PR and Litigation in a Crisis

​THERE WAS A TIME when crafting a communications strategy for litigation was simple. Most often, it boiled down to two simple words: No comment. Back then, three broadcast networks controlled television news. News reporters waiting outside the courthouse, pens and notepads at the ready, could be turned away with the wave of a lawyer’s hand. Today, litigation takes place in a whirl of around-the-clock scrutiny and nonstop commentary from thousands of cable news pundits, blogs, tweets, Facebook posts, and YouTube videos.

Take, for example, the case of BP. The company appeared to have been caught flat-footed in the aftermath of the 2010 Gulf Oil spill, even though it had shortly before been named as a finalist for a federal award honoring offshore oil companies displaying “outstanding safety and pollution prevention” and supposedly had a crisis plan at the ready. This unfortunate disconnect came as a shock to most crisis experts, who expected that such a disaster would have been contemplated in the oil company’s crisis planning simulations. The problem was that BP’s crisis plans had not been melded to the litigation plan, which the company’s lawyers implemented almost immediately with apparent disregard for how their actions would be perceived by the public, lawmakers, and regulators. It is possible that the company could have saved billions of dollars if it had executed a coordinated crisis communications and litigation strategy.

In the digital age, the best crisis management strategies are formulated long before the crisis ever strikes. But in addition to advance planning, there must be mutual respect between the litigation team and the communications professionals. Here are the most important crisis communications elements to apply before, during, and after a crisis to protect your litigation strategy.

What to Plan For

The company’s crisis management team should begin by preparing a list of predictable crises that might endanger the company and lead to litigation. The list can begin with something as simple as an electrical power outage, a labor dispute, a data breach, a board member’s malfeasance, or a hostile takeover. Then, the team should make another list of unpredictable events, including more remote possibilities, such as executive kidnapping, product tampering, terrorism, or a plant explosion. The team should think deeply about all of these potential incidents and identify what the company’s weak spots would be if such events occurred.

Create a Plan

The next step is to prepare support materials, such as talking points, letters to customers and suppliers, white papers, and checklists; they can then be edited as needed. Communications protocols for addressing employees, the news media, and customers should be included. Set up a schedule and assign team members to review the plan at least twice a year.

Craft Statements

Next, the team should identify the strongest, most succinct messages and eliminate actions and statements that would be inappropriate for any reason. Anyone who will have the responsibility to talk with the media should be trained to use these basic statements to answer news media inquiries until the team has crafted more detailed messages about how the organization is addressing a specific element in the incident and any related litigation.

The prepared statements can address both positive and negative potential outcomes for each given case.

Digital Response

The communications plan must include the Internet and digital communications. For example, the team should establish a dedicated “dark” Web site that can be activated quickly and optimized so it can be easily found by the media and other important audiences in the event of a crisis. The dark site serves as the company’s information source for a specific issue in the event of a crisis. That way, the corporate Web site can maintain its focus on marketing and selling.

Well before a crisis, the team should identify and begin monitoring influential blogs and Facebook pages connected to the company’s industry or organization, and stay current on these so that the information is available when needed. Be ready to track all online actions and statements about the company, especially as it relates to the incident in question within the first hour of a crisis. Make sure your IT team understands its role and is ready to work with you when the crisis hits.

Control the Narrative

Plaintiffs’ attorneys and advocates have become adept at dominating the online keywords that the news media and the public use when searching for information about litigation and corporate crises. For example, in class-action litigation resulting from a food recall, plaintiffs’ attorneys would include terms such as “tomato,” “spinach,” and “cantaloupe” in addition to “foodborne illness,” “recall,” “lawsuit,” or “outbreak.” At the moment an instance of contamination is discovered, food companies need to engage in Search Engine Optimization (SEO) and Search Engine Marketing (SEM) campaigns. These allow companies to rank their response messages at the top of the list when their risk terms are queried. Companies that do the same during normal operations not only eliminate the need to scramble when trouble arises; they create a compelling safety narrative that plaintiffs will have to overcome.

Historically, perhaps the best example of how the defense can turn the tables by controlling the online narrative is the 2011 litigation against Taco Bell. In that case, a plaintiffs’ attorney claiming to represent aggrieved customers, alleged that the restaurant’s “seasoned beef” didn’t meet USDA requirements. Prior to the lawsuit, Taco Bell’s Facebook Page already had 5.7 million fans, its Twitter profile had 80,000 followers, and its YouTube videos had three million visitors. As such, there was already a massive audience receptive to the company’s messages for when it mattered most.

Once the lawsuit was filed, Taco Bell launched an SEO campaign that brought Web searchers to its side of the story first. The “Food Facts” page on the company Web site, which underscored the company’s commitment to only the highest-quality ingredients, likewise garnered top search numbers. The court of public opinion thus trumped the plaintiffs’ hopes for favorable reception in courts of law, and the litigation died.

Train a Spokesperson

The company needs to select a strong spokesperson who fits the specific litigation crisis. If the issue affects mothers, a female employee who is a mother would make a good choice. If the issue centers on a scientific matter, then an employee who is a scientist would make a better spokesperson. The important thing to keep in mind is that your messenger is as important as the message when it comes to influencing your audience.

The spokesperson must be prepared to speak with the media in a crisis so proper training for all potential spokespersons should be provided and refresher courses should be offered periodically. The team will want to be sure that at least one of the people providing the training has been a journalist during part of his or her career.

Usually, the CEO should not be the lead spokesperson. But in the worst crises, the CEO will have to be the face of the company, because the news media and customers need to be reassured that the situation has the full attention of the boss. Anything less risks creating intense media criticism and customer distrust.

Recruit Allies

The team should also develop a list of third-party experts who can speak publicly about the company in a crisis, lending support or presenting a third-party defense of the company. Allies might include academics, think-tank professionals, authorities in your industry, consultants in your field, and even politicians. In a crisis, third parties will be far more credible than employees.

Such allies are often more than supportive; they are simply indispensable to credibility. For example, one client of our firm, a leading businessman arrested for hosting a high-stakes poker game, was basing his defense on the theory that, as a game of skill, a private poker match could not be treated as an illegal gaming activity. There was case law to support this position but we anticipated harsh skepticism from his customers. Our solution was to recruit one of the nation’s leading gaming law experts and bloggers who’d never met our client and was not being paid for his support. The upshot was a public information outreach based on the expert’s commentary that explained this seemingly outlandish theory in relatively simple terms. The expert also testified in court. His appearances in the newspapers and on local television were effective in protecting the reputation of our client, who might otherwise have been a laughingstock.

Your crisis plan is your crisis team’s indispensable blueprint. It sets forth basic policies and procedures. It also allows for enough flexibility so that team members can take action in response to specific problems. When combined with a sound litigation strategy, your crisis plan will ensure that you have a better chance of prevailing in any legal challenge your company may face. Without it, even if you win in the court of law, you may still suffer defeat in the court of public opinion.

Gene Grabowski is executive vice president of LEVICK, a full-service communications firm with extensive experience and capabilities in crisis management and litigation communications, located in Washington, D.C., and New York City.