We Need to Talk About Potential Litigation

October 24, 2022

If you’re ever looking for a way to kill a conversation, raise the specter of litigation. It’s more effective at ending a conversation than feigning death, belting out “Don’t Stop Believing” or pulling the fire alarm.

Worries over litigation can stymie productive discussions over how to proceed strategically during a crisis. This worry – very real as it is – can nonetheless be unintentionally crippling.

 I’ve been in numerous crisis situations where there’s palpable tension between the attorneys and communicators over our public-facing strategy. On one side is a desire to say as little as possible because everything we say can be quoted, misquoted and just plain taken out of context in a legal filing. The other side wants to say as much as possible to ensure our version of the story is being heard because all that’s in the media is someone else’s version of the story.

There’s a wide gulf between “no comment” and “We’re sorry for what happened and here’s what we’re doing about it.” To a strategic communicator, “no comment” is just about the worst thing we could say. To an attorney, “we’re sorry” is just about the worst thing we could say. 

But saying “I’m sorry” isn’t usually as bad as some think it is, and neither is “no comment.” Both can be used strategically.

Back to our conversation killer, “We need to think about potential litigation.” Odds are pretty good an attorney interjected that line into the dialogue, and that’s what attorneys probably should be thinking about. And you know what – litigation is not only always possible, but also inevitable. 

 Which is why the conversation must go on. Open dialogue among the executive leadership team, legal counsel and communications team is critical to making strategic decisions about how best to protect reputation. Why? Two reasons come to mind.

First, the communications team is best positioned to defend an organization’s public reputation when it understands the legal team’s strategy. What does a win look like? What is our main legal reasoning supporting our position? Are we willing to settle?

 Second, even routine communications and legal filings can derail a strategy if they surprise either an attorney or a communicator. The legal team for a client facing a lawsuit recently did what any attorney practicing in that state would do for their client: file a motion to dismiss. It was a routine, procedural motion that seldom works but sometimes does. The problem was, the other side used that filing to argue we weren’t as sincere in our apology and, even worse, that we were arguing the plaintiff was at fault. 

The point here is NOT that the filing should have been shelved. It’s that the communications team, had they known the legal team was going to file it, could have developed a communications strategy around the filing. Thus, the filing would have remained a tool in the legal team’s arsenal to protect the client’s legal rights while the communications team protected the client’s public reputation.

So, please, don’t let a fear of litigation kill the conversation. The threat of litigation is both a legal and a communications challenge, and it’s best overcome when legal and comms work together through open, trusting and constructive dialogue. Instead of saying, “We need to think about potential litigation,” say this instead:

“We need to talk about potential litigation.”

Jeff Blaylock

Jeff is an experienced strategic communications and public affairs professional who has advised organizations through challenging media and political environments, public affairs campaigns, reputation management, message development and crises.