In 1997, DaimlerChrysler was slapped with a $262.5 million verdict in a case involving the death of six-year-old Sergio Jimenez. Jimenez, riding in a Dodge minivan manufactured
by Chrysler, was unbelted when his mother ran a red light and hit another vehicle, causing the boy to be thrown from the car. Although experts testifying in the case disagreed on
how the child was ejected - and the jury was not allowed to hear that the mother had caused the accident - the jury found the rear-lift gate latch was defective, causing the
child's death.
But DaimlerChrysler lost the case before it even began.
While the plaintiff's lawyers conducted media briefings during the trial, Chrysler failed to do any litigation communications throughout the entire case. Scathing media
coverage followed, and the blow to DaimlerChrysler's reputation was, in some respects, worse than the financial damages. A Wall Street Journal article about the case, for
example, was headlined, "Testimony Painted Company As Slow to Bolster Safety, Resistant to Recall Effort."
"We were blindsided by the verdict," says Elaine Lutz, litigation communications manager at DaimlerChrysler (Auburn Hills, Mich.), who shared the story at a recent PR
News-sponsored "Strategically Managing PR & Legal Concerns" Webinar. "We didn't have a media-readiness plan for such an adverse verdict."
Following the Jimenez case, Steven Hantler, assistant general counsel at DaimlerChrysler, decided the company's litigation communications efforts had to change - and fast. He
proposed to then-CEO Bob Eaton that the company's PR and legal departments form a united front to work with the media.
The benefits in bringing the legal and PR functions together could be seen in the contrast in media coverage of a class-action verdict against DaimlerChrysler in 1999 covering
75,000 owners with driver-side airbags; the lead plaintiff in the case, Louise Crawley - who was pregnant at the time of incident - claimed the airbags vented at the 3:00 and 9:00
positions, causing burns to her body.
Whereas DaimlerChrysler was in a reactive mode for the Jimenez case, during the Crawley case, the company's PR and legal team took a proactive stance. It worked hand-in-glove
with the trial team on the key message points to convey to the media, such as the idea that blaming the company for burns incurred when airbags were released was akin to blaming
bulletproof vest manufacturers for bruises people might get when bullets ricochet off of their vests, protecting their lives.
Although DaimlerChrysler may have lost the case in court - a jury awarded $58.5 million to the 75,000 class members - Chrysler won in the court of public opinion. "When
somebody saves your life or that of your unborn child, the normal response is to thank them. Louise Crawley chose to sue...the legal system is nuts," wrote USAToday in
response to the verdict.
The Crawley case illustrates how PR execs and attorneys have to learn to work together when facing legal challenges. It may seem onerous to PR execs but, in an increasingly
litigious society, they have little choice.
PR execs "don't need to be lawyers, but they have to know an awful lot about the legal landscape in order to be effective," says Michael Lasky, co-chair of the litigation
department and a partner of the employment practice group of Davis & Gilbert LLP (New York City), which specializes in marketing communications law.
For instance, if a PR manager during an executive meeting about a legal issue blurts out, "When is this going to court?" it will probably betray his or her ignorance about
legal issues. "It's what a call the 'Law & Order' syndrome," Lasky says, referring to the ultra-popular TV show and its myriad knockoffs. Invoking such a question "suggests
that it's not an actual case, which is not so," he adds.
In order to familiarize themselves with legal parameters, PR execs must be able to answer the following questions: What is meant by discovery? What are testimonials? What is a
third party? What is a motion? What is an oral argument? "The more you arm yourself and equip yourself with information about attorney-client privilege, the more respect you
earn," Lasky says.
Contacts: Michael Lasky, 212.468.4849, [email protected]; Elaine Lutz, 772.785.6048, [email protected]
Determining PR's Role and Liability In A Crisis
- To whom does the PR function report?
- Protecting the confidentiality of the communications
- The attorney client privilege
- The attorney work product privilege
The Attorney Client Privilege
- Communications between client and lawyer for the purpose of providing facts to the lawyer so the lawyer can provide legal advice or communication containing the legal
advice itself- Note that disseminating the facts or advice to a "third party" may destroy the privilege
The Attorney Work Product Privilege
- Protects the strategy and research of the lawyer, and its agents, in anticipation of litigation
- If used correctly, the work of the PR professional may be protected from disclosure by this privilege
- PR professionals must be sensitive to try to have his/her work protected by the attorney work product privilege if PR is going to be an important part of the crisis management
team
How To Protect The Work Product Privilege
- The external PR firm should be hired by the client's law firm representing the client in the crisis investigation or litigation
- The external PR firm should use an appropriate engagement letter
- Internal and external PR professional should work at the direction of legal counsel
- In written communications to legal counsel; use key phrases such as "to help you develop your legal strategy
- Write on the top of the document "This is a privileged communication" or an "Attorney Work Product Privileged Communication"
- Avoid the "efficiency" of e-mail in favor of the less efficient, but more sensitive conversation, to disseminating or soliciting information
Liability Arising From Pr Activity
- Internal PR professionals:
- Biggest potential liability is not a personal liability, but the risk of destroying the attorney client or work product privilege for your employer
- Effect: Opposing side in the civil lawsuit obtains documents in pre-trial discovery that were intended to be confidential and not discoverable
- External PR firms
- External PR agencies have to be especially concerned about their independent liability (separate and apart from their client's potential liability)
- This liability arises if the PR agencies take any action to assist their clients in disseminating a message that is either false or misleading