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

The tragic and deplorable terrorist attacks in the Moscow subway should remind everyone that crisis management begins at home. Press reports quoted many panicked Muscovites lamenting that they could not locate loved ones and had little information as to whether they were dead or alive. Cell phone towers were unable to keep up with demand, as millions tried to check in with their family and friends who were among the 500,000 people traveling on the subway at that time.

            Things could have been far worse if the attacks had continued, or the government had decided to order an evacuation of parts of the city. So how does one prepare for the unthinkable? You think about it by identifying the most likely terrorist or criminal threats and natural disasters and planning for them. You should also know and understand the plans of your workplace and community. You talk to family members about what to do in the event of an emergency by picking meeting locations, with one near home and one removed from home, in the event that your home is in the “hot zone.” You also develop a crisis communications plan for staying in touch if you are separated when the crisis occurs or afterward.

            The potential liability already exists for companies that do not properly plan for natural or man-made disasters. For example, after 9/11, several lawsuits were filed against companies, accusing employers of negligence for not having adequate evacuation plans or informing their employees about those plans. Some suits alleged the foreseeable risk of such an attack because the World Trade Center (WTC) was at risk for fires and had been the target of terrorist attacks in the past, specifically, in 1993. The court allowed cases to go forward against the WTC defendants because it agreed with plaintiffs that these risks were reasonably foreseeable. In re September 11 Litigation, 280 F. Supp. 2d 279, 301 (SDNY 2003).

            To mitigate the risk of liability from accusations of negligence, companies too must have plans, educate their employees about those plans and, most importantly, exercise those plans. The federal government has an excellent website with tools and information that can help you or your workplace formulate a plan.

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In time of crisis it is important for companies to establish a pro-active media strategy that includes working with a reporter to get a “predicate story” written. The predicate story tells the whole story—good, bad and ugly—in one place, and serves as a base line story for all subsequent media coverage.

Why is this a good idea? First and foremost, with many issues, and especially in a crisis or litigation, you want to get out ahead of a story. You want to get the facts in the press so that someone else does not get to the public first with distorted facts. The predicate story is the most effective way to do this for several reasons. 

Specifically, in a crisis, you want to get the story in and out of the media cycle as quickly and accurately as possible. A predicate story can help do this by being the definitive story on the issue. But, it can only be effective if the story covers all the facts—both good and bad. 

A predicate story also allows the subject an opportunity to get messages and on-the-record comments into the story. This will ensure that the coverage of the issue is balanced with your facts.

You may also be able to negotiate an embargo with a reporter writing a predicate story. In this agreement, a reporter will agree to not publish the story until a certain date. For example, if you are about to file a complaint against a defendant, you may negotiate an exclusive story to a reporter who agrees to wait to publish the story until the date the complaint is filed. This will give the facts in the complaint maximum effect in the court of public opinion, and generally bring attention to your case.

Start by finding the right reporter to write the story. It is always good to work with a reporter that you know and trust, but any reporter who has been balanced and thoughtful in the past is a good one to approach. Be sure to provide the reporter the resources he/she needs to do his/her job, such as access to key documents and people knowledgeable about the facts. Finally, remember that a predicate story will take some time to write; therefore, you want to start early to give the reporter an opportunity to investigate the facts and to get comments from others. If a predicate story is to do its job, it will take time. 

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For a public figure or corporation, apologizing requires more than simply saying, “I’m sorry.” An effective, sincere apology depends as much on the words you say as it does on the context: timing, meaning, setting and actions. But let’s start with the basics. What constitutes a good apology?

First, acknowledge your fault or offense, and apologize for it. This may sound obvious, but it is not. Too many public figures manage to sidestep this painful but necessary step. For all of the missteps Mark McGwire has made, he did directly apologize for using steroids saying, “It's time for me to talk about the past and to confirm what people have suspected. I used steroids during my playing career and I apologize.”

Many times, corporate executives are reticent to admit fault when things go wrong for fear of legal liability. Not acknowledging some kind of responsibility for the situation can easily endanger your customers’ long-term trust. There is always a way to craft an effective, sincere factual apology while avoiding damaging your position in litigation.

Second, offer your sincere regret for the actions or omissions and the effect they had on others, and take actions to make amends. In 2007, Jet Blue Airlines offered a public apology to its customers for a terrible week of delays and cancellations that left many of its customers stranded. In response, it issued an effective apology, which began: 

Dear JetBlue Customers,

We are sorry and embarrassed. But most of all, we are deeply sorry.

Last week was the worst operational week in JetBlue’s seven year history.

Jet Blue also did one better—it created a Jet Blue Customer Bill of Rights that provides guidelines for what customers are entitled to when various types of delays and cancellations occur. Similarly, as we recounted a few weeks ago, Johnson and Johnson took responsibility for its Tylenol crisis and responded by creating tamper-proof packaging. The creation of “new facts” makes the apology more effective.

Third, don’t allow the drip, drip, drip of truth to render your apology insincere, or don’t 99 percent apologize. When former Senator John Edwards publicly apologized in 2008 for his 2006 affair with Rielle Hunter, he acknowledged that he was previously untruthful with the public about the affair. 

In 2006, I made a serious error in judgment and conducted myself in a way that was disloyal to my family and to my core beliefs.  I recognized my mistake and I told my wife that I had a liaison with another woman, and I asked for her forgiveness.  Although I was honest in every painful detail with my family, I did not tell the public. When a supermarket tabloid told a version of the story, I used the fact that the story contained many falsities to deny it.  But being 99% honest is no longer enough. 

But even worse, he denied in that apology that he fathered Ms. Hunter’s baby with or without knowing the truth, saying, “I am and have been willing to take any test necessary to establish the fact that I am not the father of any baby, and I am truly hopeful that a test will be done so this fact can be definitively established.” His decision to continue denying paternity required him to make yet another public apology in January 2010, saying, “It was wrong for me ever to deny she was my daughter and hopefully one day, when she understands, she will forgive me.” His repeated denials also ensured that his credibility will forever be questioned. 

Fourth, don’t wait until the “perfect time.” The right time to apologize is as soon as you realize that you or your company is responsible for an act or omission. Waiting too long can result in your audience feeling as if anything you do is “too little, too late.” 

Fifth, know your audience. Even though you may be apologizing to family, friends, customers, sponsors or others, either personally or through appropriate channels, you cannot leave out the media. Ultimately, the media will transmit your message—often with editorial comments—all over the world. Let the media be part of the process, and answer their questions. They are the best way for you to get your story, your facts and your apology into every article written on your particular crisis.

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Lawyers can get better access to all the facts and documentary evidence than non-lawyers because they enjoy the protection of the attorney-client privilege—i.e., they cannot be compelled to testify concerning their legal advice to their clients, or the knowledge they obtain in the course of being able to provide such advice, or the documents they review in determining those facts. 

By contrast, non-lawyer advisors, even those public relations firms retained by law firms to assist in litigation, do not share this protection: their documents may be subject to a “qualified” privilege, but there may be occasions when, notwithstanding that privilege, they will be forced to disclose to the opposition their written advice and strategic documents provided to lawyers that have hired them. And in any event, they will almost never be given the protection of the attorney-client privilege to avoid testifying to conversations to which they have been privy because, as non-lawyers, they cannot claim to be rendering legal advice. Indeed, if they are present while lawyers are providing such advice to clients, they may actually create a waiver of the privilege, leading to the horrifying possibility that even the lawyers and clients may be forced to testify as to what was discussed. 

Thus, lawyers need to learn how to talk to the media directly. They have access to the facts and for that reason are more credible in the eyes of many reporters. They also know the legal issues and risks involved in the litigation and won’t be as likely to make an error that could lead to a damaging public comment that prejudices the case. And most importantly, they can work with the client and other lawyers to develop a believable message, based on the facts, that can drive and command the message in the media, correct factual distortions pushed out by the other side and avoid poisoning of the jury pool.

But in order to be most effective, lawyers enjoying the benefit of the privilege must learn the basic ground rules for talking to the press. This will be a first in a series of blog posts explaining both the ground rules as well as the special vocabulary and techniques for being most effective in talking to reporters.

For now, let’s start with four voices that can be chosen and, once chosen, must be agreed to ahead of time by a reporter and/or his or her editor.

First, “on the record” means speaking with attribution, a name and identification as the lawyer in the case.

Second, “on background” must be defined ahead of time, since many people, reporters and non-reporters alike, mean different things by this expression. The best definition should be “on background—by this I mean you can use my quotation, but identify me only as a ‘spokesperson’ or ‘lawyer for’ and don’t mention my name.”

This is often confused with the third expression, “deep background,” which is why both the second and third must be defined and agreed upon by the lawyer and the reporter before proceeding. “Deep background” means “you can use my facts as long as you do not attribute them to me, or if you have to use any attribution, then you can use something anonymous like a ‘knowledgeable source’ or ‘source familiar with the situation.’ Or you can use the fact without any attribution at all and confirm the fact with others.”

Finally, there is “off the record.” Many people use that expression to mean “on background” or “on deep background.” It is highly recommended that “off the record” be followed by this statement: “You must agree that you cannot use what I say at all unless I change the ground rules and allow you to. You cannot mention the substance of what I say to anyone or that I am saying it. I am telling you this only for your own understanding and for no other purpose.”

In other words, don’t use “off the record” if you can avoid it. And if you must, use it only to explain a complicated problem that you don’t want to see in print at that moment in time. 

On the other hand, we advise that even if you decide to use “off the record” and fully trust the reporter or editor who agrees to that ground rule, always be careful since many reporters, even in good faith, might unconsciously repeat the information and not even realize they are violating the ground rule. Thus, we always assume that even an “off the record” comment might be repeated or used, so we never use this expression to communicate something that is not a fact that can be documented and proven. 

In subsequent postings, we will offer examples of the use—and misuse—of these different voices, as well as vocabulary that should be used and communication techniques that work best with reporters.

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We’ve heard a lot about recalls in recent weeks. The most famous recall of all happened 27 years ago. In September 1982, seven people died from taking cyanide-laced Extra-Strength Tylenol, Johnson and Johnson’s best-selling product. J&J didn’t dither and immediately recalled 31 million bottles from store shelves, offering replacement products in a safer tablet form, free of charge. Two months later, the company reinstated the product with tamper-proof packaging, and a year later, it had 30 percent of the $1.2 billion analgesic market, down only 7 percent from its share before the poisoning—that market had represented 17 percent of the company’s income in 1981. (For more information, see Judith Rehak’s article “Tylenol made a hero out of Johnson and Johnson: The recall that started them all,” published in the New York Times on March 23, 2002.) And while the stock stumbled, only two months after the recall it recovered its 52-week high. 

It was unprecedented. A voluntary recall? J&J was feted in the press as a hero and as “Exhibit A” on doing it right in every crisis management, product liability and PR class anyone has taken since.  

It wasn’t the fact of the recall itself, but the timing. J&J acted immediately upon the first reports. And it did something proactive to prevent the same event from occurring again, even though it wasn’t the company’s fault in the first place. 

This follows two major rules of crisis management that are particularly important to mitigate the risk of future lawsuits and damages.

First, telling all the bad news yourself. The drip, drip, drip of bad facts is never good. Getting out all the facts as soon as you know them is critical and adds to the company’s trustworthiness. It can also mitigate any future negligent claims because getting out the bad news means you are trying to forewarn people of the risks.

Second, creating good facts can counteract the bad. In the Tylenol case, the company quickly created “tamper-proof” packaging to prevent such incidents in the future. The fact that the company cared so much about product safety that it went the extra mile to create new safeguards also had a “halo” effect. Customers perceived this fact to mean that if the company was this serious about safety in this area, then it must have strict controls in others.

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