Few words bring a C-Suite conversation to a screeching halt like, “We need to think about litigation.” Instead of killing the conversation, it should start a conversation … between the legal team and the communications team.
Attorneys’ primary goal is to limit their clients’ exposure to legal liability. Communications teams’ primary goal is to limit damage to their clients’ reputation. In the courts, things take a long time to develop. Weeks, months, years can go by without any significant movement. In the court of public opinion, things move very fast. Reputation damage is measured in hours and minutes.
That’s why communications teams want to be proactive, to get ahead of the narrative and tell their side of the story as quickly, clearly, and honestly as possible. Meanwhile, legal teams often pull in the opposite direction, concerned that any statements made will be admissions of guilt or negligence opening the door to (further) legal jeopardy.
The optimum approach lies somewhere in the middle: a dynamic, proactive communications effort within guardrails established by counsel. Unfortunately, this rarely happens.
Concern over litigation usually takes over, making things overly reactive and cautious. This stymies attempts to tell a story quickly, clearly, and honestly. Instead, the statements issued by the communications team are slow, guarded, and overly-nuanced. And sometimes too clever by half. Sometimes, organizations end up saying nothing at all out of fear, paralysis, or simply taking too damn long to respond.
Even if a proactive strategy is impossible or undesirable, it is crucial that the legal and communications teams work together to avoid self-inflicted damage.
We once had a client’s legal team file a routine motion to dismiss a lawsuit against them. This is a perfectly acceptable legal strategy even though it had almost zero chance of succeeding. In the court of law, it was met with a shrug and a swift denial, as most such motions are.
In the court of public opinion, however, this routine legal action blew up spectacularly. Plaintiffs’ counsel used this routine motion to vilify our client as callous and uncaring. The communications team could have anticipated and planned for this, but they didn’t know about it until reporters asked for comment about the plaintiffs’ press conference.
Caught flat-footed, the team struggled to assemble a statement and obtain necessary approvals. The first round of stories noted the company had not responded to a request for comment. Failure to comment played right into plaintiffs’ assertion that the company was callous and uncaring.
Rarely does litigation come out of left field. Lawsuits are reactions to things that happened, or didn’t happen, or should or shouldn’t have happened. Litigation is tied directly to an organization’s risks. If you know your risks, then you know the kinds of lawsuits you may one day face.
The fact is, you should always be thinking about litigation when it comes to crisis preparedness. Litigation is a real and present danger no matter what you do. So the point is not to worry about if or when it happens, but to accept that it will happen and be prepared. However, holding back on your communications to protect your reputation won’t help and will tend to make matters worse, especially if the communications team is left in the dark as to legal strategy.
The long tail of litigation will work itself out over time. Reputation damage is immediate and can be lasting. It can even outlive legal liability.
The next time someone in the C suite says, “We need to think about litigation,” imagine how the demeanor in the room would change if the general counsel and chief communications officer replied together, “We’ve already thought about it, and we have a plan.”
Need help? Kith facilitates crisis preparedness workshops that will help your company attain the clarity, trust and speed you need to respond confidently – no dithering! – to any crisis. We’d be happy to have a conversation about how we can help your company be ready to chart an effective course to reputation protection. Is your business ready to handle a crisis? Take our Crisis-Proof Your Business quiz and gain valuable insights to prepare your business for any
