As a sixth degree black belt in karate, Florida trial lawyer Michael Ehrenstein is a big believer in Chinese military strategist Sun Tzu’s ancient adage about winning the battle before it’s even fought.
When it comes to representing foreign clients, he said, that usually means lining up robust lobbying and public relations defenses before ever taking a case to court.
“If you’re going to win before you fight, you have to shape the battlefield,” Ehrenstein told The Influencers, the new podcast co-hosted by Foreign Lobby Report and Richard Levick of the international communications agency LEVICK. “And in order to do that you have to include shaping the mindset of the people that are making the decisions politically […], shaping the mindset of the people in the public that are going to put pressure on the people that are making the political decisions, and shaping the mindset of the people that are ultimately going to be the decision-makers within the context of the actual litigation or arbitration that you’re fighting.”
A principal at the business law firm Ehrenstein Sager, Ehrenstein has carved out a reputation as one of the few boutique lawyers handling complex legal matters for sovereign clients. He said hiring lobbying and PR help on such accounts is now “de rigueur” for lawyers.
While lobbying has always played a role, he said, its importance has only grown as legal protections afforded sovereign clients have become increasingly tied to domestic US politics (the 2016 Justice Against Sponsors of Terrorism Act [JASTA] weakening Saudi Arabia’s immunity from damages related to the Sept. 11, 2001 attacks comes to mind).
“I don’t know enough about lobbying and PR to know when it’s right or when it’s not right, but I can tell you this for sure: When we have a significant matter, especially when a sovereign is involved, it is de rigueur for the sovereign to hire and use lobbying assistance and PR assistance,” he said. “It is part of what a good lawyer will do in advocating for the best interests of their sovereign client to ensure that all the levers of persuasion are being pulled.”
“There are levers of persuasion that I can pull in court in front of a judge or a jury, but that is only one arena in which a war is being waged,” he said. “The other arena can be political, the other arena can be public perception. And those different arenas have to mesh together like cogs in a machine in order to get the best result possible.”
Another winning strategy when working with foreign entities, he said, is to make sure lawyers and their client are on the same page culturally. That means clearing up any possible misconceptions about the US legal system from the get-go.
“Their experience in their countries might be that it’s easier to avoid service of process, it’s easier to play games, it’s easier to delay process for decades; it’s easier to have maybe what we would consider to have inappropriate influence with prosecutors or with judges than it is here,” Ehrenstein said. “So when they come here you [have to] say ‘ no, no, no, when the judge ordered you to do something, he actually meant it’.”
To help with that conversation, Ehrenstein has long relied on Abacus Worldwide, a global network of law and accounting firms that share local knowledge.
“If you don’t have an understanding of how the culture of your client works, you’re never going to be able to really identify the differences that are going to help [them] succeed here,” he said. Abacus, he said, “helps give me the local intelligence that I really need to in order to be successful in that primary function of helping my client from abroad understand how our system works and how it might be different.”
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