as a model the $365.5 billion settlement for tobacco (“State v. American Tobacco Co.”).
- Science facilitates tracing pollutants back to the source.
- This strategy can substitute for decline in enforcement such as in environmental matters.
In the past, PR firms for defendants frequently have failed. They missed that the core of public nuisance litigation is the public good. Law is being used as a tool to protect or remedy that. But the issues are human. Therefore, human should be the tone and content of advocacy. Not points of law in isolation.
PR done by plaintiff law firms have that down cold. For example, here is an award-winning YouTube video by Motley Rice on “People v. Atlantic Richfield.” The focus is emotional: children.
Litigation communications for public-nuisance defendants must fuse the human with any points of law and policy matters. That extends from what is associated with the client per se to third parties supporting the cause. So much of the third-party lobbying, such as trade associations in “People of CA v. Atlantic Richfield,” have a disembodied voice.
Here are five recommendations:
- Put a human face on all aspects of the lawsuit. The traditional tactic is to say that public nuisance law will harm many industries. Instead, as was learned in freshman composition, show how it could eliminate the X number of well-paying jobs at an electric utility in ABC location. Have the workers talk about their interpretation of the lawsuit. Provide graphics documenting the legal expenses the client is absorbing and how those funds could have been invested in expanding the business.
- Exploit social media. That includes, if the court allows it, live tweeting and live-blogging the trial. But before that, from the get-go there should be an engaging website that functions as the go-to for all information, opinion (including negative), media clips, downloadable e-books, and slots for tweets and blogs. Regularly there should be postings on Twitter, LinkedIn Updates, Instagram, and Facebook. Respond to critical comments.
- Rush out a print book. That could be through a firm such as iuniverse which handles self-publishing, including having the book sold online as well as in bookstores. Ensure the client communicates the story in a me-to-you conversational way. But that book will not go anywhere without a top publicist with a track record for promoting books.
- Put human beings with a heart on the front lines. The choice of spokespeople is critical. If they are lawyers they should demonstrate their own humanity and make legal points accessible and engaging. Those spokespeople should make it their business to coach third-party supporters in capturing minds and hearts.
- Be creative. For example, what about sponsoring a contest with a business school to propose alternative ways to solve the problem. Those could make the remedy requested by the plaintiff appear inefficient and unduly expensive.
A recession could accelerate the number of public nuisance lawsuits filed by governmental units. The possible funds coming in would be seductive. Also, their own financial risk is low. Plaintiff firms are eager to do most of the heavy lifting on contingency. Those lawyers take up to 30 percent of the verdict or settlement. They have plenty of motivation to encourage public nuisance litigation.
Jane Genova (http:/lawandmore.typepad.com) makes points of law, policy issues, and politics accessible and engaging for the public, media, investors, and more. Complimentary consultation [email protected]