Articles by Levick Experts

In-House Defense Quarterly

Communications Strategies in High-Profile Cases and the Role of In-house Counsel

by Richard S. Levick

 

It could have been cottage cheese or steak sauce or bottled water. In 2006, it just happened to be spinach.

 

We say 2006, but the E.coli crisis grinds on. As of this writing, USA Today (January 25, 2007) reported that local industry spokespeople were creating voluntary safety standards, although the second paragraph of the article immediately focused more extensive attention on the skepticism of critics, who doubt such standards can be effective. The opinions of those unidentified critics, as reported, seem pretty weighty-and dangerous to ignore.

 

A Google search of "E.coli spinach" now generates four sponsored links. Plaintiffs' counsel is one of the four. The spinach industry is not.

 

The ordeal is a long-lived one, but last year's crisis, and how the industry responded, would be instructive in any event. It is particularly instructive that the spinach industry provided such a salutary model for how defending entities should respond to a nationwide crisis of this nature. Then the effective response suddenly stopped.

 

Seen broadly, such scenarios are not uncommon and they underscore a potentially vital role for in-house counsel as a crisis team member-especially well-positioned to ensure that positive momentum can be both generated and maintained.

 

The industry faced formidable adversity from the earliest moment of the crisis. Check that. The adversity was formidable even before the revelations of contamination were made. Special interest groups, representing a veritable cottage industry of food industry critics, were already primed in the blogosphere.

 

Their templates were ready to launch. All they needed was to fill in the words "spinach," "California," "E.coli," etc. once the details of the next crisis were known. These bloggers included many cranks, to be sure, but also a good number of "high-authority" blogs with legitimate or seemingly legitimate claims to credibility. (See the sidebar accompanying this article that identifies a few of the salient blogs.)

Whatever the spinach industry might do, these bloggers would continue to seed media perception, and therefore public perception, of the crisis and how the industry was responding. A Columbia University study shows that 51 percent of journalists use blogs regularly. The number is rapidly growing. One can surmise those "critics" referenced in the second paragraph of the aforementioned USA Today story might well include bloggers with inherent antiindustry slant. At the very least, those bloggers helped shape the climate of opinion in which the critics operate.

 

The spinach industry responded wonderfully - and quickly. It held a press conference and maximized media attention by choosing the National Press Club in Washington, D.C., as the venue. Most encouraging, the industry spokespeople knew what to say at that conference.

 

They did not agonize over soil test results or risk analyses or make fine distinctions between spinach leaf typologies and their relative susceptibility to the bacteria. When you explain like that, you lose. Such detail may create reasonable doubt in courts of law. In the court of public opinion, it creates distrust.

 

Instead, for all intents and purposes, the industry described the steps it was taking to solve the problem as well as the steps it still intended to take. They talked about what they knew for certain and what they still intended to learn. And, they promised to continue reporting to the media when new information became available.

 

War of Attrition

But time was not on the side of the industry, at least not from a communications standpoint. The FDA was still searching for clues and the plaintiffs' bar was unremitting, online and off.

 

There are two equally important stages in crisis communications. First is the initial response, which will significantly affect how the story is perceived and rendered forever after. But it is likewise vital to maintain the message in an integrated campaign, which is where plaintiffs always have the advantage.

 

Plaintiffs do not have to vet their tactics with committees from different organizations. They can experiment. They can shoot from the hip. If one sortie fails, they try another one. Defendants, on the other hand, must typically run all messages past squads of stakeholders.

 

Take a look at the simplest press release from a defending company and you'll see whole archaeological strata of embedded editorial changes from diverse interested parties. By the time the release is ready to distribute, the plaintiffs are already on to their next attacking message.

 

 
Given the structure and dynamics of defending organizations, the odds against a sustained strategic response in the court of public opinion might indeed seem insurmountable. There are, however, options available to corporations and industry associations that can decisively improve those odds or even overcome them altogether.

 

Indeed, as Non-Government Organizations (NGOs) populate the Internet, as they ally themselves with plaintiffs' lawyers and feed off aggressive regulators and enforcers, businesses of all sorts are being compelled to overcome their own inertia. Their cultures are in transformation as necessity mothers invention.

 

The transformation begins with three congruent steps, practical, doable and prophylactic, in the sense that it allows for effective and immediate action once a crisis occurs and on an ongoing basis afterward.

 

First, set up a crisis team with no more than 5-7 members. Typically, the CEO or a representative of that office must be on the team; so should outside and inside counsel along with corporate communications and an outside communications advisor. This team must be empowered to issue directives for immediate implementation. Defining and centralizing authority in this fashion ensures crucial efficiency when the crisis response is needed.

 

The team is an ongoing entity. It alone continues to manage the crisis after the initial stages. If the defending party is an entire industry, the trade association is a possible platform, but the dynamic is the same-a few choice decision-makers with the power to move and keep on moving.

 

Second, train and prepare the team. In particular:

Run practice sessions and conduct media training several times a year if possible, but no less than twice a year. Outside professionals can guide these events, which often employ videotaped role-playing to maximize effectiveness with the media.
Set up a rapid response system in which all team members know how to reach each other at 3 a.m. on a Saturday.

Ensure personnel and technology back-ups.

Such training not only assures efficiency, it creates trust. It allows for team members to learn how to work in unison. In other words, it creates, not an ad hoc committee, but a real team that speaks with one voice when necessary.

 

Third, prepare for immediate tactical steps that will, in all likelihood, be necessary. For example:

 

Assign responsibility to track all news and other public information that may have impact immediately. A few years ago, tracking the national and local press as well as trade publications was mainly all that was required. Now the Internet has raised the bar and the monitoring must include the blogosphere. Better yet, start monitoring the blogs now, before a crisis, so you'll know exactly where to look first when a problem does occur.

Compile reporter lists and develop relationships now. By getting to know the key reporters, the company achieves a reservoir of goodwill to draw on later when the judgment of reporters can go one way or another.

Plan for an online resource (for example, a company blog dedicated to the crisis) and have an Internet expert on hand to "optimize" the resources. Optimization is a simple process that directs maximum search engine traffic to the organization's own version of events.

Identify potential third-party supporters who can speak for the organization in any number of ostensibly disinterested venues.

The action points will vary, depending on the organization and industry, and on the nature of the crises that are likely to develop. Start the list now in any event.

 

The In-House Legal Role

We have suggested that corporate counsel has a particularly important role to play. The bad news is that, in today's world, inhouse lawyers must shoulder often untenable new compliance and governance burdens. Yet, the good news is that, with so much at risk, it is sheer folly not to have GCs play an ever-more strategic role in protecting the organization's brand and reputation.

 

The problem of institutional inertia discussed in this article, and the practicable solutions that we've itemized, is a precise case in point.

 

For example, we've talked about the crucial need to set up and train a discrete crisis team empowered to render final decisions. Who better than General Counsel to lobby the C-Suite for just such preparedness? Who better to warn the CEO of the specific costs of getting caught flat-footed?

 

Who better than general counsel to go even further as an advocate for assertive responses in every communication to the most critical attacks? Proverbially, the best defense is a hard-hitting offense. The best defense runs toward the crisis. It does not hang back and brace for the next wave of reprisals and recriminations.

In football, the most successful defensive units blitz with regularity. That word is all about counter-action, not just reaction. Corporate blitz units face tough barriers, which have often been set up by lawyers. Who better than a lawyer to tear them down?