Prudence alone will not win the day

Prudence alone will not win the day

Ong Hock Chuan, Jakarta

Things are different in Indonesia now. Like it or not,
Reformasi has unleashed a dynamic and free, if often cavalier,
media. One of the characteristics of a society with a free media
is that influence goes to the party that can successfully court
the media, and through it, public opinion.

Those that can mount a successful Public Relations (PR) or
information campaign via the media come out on top; those who
can't are seen as weak and ripe for further bullying, extortion
attempts or plundering.

Two high-profile cases over the past two years argue the case
that it is imprudent for companies to maintain the stiff upper
lip if they should go to court.

The first involves Manulife. There are many uncanny
similarities with Prudential. They are both insurance companies
and they share the same court, the same lawyer for the plantiffs
and the same controversial bankruptcy law.

Manulife began to mount a litigation PR campaign after it was
declared bankrupt and forced to close down by the courts. It
adopted a high profile in the media and began actively pushing
its messages and information to journalists. At the same time it
also applied diplomatic pressure and lobbying.

The combination of all these efforts resulted in the Supreme
Court overturning the Commercial Court's decision, but one can't
help wondering whether the lower court's decision could have
been different if Manulife had resorted to Litigation PR when the
hearing had begun in the first place?

Another high profile case was when the Anti Monopoly
Commission (KPPU) found a host of companies, including Deloitte
Touche Financial Advisory Services, "guilty of conspiracy" to
sell Indomobil shares on the cheap. The offended parties took the
KPPU to court. They engaged the best lawyers but they also
realized that without effective public relations public opinion
they would be unlikely to receive a fair trial.

This was because the KPPU was staffed by prominent Indonesians
who were known for their integrity. The plaintiffs needed to get
through the message that while the KPPU members were full of the
best of intentions, their decision was just plain wrong because
it ionwas based on erroneous "facts" and was arrived at without
due process of law.

Working with their lawyers and public relations consultants
the plaintiffs mounted an aggressive legal and PR campaign
against the KPPU. Result: Both the District Courts and the
Supreme Court ruled for them and chastised the KPPU.

Again, the question that needs to be asked is whether these
companies could have influenced a decision to their favor if they
had acted earlier, before the KPPU had made its decision?

There are no definite answers here but it is helpful to note
that one of the objectives of Litigation PR is to deter the
opposing party from taking the matter to court in the first
place. By mounting a PR campaign early companies can send a
powerful message to the other side that they are in for a
bruising time, both in the courts of law and of public opinion,
if they persist in taking the matter to court.

If the campaign is successful then the other side backs down
and the problem goes away. Sun Tzu, who believes that the
greatest victories are the ones achieved without having to go to
war, would be happy. Your lawyers would not though, because this
would result in vastly reduced billings.

If the case still goes to court then you stand a better change
of a fair ruling when the media limelight is focused on the case.
It will give the judges reason to pause and consider very
carefully the implications of their decisions. The Manulife
judges, for instances, were banished to outposts shortly after
the scandal died down.

It is perhaps time for companies, especially multinational
ones operating in Indonesia to consider Litigation PR as part of
the legal arsenal against bad debtors and even worse judges. What
is clear is that the old approach of softly, softly doesn't work
any more while the still unconventional approach of enlisting the
media to influence the outcome of a court case has been known to
show some results.

The writer is Partner of PT Maverick Solusi Komunikasi, a PR
consultancy specializing in crisis/issues management as well as
brand communications.