Product Liability Litigation: Get Your Story Straight


From The Cat in the Hat to The Bourne Identity, Americans love a good story. We cheer the good guys, jeer the bad guys, feel sympathy for those who’ve been wronged and root for justice to be served. The human dramas that capture our attention are played out on the fictional stage of prime-time TV or the real-world newscasts that precede it each night.

Stories rule in the courtroom, too. From the O.J. Simpson trial, to the Scooter Libby litigation, to the Erin Brockovich case, juries and judges have time and again shown their attraction to powerful narratives.

In the realm of product liability litigation, a keen understanding of this phenomenon gave the plaintiffs’ bar a leg up on the defense for years, as winning judgments and record-breaking settlements were handed down with increasing frequency at the close of the 20th century.

But, after taking some lumps from judgments and mammoth jury awards, the defense bar is catching up in learning how to apply the principles of telling a good story that presents a credible and sympathetic platform for the facts that ultimately decide a case.

Both in the courtroom and in the court of public opinion, a strong case is built with the same pieces that comprise a good story. Here’s a quick primer on the basic elements of storytelling that any legal or PR professional should know before taking on the playground bullies of the plaintiffs’ bar. The side that best manages these elements will ultimately control the story, stay on the offensive and see those victories translate into tangible gains in the courtroom and beyond.

Character Development

All good stories revolve around three key roles: The sinner, the sufferer and the savior. By their very nature, class action lawsuits put the defense at an extreme disadvantage in this regard. Because the plaintiffs ostensibly are a group of offended parties, the defense must swim upstream against this initial perception.

But all is not lost. By demonstrating an ongoing commitment to fixing the problem that brought about the suit in the first place, expressing sympathy for those injured, and identifying root causes that fall outside the purview of the defendant, the sinner role can be cast aside for the more desirable parts of savior, or even sufferer.

  • Case Study: Toy Recalls. During the lead paint recalls that rocked the toy industry in 2007, Hasbro— which never initiated a single recall—saw the writing on the wall. With the entire industry under siege and the plaintiffs’ bar trolling for potential class action clients, it seized the opportunity to differentiate itself from the competition by instituting a “Total Safety Program” that other toy companies could emulate. The move allowed Hasbro to claim the coveted savior role and avoid being lumped into the sinner category for nothing more than sheer association.

Plot

Just as the plot serves as the meat of a good story, messages are the meat of a communications campaign. And just as a great writer takes pains to balance sensationalism and reality, legal and PR professionals must ensure that the messages they employ strike a delicate balance as well.

Defendants in product liability cases must be sure to communicate sympathy, but not culpability. And above all, they must craft messages that do not increase a client’s legal liability.

  • Case Study: Greenies. When S&M NuTech’s leading pet dental treat, Greenies, came under fire for allegedly creating esophageal blockages in dogs, the first response of the company’s founders was to declare to the media “our products are perfectly safe.” The problem was that those words could undermine their case when projected on a PowerPoint slide in a courtroom after numerous veterinarians’ affidavits to the contrary were entered into evidence. Soon thereafter, the message was altered to “when used properly, according to the directions on our packaging, our products are perfectly safe.” Ten well-placed words protected S&M NuTech against further liability.

Illustrations

Anyone who ever read books as a child understands the power of illustrations to tell a story. In the age of new media and 30-second news spots, controlling the pictures is of paramount importance. Study after study affirms the fact that people are most influenced by what they see. So, ensure that the lasting images of the case are the ones that relate your side of the story.

  • Case Study: Spinach. When an E. coli scare all but crippled the spinach industry in 2006, the first pictures of the story didn’t paint the industry in a positive light. The visuals that accompanied news reports running from coast to coast were of unskilled migrant workers working the fields and spinach being pulled from shelves. Once farmers from Northern California opened their doors to visual media, the pictures changed to those of modern safety treatment facilities and skilled technicians taking great measures to prevent contamination. Weeks later, the E. coli scare was old news and the industry was back on its feet.

Narration

One of the biggest decisions an author must make is determining who’s going to tell the story. Will it be a first-person description, or a narrated account of the events surrounding the story? Legal and PR professionals must make the same decisions, because—as we know all too well—the messenger is often just as, if not more, important than the message itself.

  • Case Study: Pet Food. When the pet food industry was confronting the biggest recall in its history, it enlisted well-known veterinarians and food scientists across the country to speak with the news media and to calm nervous pet-owners. Because those telling the public that the overwhelming majority of pet food products were safe were veterinarians and scientists who had no financial stake in the outcome of the recall crisis, their messages carried greater trust and credibility—thus making the story more believable and effective.

CONTACT:

Gene Grabowski is senior vice president of Levick Strategic Communications. He can be reached at ggrabowski@levick.com.

This is excerpted from PR News' Top Case Studies in PR Vol. 4. To order this guidebook or find out more information, please visit www.prnewsonline.com/store/28.html.




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