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Litigation Communications: A Guide for Leaders and Counsel

October 22, 2026
Litigation Communications: A Guide for Leaders and Counsel

Litigation communications is the management of what an organization says, and does not say, to the public, the press, employees, customers and regulators while a legal dispute is underway. Done well, it keeps your public message aligned with your legal strategy. Done badly, it hands the other side a quote, waives a protection, or lets a story harden before your lawyers ever file a response.

If you lead a company or a nonprofit that has just been sued, or expects to be, this guide explains how the discipline works, where the legal guardrails sit, and how to build a plan before the first headline appears.

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TL;DR

  • Litigation communications manages the public narrative around a lawsuit, in lockstep with your attorneys. It is not the same as writing a press release.
  • Lawyers are bound by trial publicity rules, and what you say can affect privilege. Every public statement should be cleared with counsel first.
  • The stories that hurt most are often set before a judge rules. Waiting until the crisis peaks usually means playing defense.
  • A good plan has one translated, plain-language narrative, a short list of approved speakers, and a holding statement ready before you need it.
  • Credible action beats clever wording. What the organization does during the case is part of the message.

Table of Contents

What litigation communications actually is

Many people assume it means a press statement written in response to an aggressive filing, or a press conference on the courthouse steps. Practitioners writing for Chambers describe that view as far too narrow. The work is broader: it covers who speaks, when, to whom, and what is deliberately left unsaid.

A useful working definition comes from the public relations literature on legal disputes: managing the communication process during a legal dispute so as to affect its outcome or its impact on the client's reputation. The American Bar Association's young lawyers division puts the aim plainly. At its best, it keeps public messaging aligned with legal strategy, so that what is said outside the courtroom reinforces what is argued inside it.

That last point is the heart of it. Think of a lawsuit as a relay race with two tracks running side by side. One baton is carried by your attorneys inside the courtroom. The other is carried by your communicators in front of employees, customers, donors, the media and the public. If the runners never hand information to each other, they trip over one another.

How it differs from ordinary public relations

General PR is built around speed, warmth and visibility. Litigation communications often asks for the reverse: restraint, precision and a willingness to say less than you would like. Every sentence may someday be read aloud by opposing counsel, so the question is never only "how will this land with the public?" but also "what will this do to our position in the case?"

That is why the best programs are built jointly. Legal counsel owns the legal risk. Communications owns the audience. A skilled advisor sits between them and translates.

This is the part executives most often underestimate. The following is general information, not legal advice. Your own attorney decides what you can say in your jurisdiction and in your specific case.

Trial publicity rules

Attorneys are bound by professional conduct rules on public statements about pending matters. The model version, ABA Model Rule 3.6, bars a lawyer from making extrajudicial statements that the lawyer knows or reasonably should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding. The rule also lists limited exceptions, such as stating the claim or defense involved and information in the public record. States adopt their own versions, so the exact wording in California, Nevada, Arizona or Utah may differ from the model text. Ask your counsel which version governs.

The rule binds lawyers, not the organization's communications staff directly. But a communications plan that pushes your attorney to the edge of that rule is a plan that will not survive contact with your attorney. Build inside it from the start.

Contact with jurors

Courts also restrict communication with jurors and prospective jurors. One federal district's local rules, for example, forbid attorneys, parties and their representatives from communicating with a juror or potential juror before and during trial. For communicators, the practical consequence is that ads, social posts and executive appearances need a check against the court's rules when a jury could be exposed to them.

Privilege and work product

The most expensive mistakes are quiet ones. Attorney-client privilege protects confidential communications between counsel and client made to facilitate legal advice. The work-product doctrine protects documents and tangible things prepared in anticipation of litigation or for trial, under Federal Rule of Civil Procedure 26(b)(3)(A). The two are related but distinct.

Why does this matter to a communications team? Because sharing privileged analysis with an outside party, or circulating it widely, can raise a waiver argument. Federal Rule of Evidence 502 sets limits on waiver in certain circumstances, but you should never rely on it as a safety net. The Supreme Court held in Upjohn Co. v. United States that employee communications to counsel were covered by the privilege in that case, which shows the protection can reach inside a company. It also shows how carefully those conversations must be handled.

In practice, that means a few habits. Route sensitive communications strategy through counsel when it is tied to legal advice. Keep distribution lists short. Do not forward attorney memos to a wider team to "get everyone on the same page." Ask counsel how and whether outside advisors should be engaged so the arrangement is structured properly.

Why the court of public opinion cannot be ignored

Here is the tension we see again and again. Legal training emphasizes the rules of the courtroom. Many lawyers, as experts writing for Chambers observe, treat public opinion as secondary or irrelevant to the legal outcome. That is understandable. A judge will not be swayed by a headline.

But a lawsuit does not exist only in a courtroom. It exists in the minds of your customers deciding whether to renew, your employees deciding whether to stay, your donors deciding whether to give, your insurers and lenders, and the regulators and policymakers who read the same news. The same Chambers experts argue that in the digital age a case's reputation can be damaged long before any ruling, and that teams who ignore the narrative end up playing defense.

A Forbes Communications Council contributor makes a related point from experience: attorneys too often bring in a communications team only after things have reached a crisis point. By then the narrative has been written by someone else.

A quick illustration

Picture a regional healthcare nonprofit served with a complaint on a Friday afternoon. A reporter calls the same evening, having found it on the public docket. Without a plan, three things tend to happen over the weekend. An executive gives a well-meant comment that goes further than counsel would have allowed. Staff learn about the suit from social media. And the complaint's most colorful paragraph becomes the headline.

With a plan, the same Friday looks different. A short holding statement is approved within hours. Staff receive an internal note that is accurate and calm. One spokesperson handles all inquiries. The organization has not argued its case in the press, but it has not left a vacuum either.

This is a hypothetical example, not a client story. But the sequence will be familiar to anyone who has lived through a filing.

What a litigation communications plan contains

The plan does not need to be long. It needs to be ready, and it needs to be approved by counsel. In our experience the useful ones answer the following questions in plain language.

Who are the audiences, and what does each need?

The media is the audience everyone thinks of first, and often the least important. Employees usually matter more, because they talk. So do customers, donors, board members, insurers, regulators and community leaders. Each audience needs a different level of detail, and none should hear something that contradicts what another audience was told.

What is the narrative?

A common, avoidable mistake is sharing complex legal briefs with reporters. The experts at Chambers describe how professionals translate dense legal material into a concise mantra that simplifies the case for the public, even when the subject is highly technical. A brief is written for a judge. A narrative is written for a person who has ninety seconds and no legal training.

A good narrative is truthful, short, and consistent with your court filings. It names what the organization cares about, what it is doing, and what it cannot yet say, and why.

Who speaks?

Choose one or two spokespeople and train them. Everyone else refers inquiries to them. This sounds basic, and it is the rule most often broken, usually by a senior leader who wants to reassure someone at a dinner or on a podcast.

What is the approval path?

Decide in advance who drafts, who reviews for legal risk, and who gives final sign-off, and how fast that can happen. A process that takes three days is useless when a reporter has a two-hour deadline.

What are the triggers?

List the events that will require a response: a filing, a hearing, a ruling, a leaked document, a settlement, a regulator's inquiry, a social media post gaining traction. For each, prepare a draft statement and a decision on whether to respond at all. Sometimes the strongest communications move is a short, dignified sentence and silence.

What is the monitoring routine?

Track the docket, the press and social channels on a defined schedule. The point is not to react to everything but to notice early what is changing.

Offense, defense and the choice to stay quiet

Litigation communications is not only a defensive tool. Depending on the case, a party may need to explain its position to regulators, policymakers or key stakeholders who influence the environment around the dispute. Some commentators in the field describe this as playing offense as well as defense. That judgment belongs to you and your counsel together.

But proactive does not mean aggressive. Attacking the plaintiff in the press can backfire, invite a defamation counterclaim, or antagonize a judge. Many matters call for a quiet posture: a brief factual statement, steady internal communication, and visible action on the underlying issue.

That last element deserves emphasis. A statement about values rings hollow when behavior says otherwise. If a lawsuit alleges a safety lapse and you quietly fix the safety lapse, communicate the improvement carefully and with counsel's review of how it might be used in the case. Credible action is the most persuasive message an organization has.

Common mistakes

The patterns repeat across industries, and nearly all are preventable.

The first is calling for help too late. A plan written at the moment of crisis is a plan written under pressure, with fewer options.

The second is treating communicators and lawyers as adversaries. Lawyers worry about risk, communicators worry about trust. Both are right. The work is to find the statement that satisfies both.

The third is speaking from the gut. A founder or executive who feels wronged will want to set the record straight. That is human. It is also how admissions get made and privilege gets muddied.

The fourth is forgetting employees. Staff who learn about a suit from a news alert lose trust quickly, and they are the audience most able to leak, comment online or be contacted by opposing investigators.

The fifth is using legal language with the public. Terms that are precise in court sound evasive on the evening news.

The sixth is ignoring what happens after. A settlement or verdict is not the end of the story. Rebuilding trust takes deliberate work with the same audiences you protected during the case.

Common mistakes — overview diagram

Our perspective

We have spent more than 30 years advising leaders through moments when everything feels public and nothing feels certain. The lesson that has held up is that preparation and response are not separate disciplines. They are one.

Most organizations come to us after the complaint arrives. We understand why. Nobody budgets time for a lawsuit that has not happened. But the leaders who come through best are rarely the ones with the cleverest messaging. They are the ones who decided early what they stood for, who stayed in close step with their attorneys, and who acted in ways a skeptical observer could verify.

We see our role as sitting beside counsel, not in front of them. Your attorneys protect your legal position. We help you understand how the people outside the courtroom are reading the situation, and we help you choose words and actions that hold up under both kinds of scrutiny. We also lean on a network of experts when a matter calls for specialized knowledge, so that the advice you receive is practical and not theoretical.

If there is one shift in perspective we would invite, it is this: stop asking how to win the headline and start asking how to remain credible when the dust settles. Credibility is slower to build and harder to lose than most leaders expect, and it is the asset a lawsuit puts most at risk.

— Mark

Working with counsel and outside advisors

Start with a conversation between your general counsel or outside litigator and your communications lead, before the crisis. Agree on who decides what. Agree on which topics are off limits, and which factual points can be stated safely at any time.

Then ask counsel how any outside communications advisor should be engaged. Whether and how conversations with an advisor are protected depends on the facts and the jurisdiction, and the answer is a legal one. Do not assume. Ask.

Once the structure is settled, a good advisor will do several things. They will pressure-test your narrative from the point of view of a skeptical reporter. They will prepare your spokespeople. They will draft statements for legal review, not instead of it. And they will tell you when the right move is to say nothing.

How Mark Brown Strategies can help

We help corporations and nonprofits prepare for and manage exactly these situations. Our work spans crisis management and communications, reputation recovery, crisis readiness assessments and litigation support, among other services. A readiness assessment before any dispute is the most economical place to begin, because it surfaces the gaps in your approvals, your spokespeople and your audience lists while there is still time to close them. If a matter is already underway, we work alongside your counsel to align the public message with the legal strategy and to plan for the rebuilding that follows. Pricing is set per engagement, so reach out through our site to discuss your situation.

Your first 72 hours: a short checklist in prose

If a complaint has just landed, begin with counsel. Confirm what you may say and what you may not. Within the first day, approve a short holding statement that acknowledges the matter, states that you take it seriously, and says you will respond through the proper legal process. Name your spokesperson. Tell your employees before they read about it elsewhere, and keep that note factual.

Within the second day, map your audiences and decide who needs a direct conversation, such as major customers, key donors, lenders and insurers. Set up monitoring. Draft, but do not release, statements for the next three foreseeable events, whether a hearing, a motion ruling or a media story.

By the third day, you should have a single narrative document, reviewed by counsel, that every spokesperson can speak from. Revisit it every time the facts change.

FAQ

What is the difference between litigation communications and crisis communications?

Crisis communications covers any event that threatens an organization's reputation, such as a data breach, accident or scandal. Litigation communications is the subset tied to a legal proceeding, where trial publicity rules, privilege and court procedure limit what you can say. Many real situations involve both, which is why the two teams need to work together.

Can a company talk publicly about a pending lawsuit?

Often yes, but carefully. Attorneys face limits such as ABA Model Rule 3.6 and its state counterparts, and anything you say can be used in the case. Have counsel review every statement before it goes out.

When should we bring in a communications advisor?

As early as you reasonably can, ideally before a dispute is public. Commentators note that teams called in only at the crisis point have fewer options. Even a one-time readiness review, done with your attorneys, can save critical hours later.

Does hiring a communications advisor risk waiving privilege?

It can, depending on how the relationship is set up and what is shared. Attorney-client privilege and work-product protection are distinct doctrines with their own limits. Ask your attorney how to structure the engagement before you share anything sensitive.

Sources

Written with BabyLoveGrowth technology