When 300 current and former employees of Nextel Communications, Inc. lodged complaints of racial and sexual discrimination against the wireless carrier last week, prosecutors
floated details to the New York Times just prior to filing the suit. Kent Jarrell, senior VP at the DC-based public affairs firm APCO Worldwide, explains the move this way:
By the time the story broke in the paper's June 20 late edition, the plaintiffs already had a leg up on the case.
The reality of litigation communications is that corporations will be vilified, no matter what, Jarrell told attendees at last week's PR NEWS Advanced Crisis
Management seminar in Washington, DC. And attempts in such situations to make lemons from lemonade are pointless.
"In litigation, there is no good news," said crisis expert Jim Lukaszewski, a veteran consultant based in White Plains, NY. "Here, the goal is to settle and get on with your
life. The check you write today is the smallest check you're ever going to write."
Lukaszewski noted that while trial resolution can take 18 to 36 months, the court of public opinion usually issues a verdict in less than two days. "Corporations will hardly
ever be perceived as victims and, therefore, won't win public sentiment," he said. (To underscore his point, he posted a cartoon of a judge, asking, "Ladies and gentlemen of the
media, have you reached a verdict?")
Guilt or innocence aside, the longer a case drags out in the public eye, the greater the likelihood that a company's image will be damaged to the point that lifelines such as
employee morale, customer loyalty and stock price are damaged. "Your reputation is only as good as the last negative allegation," Lukaszewski said. "An acquittal or a verdict in
favor of the defendant [corporation] is not news."
This point was further underscored in a presentation by Dow Corning VP Barie Carmichael, who chronicled her company's decade-long silicone breast implant battle - a crisis that
forced the company into bankruptcy in 1995 and continues to smolder to this day (PRN, June 5). Repeated scientific studies failed to produce evidence that silicone
implants endangered patients. But this did not absolve Dow Corning's reputation among consumers, Carmichael said.
Roles For PR Counselors
While PR is playing an increasingly critical role in litigation resolution, it's important to remember that litigation is a legal process, not a PR process, Lukaszewski told
attendees. As such, lawyers still have the final say. But communications experts can assure themselves a seat at the executive table by understanding the legal process, and by
forcing themselves to become linear/process-driven thinkers (a departure from the deadline-driven multi-tasking frenzy under which so many practitioners operate).
When a litigation crisis erupts, a good communications plan will spell out the situation, analyze likely outcomes, and present several strategic communication options. "You
should provide more than one option - including the option of doing nothing," Lukaszewski said. A good counselor will then make a recommendation to senior management, based on
the approach that will likely result in the least number of negative, unintended consequences," he said. The entire litigation communications plan should fit on one side of a
sheet of paper.
And this call for brevity isn't only in the interest of keeping CEOs' from tuning you out. "Everything you [put on paper] will become available to the [prosecution], usually
sooner than later," Lukaszewski warned. "Exclude parenthetical notes from documents and write less." Provide as little ammo as possible.
Other tips? Develop a document management plan to keep track of the dissemination of case-related information. And refer to your strategic exercise as "exposure management,"
not "reputation management." Attorneys and CEOs won't always connect the dots between reputation and survival - but they will recognize "media exposure" as a serious issue.
War And Peace
Perhaps the most critical role for PR, Lukaszewski said, is to convince senior executives to wage peace, not war - which means disqualifying attorneys who are out for blood
from the selection process. Corporate hubris (which he described as "testosterosis") is a tragic flaw that kills too many lawsuit-ridden companies. "Wars are messy, expensive
and take the most casualties. And they cause crummy trial visibility," he said. "They also become defining [career] moments for senior officers. People can lose their jobs over
[such events]."
A corporation that becomes defensive and attacks its opponents will only exacerbate the David/Goliath dichotomy and substantiate the plaintiff's role as victim, Carmichael
said.
What's certain is that the escalating trend in mass torts and criminal investigations of companies isn't going away any time soon. While President Clinton spurred a numerical
reduction in the total number of government employees, the number of DOJ prosecutors dedicated to criminalizing the white-collar set quadrupled during his tenure in office. "The
public wants more prosecution of corporations, and they want criminal litigation, not civil suits," Lukaszewski said.
According to Michael Buckley, senior managing director/director of U.S. litigation communications for Hill and Knowlton, more than 95% of corporate lawsuits end up being
settled eventually. It's just a question of how bloody they become before a truce is called. The axiom that best applies? Pay now...or pay a higher price later.
(Jarrell, APCO Worldwide, 202/778-1000; The Lukaszewski Group, 914/681-0000, http://www.e911.com; Buckley, Hill & Knowlton, 212/885-
0300, Carmichael, Dow Corning, 517/496-6470.)
Profiles In Jell-O
Corporate Behavior Patterns That Perpetuate Legal Trouble
- Denial of victims' legitimacy
- Victim confusion (the corporation can never be the victim)
- Testosterosis (waging war, not peace)
- Arrogance (not caring about the accusations at hand)
- Search for the guilty (sniffing out internal scapegoats)
- Fear of the media (avoidance suggests guilt)
- Navel-picking (stalling implies guilt)
Source: The Lukaszewski Group
Who's Behind The Podium
Picking the right spokesperson to represent a corporation during a lawsuit can be tricky. Lawyers tend to speak in negatives, which is non-communicative, Lukaszewski says.
"If they say things like, 'No, that's not true,' that's not a conclusive answer and you begin to slide down a slippery slope." But attorneys can be coached to control dialog in a
more positive light. "It's important to say what is true," when communicating case specifics, he says.
Overall, Lukaszewski believes lawyers make the best spokespeople in criminal lawsuits - particularly high-profile cases characterized by insatiable media inquiries. "Reporters
are rarely intimidated by PR people, but when the spokesperson is an attorney, he or she will have more control over journalists," he says. In civil cases, an operating manager
might also fill the role behind the podium - although a class action suit will eliminate this possibility if the corporate exec is a prosecutorial witness.
Crisis Rules Of The Road
Rule One: Take ownership - it's not the same as taking blame.
Rule Two: Recognize the difference between bad publicity and a crisis,
then calibrate your response accordingly.
Rule Three: Get the confirmed facts, and base your response only on them.
When possible, use research to help determine how to respond.
Rule Four: Recruit and use third parties to speak on your behalf.
Rule Five: Treat the media as conduits, not enemies.
Rule Six: Assume you'll be sued.
Rule Seven: Watch the Web as closely as the traditional media.
Rule Eight: Demonstrate concern, care and empathy.
Rule Nine: Take the first 24 hours very, very seriously.
Rule Ten:
Begin your crisis management program now by building your reputational assets.
Source: Michael Buckley, senior managing director, U.S. litigation communications, Hill and Knowlton