Guideposts for Aligning your Legal Strategy and Crisis Response
By: Richard Levick
When looking to find middle ground between legal safety and authentic messaging, apply these rules to organize your efforts.
When you’re managing a crisis, it’s important to include a communications strategy with your legal plan.
PR pros and legal experts often find themselves at loggerheads over what to disclose, what to address publicly and what to keep close to the vest. For PR pros looking to convince lawyers and leadership teams, it’s helpful to rely on certain guidelines.
Here are eight essential guideposts:
Risk intelligence is the new enterprise risk management. In order to respond ASAP, you must know ASAP what you’ll have to respond to. To that end, the legal and/or crisis team should have regular access to risk experts who deploy the most efficient technology in order to monitor digital and social media mentions and to develop risk maps.
When the phone rings at 4 a.m., it’s seldom good news. From the moment a company is alerted to a crisis through the moment it finally fades from view, decisions are required at the speed of the crisis, not at the speed of decisions based on fact-gathering or discussions of legal exposure. Yes, information is as crucial as we have suggested, yet you will still have to make decisions about issues that the public deems critical—even before you’ve gathered all the facts.
Though the ultimate question of what is privileged is evolving and determined by jurisdiction, it is always wise to anticipate attempts to pierce the veil. By hiring a litigation and crisis communications firm early in the process, and integrating it as part of legal strategy development, you show credible intent to protect the privilege. It may not be a perfect defense, but it helps make the argument, should it later be needed, that any pursuit of information must be limited to a specific, narrow scope.
Chronology, exposure and gating events
Crises move quickly; teams need a written and drawn chronology to comprehend what is happening. Once the stars in the constellation are seen in order, many things come into focus: early warnings, fact patterns, legal exposures, credible responses, allies and adversaries. Such a chronology may seem too basic a tactic to justify mentioning in a larger discussion of strategy, but it is a kind of strategy itself. The very fact that teams engage in this exercise ensures that every crisis team member is on the same page (literally). We all know what the facts are and when they happened. We can now anticipate what’s likely to come next; just as important, we see our crisis the way our critics do, with its tsunami of information.
Strong crisis teams must invite dissent, because that’s how ideas and strategies are fully vetted, and the failure to do so almost guarantees that the communications strategy will miss the mark. Once the team understands chronology, potential legal, brand, and investor liabilities, as well as an approximate timeline of near-future gating events, then it becomes easier to manage the various priorities and biases. If the potential legal liability is greatest, then legal priorities lead. If, on the other hand (and this is anathema to many lawyers), brand vulnerabilities are the most threatening, then brand leads. If it is share value, then investor relations leads. The lead disciplines do not dominate at others’ expense, but they are given priority consideration.
When companies drill down on chronology, garner facts, measure liability, and identify adversaries and allies early in the high-profile litigation or crisis process, they enable their teams to assess the cost and value of assets, both real and goodwill. Although crisis teams have a strong sense of the cost in terms of dollars and cents, their newer audiences in a high-profile matter—that is, no longer just customers and shareholders but, now, regulators, NGOs, motivated citizens, plaintiffs’ lawyers, media, and others—have their own sense of justice. Nothing makes a story fade from view faster than a meaningful sacrifice to appease that sense. By sacrifice, we mean doing something that costs you in the short term and that this new, expanded audience will appreciate enough to stop seeing you as the villain.
Culture dictates outcomes. It has an unspoken yet outsized influence on almost all high-profile matters. The culture factor soon becomes obvious and essential during any Chinese, Japanese or Korean crisis that plays out on Western soil, even down to how information is shared internally. It’s likewise obvious when Middle East matters touch U.S. markets. Asians must defer to American culture if their challenge falls within the U.S. In turn, Americans must defer to Korean culture if their problem occurs in Seoul. Less obvious, but no less important, are the cultural differences between Wall Street and K Street and Main Street, or between legal cultures and brand marketing cultures. Everyone comes to the crisis/litigation table with their own views based on daily experience and expertise. But high-profile matters require us to be more holistic, to consider the world—or at least the crisis—from the viewpoint of others.
There is an old saying on Capitol Hill: “Never kick a man while he’s up; it’s too much work.” Wait until he’s down, the wisdom goes, so you can pile on, without any cost to you. As bad as a crisis seems in the opening hours and days, it is never as bad as it can be once it spirals out of control.
When public audiences see a messenger they trust, they’ll defer or will at least be less inclined to pile on.