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Make the Case to Defend Yourself in the Court of Public Opinion

This article was originally published on March 4, 2022 by Hennes Communications. Howard Fencl is Vice President at Hennes Communications, one of the few firms in North America focused exclusively on crisis communications.  For more information:  www.crisiscommunications.com
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I was jolted back to the Stone Age by an attorney’s email on a thread batting back and forth a media statement I’d help craft in response to outrageous allegations in a frivolous lawsuit filed against our mutual client.

The attorney’s reaction to the draft statement: “Litigators always advise ‘no comment.’ Talking to the media almost never helps win a case in court.”

Lurid allegations – all spurious – of sexual wrongdoing at one of our client’s locations liberally punctuated the court filing and were sure to attract media attention. The defendant’s attorney had a history of filing capricious lawsuits, and this one was the second directed at our client.

We leave litigation to lawyers. Always have and always will. Our concern is defending our client’s reputation in the Court of Public Opinion. The place where media headlines in screaming 40-point font invariably parrot the most sensational aspects of court filings. Where Twitter trolls latch on to every shocking allegation and amplify it until it spirals into a viral social media frenzy.

The old days of responding with a terse “…our company does not comment on pending litigation” may be a tried-and-true litigation tactic, but it will do little to mitigate reputational damage wrought by negative media coverage, reputation-battering social media scorn, and the possibility of years of negative Google key word search returns.

Crisis communicators need to work closely with attorneys. All communications need to be run by you and your attorney because you never want to jeopardize any aspect of a litigation strategy. In other words, you cannot parade out all the facts the defense intends to use to exonerate your company and try the case in the Court of Public Opinion.

However, there is always something you CAN say that reporters will be eager to quote in their coverage that dulls sensationalism, defends your client’s reputation and mitigates future negative search returns.

And it ain’t “…our company does not comment on pending litigation.”

Why not say something like

“…the plaintiff’s attorney has a long history of filing capricious, baseless lawsuits, and this is just another example of their headline-grabbing litigation strategy.”

or

“…the plaintiff’s attorney is making wild allegations in this lawsuit – none of which are supported by the facts. We look forward to getting to the truth and defending ourselves vigorously against these bogus claims.”

I managed TV newsrooms for 20 years and I can tell you not a single reporter on my team would pass on a quote like either of those above. Yes, they’d appear alongside the titillating language in the lawsuit, but the story the public would see on TV or on the web would have more balance – and would certainly give the company under fire a fighting chance to defend its reputation with its important internal and external audiences.

A trial, as we all know, can drag on for months or years. And at every inflection point in the judicial process, the plaintiff’s attorney can go back to media and again drag your company through the mud, replaying all the dirt detailed in the lawsuit. In the meantime, your company may be losing experienced staff, customers and investors because of the pummeling your reputation is taking.

The ultimate decision on using the language you use is yours, of course – informed by your legal counsel. There’s plenty of legal rationale for saying little or nothing. But in these days of 24/7 media coverage and intense social media scrutiny, you say nothing at your own risk.

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