Facebook’s reputation, goodwill, and credibility took a hit in 2018 thanks to a number of developments that were unfavorable to the company.

 

The March news reports about the Cambridge Analytica scandal. The lackluster performance by Mark Zuckerberg at Congressional hearings in April. The December news report that Facebook gave certain tech titans including Microsoft, Amazon and Spotify far greater access to users’ data than the company had previously disclosed.

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But the most notable development—at least for the purposes of this column—was The New York Times’s November bombshell look into Facebook’s efforts to navigate its recent crises. Among other things, the article raised the question of whether Facebook’s executives ignored evidence about Russian interference in the 2016 U.S. presidential election. The article also shined a spotlight on the work that one of Facebook’s outside public relations firms, Definers Public Affairs, did for the company.

 

The New York Times followed up that report with two more articles that same week that delved deeper into the work that Definers Public Affairs did for Facebook and its other clients, including Definers’ attempts to tie anti-Facebook sentiment to George Soros.

 

As reported by The New York Times, much of the work that Definers Public Affairs did for Facebook centered around a public relations tactic that is used by practically every political campaign: “opposition research.” Opposition research is generally defined as the practice of collecting information about adversaries for use in discrediting them and weakening their positions on certain issues.

 

Facebook took heat from the public and the media regarding its use of opposition research in its public relations campaign(s). The reaction to Facebook’s use of that technique was overwhelmingly negative, particularly regarding the perceived anti-semitic undertones of that George Soros angle.

 

One of the themes from The New York Times’s reports on Facebook and Definers is that opposition research is spreading from its birthplace in Washington, D.C., to cities and states across the country.

 

But in many ways, that’s old news. In recent years, opposition research has become a tool employed more and more by litigants, their attorneys, and their outside communications firms with which to build public relations campaigns they hope will help them win their legal disputes in the court of public opinion and, eventually, in a court of law.

 

If you know where to look, you are likely to see findings from opposition research being used on both sides of high-profile legal disputes.

 

Plaintiffs firms are using those findings to fuel communications campaigns against the entities the firms are suing. By finding opportunities to both allege additional legal misconduct on the part of, and generate negative publicity about, their adversaries, plaintiffs’ firms are hoping to induce quicker, more lucrative settlements.

 

Some plaintiffs firms are even using findings from opposition research when challenging other plaintiffs firms regarding appointments of lead counsel and the proposed division of attorney fees and expenses.

 

Not to be outdone, corporate defendants and their counsel are doing all that they can to dig up information on the plaintiffs (and plaintiffs firms) bringing suits against them. By impugning a plaintiff’s credibility in the media, defendants can set the stage for a more favorable settlement and communicate not-so-subtly that the plaintiff’s credibility—and the credibility of his or her counsel—will be a theme leading up to and at trial.

 

(There is often a nice return on investment for litigants who employ opposition research as part of their campaigns to win in the court of public opinion. Investing tens of thousands of dollars could help increase or decrease settlements by millions of dollars, if not tens of millions of dollars. And, corporate defendants are often willing to pay tens of thousands of dollars to not only help decrease the settlement values of cases, but also to perhaps save millions of dollars in potentially lost business and prevent a potential decrease in stock price as a result of certain information becoming public during a high-profile legal dispute.)

 

The irony of this use of opposition research in the court of public opinion by litigants and their attorneys is that they have already been using such tactics for some time now—in a court of law.

 

It has long been standard operating procedure for litigators and trial attorneys to dig up as much relevant dirt as possible on fact witnesses and expert witnesses expected to testify at a deposition or in court, and then to question the witnesses about this dirt.

 

But what has changed recently is the willingness of attorneys and their clients to use this information publicly and outside of court against adversaries in the hopes of influencing how a legal dispute is resolved.

 

Many readers of this column have been involved in high-profile cases, including criminal prosecutions, class actions and MDLs. In many of those cases, your adversaries (yes, even prosecutors) have engaged in such campaigns—likely, without you even realizing it.

 

But knowledge is power. Armed with the knowledge that opposition research is being employed by Davids and Goliaths alike to sway the court of public opinion in connection with legal disputes, you can now be a better advocate for your clients. You can now plan for the possibility that opposition research will be used against you and your clients. And, when appropriate, you will have an additional resource to help your clients favorably resolve their legal disputes.

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(As for the ethics of opposition research, attorneys are generally going to want to stay away from making extrajudicial statements that refer to nonpublic information that would be inadmissible at trial in a particular case or otherwise have a substantial likelihood of materially prejudicing a trial. Such statements could run afoul of Rule of Professional Conduct 3.6 (Trial Publicity). Based on Rule 3.6, when an attorney wants to make public statements that reference information uncovered through opposition research, the safest bet is to stick to information that is already public, or nonpublic information that is highly unlikely to materially prejudice a trial.)

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Media reports about Facebook’s use of opposition research have shined a light on a public relations tactic that is increasingly in use outside of political campaigns, including by attorneys and their clients.

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And, in the bigger scheme of things, Facebook’s use of opposition research is just the latest reminder that in 2019, if you are only concerned with fighting your clients’ legal battles in a court of law, you are one step behind your adversaries.

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That’s bad for you. It’s even worse for your clients.

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Wayne Pollock is the founder and managing attorney of Copo Strategies in Philadelphia, a national legal services and communications firm. Attorneys and their law firms engage Copo Strategies when they want to ethically, strategically and proactively tell their stories—and their clients’ stories—to key audiences such as the media, referral sources and prospective clients. Contact him at 215-454-2180, waynepollock@copostrategies.com, or @waynepollock_cs on Twitter.

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Reprinted with permission from the January 15, 2019, edition of The Legal Intelligencer © 2019 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.