For The Defense

Moving Mountains…
Changing Public Opinion through Web Optimization

by Richard S. Levick

Consider Ken Lay.

Distrusted by many, reviled by some, the former Enron chief has refused to play a passive role amid his many legal imbroglios. Quite to the contrary, he posted a personal website giving his side of the story.

Lay then took a crucial next step. He optimized the site. He took some basic mechanical steps, in terms of both the technology and content of the site, to ensure a maximum number of visitors drawn potentially from every sector of the media, government, and business, along with the general public.

Optimization means not just telling your side of the story, but significantly increasing the chances that the people you want to hear it will actually be listening. And, because it's a website, you can post daily events on a 24/7 basis and even beat the newspapers to the punch. You and the points you want to make, can become an electrified and amplified trusted news source, including to journalists writing the next stories.

Optimization is thus an integral party of any larger litigation communications strategy. It drives journalists to you as an information source. Their coverage is then fed back to the site - additional optimized content likely to draw (and persuade) yet more journalists. For your opponents, it's a vicious circle. For you, it's a well-oiled PR machine.

Optimization can accomplish even more.

Consider this scenario from an actual recent event (with details modified). A company in Asia is suing another party for negligence involving a complex paper trail and the real possibility that the defendant has been malfeasant.

Within two weeks of the company's site going up in optimized format, its messages were interwoven with media outreach efforts all over the world that, with each new day, resulted in a steadily increasing volume of stories. Before the third week was over, the breadth and depth of media penetration paid a premium that is having a decisive impact on discovery and may well cause the dispute to be resolved in the company's favor.

As the stories grew in worldwide momentum, the company received a call from a "deep throat" from a third country advising that certain documents establishing malfeasance are stored In a specific location yet another country.

Yet the horizons are even more tangibly boundless. For ‘litigants, or for anyone seeking to mould popular opinion, an optimized website—more than good press, more than a commercial, more even than a sympathetic TV interview—is an effective way to begin a grassroots movement and catalyze a swell of universal support.

Consider another real-life case in point (also disguised). A global lobbying effort to secure the civil rights and likely physical survival of a controversial minority was dishearteningly stalled by the political indifference of elected officials who, based on voting patterns, had no particular reason to care about the matter.

But an optimized website vivified incipient outrage via protests, letters, and coverage of public demonstrations by family members, along with almost unanimously sympathetic international press as well as supportive legal rulings stateside. The website—again, by feeding news stories, and then incorporating those stories into its content—has changed how the government would have to view the issue.

It was no longer an issue they could ignore. It was now an issue that, because the optimized reports were being updated at least twice everyday, had taken on the force of an ongoing mms movement, a rash of mounting opinion that the politicians could no longer compartmentalize, ft was a wolf at their door howling for resolution.

Every international event, every new court ruling, was lashed worldwide. Who knew from whit quarter the government would feel the next pressure! It could be a liberal or a conservative journalist in the United States. It could be an ambassador from an allied nation.

This campaign showed too how, hand in glove with optimization, tracking stories is a key part of the media strategy. If someone in Mongolia or Botswana or Oman were to make a supportive statement, or write an op-ed, it could be captured at once and fed into the accelerating thrust of global pressure and outrage.

Unleashing the Tide

Online communications, optimized and coordinated with a media strategy, can thus directly affect the climate of opinion swirling around a case. It can alter the disposition of the case itself. And, it can parlay opinion into a veritable mass movement.

After all, a website is a fixed resource for people. They can return to it again and again and, as they do so, its messages are reinforced. Even a favorable TV interview is a one-shot deal. But here we have permanent media capital.

Considering the cost of an optimized site—typically a few thousand dollars a year—it would be professionally remiss of any litigator to exclude them from their case management arsenals when so much more is at stake.

At this juncture, the strategy is so potent that it has become a news story. For example, Ken Lay’s site became news, garnering a feature story originally run in the Houston Chronicle by Mary Flood, a most respected journalist. The story has subsequently been picked up by the AP and run in many dozens of newspapers around the world. In turn, because it was news, Flood’s story drove a whole new population of visitors to the site.

It’s particularly important to note that, with all three of our examples, outside counsel were driving forces behind the web optimization strategy. Mike Ramsey, Ken Lay’s lawyer, knows the court of public opinion is decisively important, and he knows how to play it. “I want people to understand Ken Lay’s position,” Ramsey told Mary Flood. “I said that if we were going to do a Web site at all, do it so people can find it.”

Time will tell the ultimate effect of Lay’s online campaign but the immediate value is undeniable: it is an ongoing rejoinder to the apparent consensus that lay is the villain and the government the hero. If nothing else, that assumption of culpability has been potently challenged, If nothing else, the veil of consensus has been pierced.

Steering Traffic

There are, of course, billions of websites. How does the art of optimization persuade the public to visit your site and how does it then maintain the momentum of new visitors?

An optimized website is a site that has a maximum chance of popping up on users’ screens when they search Google or other search engines. Considering the immense potential so dramatically illustrated by our examples, it’s an art potentially as important in case strategy as brief writing.

Optimization begins with gnomic devices called “spiders,” which the search engines use to prioritize websites and website content. Spiders are guided by complex and ever-changing algorithms. The uncover “keywords” that will directly affect what Google, for example, provides of work, however, you must be aware of the importance of getting a plaintiff’s testimony about the nature of their speech.

Under Pickering v. Bd. of Educ., 391 U.S. 563, 571 (1968), an employee’s speech is protected under the First Amendment only if it addresses a matter of legitimate public concern. Individual personnel disputes that would be of no relevance to the public’s evaluation of the performance of the entity are generally not of public concern. Plaintiffs are usually very eager to justify their complaints, whether it be to an administrative agency or a supervisor. They are usually eager to talk about why they were wronged. And they will frequently provide the exact information you need for your motion for summary judgment when you ask them a question such as: “You complained to the EEOC because you were concerned about your job, weren’t you?” Oftentimes, it is the only question you need to ask in order to confirm and verify your argument that the plaintiffs speech was not a matter of public concern.

Conclusion

It is no secret that retaliation cases are very dangerous in the hands of a jury. What juror has never had a disagreement with an employer, or felt he or she has been given a bad deal? Given the percentage of retaliation claims that are filed every year, the difficulty inherent in winning them on dispositive motion, and the very large awards that are likely, the homework and preparation prior to beginning discovery are well worth the investment of time.

Whether a retaliation claim is based on the First Amendment or Title VII, plaintiffs are always anxious to talk about why they are right and why the defendant is wrong. With some preparation and familiarity with the facts of the case, oftentimes they can be artfully guided through a deposition so as to provide the very information you need to support your motion for summary judgment.

Address each of the dements of the claim as you make your way through interrogatories, requests for admissions and preparation of your deposition outline. Remember the plaintiffs burden and hold him or her to it. Give the court the evidence necessary to make a decision in your client’s favor without a feeling that it is doing so based on judging the credibility of the plaintiff’s testimony. Let the plaintiff provide the court with all the evidence it needs to find in favor of your client.

Richard S. Levick is President of Levick Strategic Communications, which has directed lie media in the highest-profile matters, from Napster and Guantanamo to the Catholic Church controversy and the Rosie O’Donnell Rosie magazine lawsuit. Their latest book, Stop the Presses: The litigation PR Reference, is available at Amazon.com