What about litigation?

 

In my experience, at some point in the discussions during a crisis someone will utter a phrase that will kill the conversation.

“We need to think about litigation.”

This sounds like a pertinent and important thing to think about but this statement is as useful as the head of communications saying ‘it’s blowing up on Twitter: that’s to say, not very useful.

That might seem blunt but let me explain.

There is an ongoing, spirited dialogue between communicators and legal teams about what you can and can’t say in the wake of a crisis or critical moment. This is a natural and beneficial tension to have in the room.

Communications want to get ahead of the narrative and be proactive to allow you to tell your side of the story as quickly, clearly and honestly as possible. Meanwhile, legal will be pulling in the opposite direction, concerned that any statements made will be admissions of guilt or negligence opening the firm up to legal action.

The optimum approach lies somewhere in the middle: a dynamic, proactive communications effort telling as much as is possible, being steered by Legal where a statement may have other connotations or pull the company in a dangerous direction.

Unfortunately, this rarely happens.

Concern over litigation usually take over, making things overly reactive and cautious. This stymies your attempts to tell your story quickly, openly and honestly.  Instead you are slow, guarded and overly-nuanced. In some cases, organizations end up saying nothing at all.

However, in the same way that social media is just ‘there’, so is the threat of litigation.

There are multiple ways and places companies can face litigation in the US which make it impossible to get a complete picture but some of the numbers available are staggering. One report I saw recently identified almost 15,000 product liability cases being filed in Quarter 4 of 2017 alone.  That’s 125 cases each day. The same report also recorded 1,500 cases of commercial litigation and 5,600 employment cases all in the same quarter. (See the report.)

These eye-popping numbers simply reinforce my belief that if you have a public crisis, one that has been covered in traditional, social or trade media, it’s likely that formal litigation will be filed against you. It could be silly in its nature or it could be incredibly serious but whatever the case, you must be prepared for litigation.

So litigation is a real and present danger, particularly in a crisis, no matter what you do.  So the point is not to worry about if or when it happens, but to accept that it is likely and be prepared. However, holding back on your communications to protect your reputation won’t help and will tend to make matters worse.

And, even though I’m biased, this isn’t just the perspective of a communicator.

I worked closely with Home Depot during their 2014 data breach and their CEO at the time, himself a lawyer, made a similar case in a recent interview.

“This is where it helped being a lawyer because the help the lawyers will give you is not [going to] help. Because lawyers are going to say things like ‘don’t admit you did anything wrong because then you will be subject to litigation’.  But you need to understand that all that matters is taking care of your customers. So I actually [said] that nothing was going to be written by our legal team… it’s all going to be written by our person in charge of communications and all we are going to talk about is, as a customer, you are not liable and here’s what we are doing for you.  We decided to be really transparent and it’s really painful…but I think people appreciated that we were being transparent and focused on taking care of our customers.”

Frank Blake, former CEO of the Home Depot (full interview)

So, from a communications perspective, we need to keep in mind that no matter how careful, nuanced and legalistic our statements are on Day one, that won’t prevent someone bringing an action against you.

Of course saying things that can hurt you or are inaccurate must be avoided. Statements must be clear, honest and reflect your best understanding of the situation at that time. And if there is something you don’t know or cannot discuss, for example the exact cause of an event or the identities of those involved, just say so.

However, remember that something that is clear, open and honest to start with can seem evasive later on.  For example:

“At this stage it is too early to determine the exact cause of the event but we will be doing everything we can to get to the bottom of this. At this time, however, our focus is on the disruption this has caused and working with those affected to get things back to normal”

This statement would be understandable and widely accepted on Day One but this same statement will seem vague and evasive on Day 10.

But, this is exactly the kind of thing companies try to keep saying for as long as possible to avoid potential litigation.

However, not only will this not stop litigation, it might actually encourage lawsuits as people start to think that you are hiding something.  So while you need to avoid doing or saying anything that will attract litigation, your focus as a communicator is to tell your story as clearly and accurately to those who matter most, as quickly as possible.

So I think that the Day One strategy should be: ‘we need to do whatever we can to make the situation come to an end as fast as possible so that we can get back to our day jobs and doing what we’re intended to do’.

That means a rapid, open and honest dialogue with those who matter most alongside everything possible needed to bring any operational incident under control.  But this cannot be successful if everyone is second guessing themselves and holding back to avoid litigation – litigation that is most likely going to happen anyway.

Remember, the long tail of litigation will work itself out over time. The damage to reputation is felt today.