Legal Crisis Strategies : Crisis Communications Lawyer & Attorney : McDermott Will & Emery Law Firm : Risk Mitigation, Mass Litigation

One of the first rules of crisis management, whether in politics or in the private sector, is to close the gap to zero between public perception and the facts.

In the corporate arena, we frequently are retained by clients who have already been the victims of misleading negative headlines and stories that are biased or tilted in the direction of critics. This is frequently the case in litigation.  Plaintiffs attorneys know they must be skilled at getting into the media first, because most people perceive pure allegations in a filed complaint as “fact” if a newspaper reports them—and certainly that impression will grow if the response to the allegations in the newspaper stories is, “no comment, we are in litigation” or some vanilla comment such as “this is a baseless claim and we will prevail in the litigation” without any factual rebuttals. 

Thus the gap grows between the allegations (which are not fact, but just someone’s allegations of fact) and the reality of what actually happened and why. And corporations receiving bad advice, namely just the legal perspective of “no comment, we will litigate this in court,” will find themselves with depressed share values and a potentially poisoned jury pool—in other words, little option but to “settle” the case, usually for large dollars commensurate with the number of times the lawyers convinced the client that “no comment” or vanilla rhetoric instead of facts was the better strategy.

Now let’s apply these lessons of the need to get the facts out early and often to the current Obama administration difficulties in getting comprehensive health care passed. Most people, and certainly most of the Republican Party and the media, have portrayed public opinion as being overwhelmingly against the Obama health care plan. 

But the facts as demonstrated by respected public opinion polls do not support that general public perception.  The latest Washington Post –ABC News poll, conducted February 4 to 8, 2010, shows the public essentially split on President Obama’s and the Democratic Congress’s proposal—46 percent for, 49 percent against—essentially a dead heat, since that is within the margin of error of the poll (+/- 3 percent).  Even more fascinating are public responses when the three specific aspects of the proposal are spelled out concretely:

·        Require businesses to offer insurance – 72 percent to 27 percent in favor

·        Require all Americans to purchase insurance (the individual mandate) – 56 percent to 43 percent

·        Require insurance companies to sell to all Americans regardless of pre-existing conditions – 80 percent to 19 percent

Note:  These results prove that the American people overwhelmingly support a federal government mandate—to employers, to individuals, to insurance companies—to insure virtually all Americans.  This is contrary to what most opponents of President Obama and most of the media have written and believe.     

So how is it possible the Obama White House has allowed such a gap between public perception (and conventional wisdom) that the Obama health care program is so unpopular and the reality that American public opinion strongly supports the three specific and most important components of the actual program? 

The answer is a failure to communicate the facts effectively to the American people by the Obama White House and the Democratic Congress.  This is why the overall general question draws a virtual dead heat—whether people support the “proposed changes” of President Obama and the Democratic Congress—is so different from the results when concrete, specific, factual proposals are communicated, i.e., a federal mandate to private employers, individuals and insurance companies leading to near universal coverage. 

Crisis management Rule 101: get a simple (I like the number “three”) three-point message out as to what the proposal actually is, repeat it over and over again, and set up a war room/rapid response room to challenge every distortion that appears anywhere—on cable TV, on broadcast TV, on talk radio, on the internet, every day, everywhere.

If you don’t get your message out first and repeat it over and over again—containing facts, facts, facts, and not vanilla rhetoric—then the other side will, and in crisis management, you never get a second chance to make a first impression, and unfortunately, first impressions count a lot.

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You are the General Counsel of a major corporation about to go to your son’s soccer game. It’s five to five and the phone rings: The New York Times is about to go with a story about your secret merger negotiations, that also involve sensitive talks with the U.S. Federal Trade Commission (FTC). Your stomach clenches. It’s a full blown crisis….and it’s bad…or is it? 

Most people think a crisis is when something bad happens. But by definition it’s when something bad might happen depending on how you handle the moment. 

According to Merriam Webster, the definition of crisis is a “decisive moment,” or an,

"Unstable or crucial time or state of affairs in which a decisive change is impending, especially one with a distinct possibility of a highly undesirable outcome."

So it’s not what is happening but what you do at those decisive moments that determine whether the outcome of this state of affairs will be good or bad and not necessarily the crisis itself. 

And since, by definition, a crisis is a “state of affairs,” it is multidimensional. Most crisis involve the risk of financial damage, legal liability and reputational harm. Because the only way to stabilize a situation is to determine the underlying facts or factors that are causing the “unstable” moment, it is often legal training that best conducts the fact-finding process, under privilege. 

For example:

• Is there a misperception of the facts that is leading to false accusations?
• Is that misperception politically motivated or coming from a competitor or someone with competing interests, such as another bidder for the same company? 
• Was something done that was not legal or not according to policy or best practices? 
• What can you do in this crucial moment to make the outcome one that enhances your reputation rather than harms it? 

There can be lots of reasons that you or your company are under attack, which is why we believe three disciplines are called for in managing a crisis and ultimately achieving a positive outcome: 

1. Legal
2. Political
3. Public relations experience

Many times all three disciplines are necessary. We call it fighting by land, sea and air….on all fronts at all times. You can do this quietly or not. In the example above, no comment is not an option. Is there a press strategy that can prevent the reporter from printing now, by offering an exclusive later? Are there facts in support of the merger than can be given without endangering the negotiations with the company and the FTC? 

The solution here will certainly be driven by legal, political and public relations expertise.

Handling that decisive moment strategically can be the difference between having the reputation of a company that has done wrong to a company that cares about doing things right. It’s critical to ensure that policies are in place that are designed to prevent the most likely crisis from occurring and, in turn, will limit legal and reputational risk. The scenario of a possible leak must be planned for, with pre-approved statements available to deal with any eventuality and with a clear strategy for informing key stakeholders of the likely reporting. 

Any company can plan for a crisis. 

These decisive moments or state of affairs are not entirely unpredictable. For example, a global retailer that manufactures some of its own lines can either worry about being accused of unfair labor practices in areas of the world that are difficult to police or partner with a non-profit or advocacy group to work out a solution that involves these same groups advising the company on best practices and conducting “surprise” visits to ensure those policies are being carried out. This again calls for lawyers, business, political and PR experts who can view issues through multiple dimensions

So with the pre-approved messages from your antitrust lawyers, and the communications strategy you worked out with the GR and PR experts at your fingertips and ready to activate once you hang up, you take a deep breath. You can answer the questions, making this decisive moment a winner for the company by using the reporter’s query as an opportunity to get the facts out about just why this match makes sense from a legal, political and consumer viewpoint. And, you can still make the soccer game.

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