Crisis Litigation: You Can’t Just Tell Your Story in Court

To the extent that there ever was true separation between events in court and the world outside, those presumed walls have been largely torn down. The Internet and, in particular, blogs have rendered the old notion of keeping courtroom information “out of the papers” seem rather quaint.

In just the past five years or so, newspapers and television have, perforce, relinquished their role in determining what news emerges or does not emerge during corporate litigation. The dozen or so bloggers who follow your industry are the ones who will uncover the details and put them out there for the world to see. “They’re the ones feeding the mainstream media,” says Charles L. “Chip” Babcock, a nationally recognized litigator with Jackson Walker L.L.P. in Dallas.

Combine the blogs, Twitter, Facebook, YouTube and all other Web-based social media, with their potential to spread information virally and instantaneously, and you’ll understand why Babcock believes every company should have a litigation communications team in place and ready to go, in the same way oil companies have disaster response teams prepared for the inevitable spills.

Your team should include outside counsel, in-house counsel, outside crisis communication specialists and your corporate communications chief, Babcock says. Begin with the assumption that you will be sued and that the case will draw media interest, and then make sure your team knows exactly how it will respond.

In an age of high-stakes litigation and instant communication, the margin for error is razor thin, and the risks to your brand are incalculable. Among its fundamental tasks, a litigation communications team must:

â–¶ Speak with one voice. “If you have multiple people speaking, unless they are really tightly coordinated—which never happens—then you’re going to be mixing your messages,” Babcock says.

“From a litigation perspective, you might have somebody in a company saying something that is off message, not true or ill-informed. That will come back and haunt you during litigation,” says Babcock.

â–¶ Bridge the no-comment/comment gap. Lawyers and companies being sued often clam up for fear of angering the judge or having their words used against them in court. Yet common recourse to “no comment” was self-defeating even in the days when a handful of gatekeeper reporters from the newswires or the local newspapers reigned supreme. Today, “no comment” is an invitation for the entire world to fill in the blanks. “It can be perceived as an arrogant, unhelpful response and might imply that you couldn’t care less about this [lawsuit], as in, ‘Go away, don’t bother us,’” says Babcock.

If you truly can’t comment on a crisis because you don’t yet have solid facts, provide a placeholder quote, something to the effect of, “We are investigating this matter and will respond in detail when the investigation is complete.”

When you do have facts and are ready to comment, be sure that your message is carefully thought out.

Babcock recalls a recent case in which several companies were being sued following an accident that cost many lives. “My client followed the protocol we had set out: We had one spokesman, and we made no comments until we knew what we were talking about,” he says. “We had help from a very strong regional [crisis communications] company, and a disciplined approach.

“Another defendant in the case did not take that approach. The manager of the local office started talking to the press a lot, and he was saying things without counsel or regard to the legal consequences…and a lot of things that were not, in the end, true. His comments made the plaintiff papers a year or two later and were used against his company….Their legal position was compromised,” says Babcock.

â–¶ Know when to play defense. Understanding the media during litigation isn’t only about getting your own message out.

A disciplined team must also be monitoring the media for signs of the opposition’s strategy. “If you’re monitoring the blogosphere and traditional media, you’ll see the same themes and words being used repeatedly,” advises Babcock.

“You’ll see documents surfacing that could only come from one source: the lawyers on the other side. If there are confidential documents that have been exchanged during discovery and you think the other side is releasing those documents to the press, you can talk to the judge about that,” Babcock advises. “If there are comments being made by the plaintiffs’ lawyers, you can sometimes use those against them with the court. If the court is irritated by what is being said…that can put a damper on your opponent’s willingness to speak in inflammatory, derogatory terms.”

Even if the opposition’s media tactics cannot be so challenged, you can discern vital elements of their strategy by keeping a close eye on the blogosphere, Babcock says.

â–¶ Know when to go on the offense. A media assault on the opposition before, or during, litigation can easily backfire if it makes you look as if you are attacking or belittling someone who has been victimized by a company mistake.

On the other hand, if you believe you have been wronged by your opposition, a very pointed media campaign may be called for. The classic case was when General Motors sued NBC over a report on exploding gas tanks in GM trucks.

The automaker staged a satellite press conference to expose how NBC had used explosives to detonate the tanks for video purposes, without telling viewers. GM’s tactic was potentially risky, as the company might have been depicted as blaming the messenger for disclosing a serious safety problem. But the evidence was solid. NBC apologized and paid GM’s legal bills for the case.

â–¶ Ensure that outside counsel is media savvy. Of all the members of your litigation communications team, your outside counsel may be the last one to fully grasp the importance of a concerted media strategy, Babcock says. “Very few outside counsel understand the public perception phenomenon. It’s not something you take a course on in law school, and it runs counter to the setup of the legal system.

If the public, as expressed through the bloggers and the mainstream media, get where you’re coming from and understand it, then that can have all sorts of positive effects on what you are trying to do in the courthouse.” PRN

[Editor’s Note: This article was excerpted from the book The Communicators: Leadership in the Age of Crisis (Watershed Press, 2010), by Richard Levick, president and CEO of Levick Strategic Communications.


Richard Levick, [email protected].

Lawyerly Advice: Get Third Parties READY IN ADVANCE

Here are more crisis litigation best practices from Richard Levick, president and CEO of Levick Strategic Communications:

Enlist potential third-party supporters ahead of time. There might be cases where neither the client nor outside counsel can speak on the record. Disinterested credible voices may then be needed to publicly speak or publish on your behalf.

Prepare Web resources to update key audiences. Keep reporters, employees, customers and business partners in the digital loop on case developments. As needed, set up “dark sites,” which are Web sites fully formatted and ready to launch.

Fully optimize your online communications tools. If and when your team decides to issue a public statement or response, you will reach the greatest number of search engine users with interest in the litigation.

Media train all spokespersons, including the lawyers. They customarily practice their opening and closing arguments before going to court. They need to be equally prepared to present their case in the court of public opinion.

If the lawsuit goes to trial, make sure that communications professionals attend each day. Ensure that favorable testimony can be transcribed on-site for distribution to all reporters in the audience.