Articles by Levick Experts
For The Defense
Brand Protection
Priorities during Litigation Crises
High-profile litigation is about a lot more than rules of evidence or courtroom demeanor. In fact, it’s about a lot more than litigation. Whether you’re representing a manufacturing giant or a celebrity, high-profile litigation is all about the client’s brand.
Ask any smart in-house lawyer. In-house counsel focus on protecting the brand. Defense lawyers focus on winning—but sometimes, however unintentionally, to the point where victory permanently damages the victor. Differences between corporate counsel and outside litigators are never more pointed than in cases where the client has more than a legal judgment at stake, and where the highest tribunal is, really, the court of public opinion. Before that tribunal, the defendant is the corporate brand.
The danger zone for clients and counsel is where their interests bifurcate and litigators pursue the courtroom win at any price. Corporations look at the value of the brand—reputation, market share, stock value—before they talk about what does, or does not, constitute victory. The backroom machinations that lead to settlement are likewise irrelevant in such a struggle. Altogether different skill sets are required before the media tribunals that will decisively massage public perception of your client’s products and services.
A piquant case in point is Martha Stewart Living Omnimedia, Inc., which, when all is said and done, may actually win its case against the government. But the price of victory may become unacceptable, including a double-digit decline in magazine circulation, a 30 percent drop in magazine advertising revenues, and a stock price that has trailed the market for over a year.
For general counsel, the perennial mantra demands outside counsel who understand their business. In other words, they want you to speak their language and pursue their priority goals. The highest priority is the brand. What do you know about your clients’ brands?
What is a Brand?
A brand is a promise. It exists only in the minds of the buyers.
In a world where each of us receives 3,000 to 5,000 messages a day—television advertisements, e-mails, bouquets from our loved ones—we really only have time to categorize new information as good or bad, yin or yang. Overcoming this clutter is a monumental task. Yet numerous companies have successfully cut through it all with insistent messages that elicit knee jerk responses.
Coca-Cola, McDonald’s, Nike, and Howard Johnson’s are prime examples. When you see the red and white soda can, the golden arch, the swoosh, or the orange roof, you know exactly what to expect.
What is Michelin selling? Tires? No, it’s selling safety. The safety message is the only way you distinguish one round piece of rubber from another.
Out-of-control lawsuits, replete with unpredictably negative public messages, undermine a social contract based on brand-driven trust and expectations fulfilled by performance. The corporate/customer bond is insidiously undermined. Vide WorldCom. Vide Arthur Andersen.
The brand, for those companies big enough and disciplined enough to have created one, is everything.
Perception Rules
Victory in the media requires different skill sets than winning in court. Often, in fact, it requires opposite skill sets. Facts rule courtrooms. But perceptions rule the media tribunals where your clients’ vital brands are adjudicated.
Facts that win in court often spell certain defeat in the media, because facts that win in court may confuse the fundamental message. When you marshal multiple facts, you are explaining, and explaining usually repels media sympathy. By contrast, a single, visually effective message articulated by a trusted spokesperson at the right time is more likely to carry the day.
No one understood this better than Ronald Reagan. He did not analyze the whys and wherefores of the Welfare State. He focused instead on images of welfare mothers, and got his message across that way. No analysis, just a wink and a nod.
Facts and perceptions play different roles in different courts. Likewise, myriad other strategies that may effectively guide shrewd litigators in court are predictably disastrous elsewhere. In court, for example, a discreet silence can be appropriate. But when litigation goes high profile, “no comment” is seldom an option.
Every media story begins as a large piece of blank newspaper. When reporters start to write, they draw a line in their heads down the middle of the page. There are only two sides to fill in on this mat of papyrus. You get one side, your opponent gets the other. If one party refuses to comment, well, the reporter’s got to write something!
As a result, the other party gets the entire page. You’ve ceded it.
There are few plaintiffs’ lawyers who decline to comment. Instead, they merrily wait for the defense lawyers to no-comment, then gobble up the space they’ve been given.
Make the Sacrifice
The Exxon Valdez oil spill and the Johnson & Johnson Tylenol scare are the historic examples of how to handle crisis and how not to handle crisis.
Exxon’s record for environmental responsibility is forever tainted by the perception of its cavalier attitude during the Alaskan disaster. One salient tactical difference eternally separates the two corporate giants in their highest-profile crises: Johnson & Johnson made a sacrifice. The company proactively and voluntarily pulled all its products off the shelf, not just Tylenol. The message, which was sent loud and clear to the global marketplace, was that J&J cared more about people than profits.
It was the ultimate brand preservation. Everything that Johnson & Johnson stood for was affirmed that day, and the message still resonates two decades later. For Johnson & Johnson, the reward was substantially increased market share, after very short-term lost profits. Brand preservation during high-profile crisis thus equals marketing opportunity.
Many things have changed since then, of course. Today we have 24-hour news cycles, 200 television channels, talk radio, and the Internet. But the rule holds true. Each high-profile crisis presents its own opportunity. The opportunity is all about reaffirmation of the social contract that defines the brand. When you reaffirm a brand, you increase its value. Johnson & Johnson was always all about trust and tender care. During the Tylenol scare, the company proved it, and thus elevated the image.
Trust is the only acceptable currency. To truly serve your client, remember that the company’s trustworthiness is on the line in all high profile litigation. Litigate to win, but always respect the promise of the brand. Once it’s lost, a favorable jury verdict or a practicable settlement can be a Pyrrhic victory indeed.