Whenthe media comes knocking in the midst of corporate litigation or crisis, it'simportant to have a solid media plan in place.
"A
lot of lawyers have a phobia of the media so they have a knee-jerk reaction to
avoid it at all costs and if they get confronted and have no immediate escape
route they simply say 'no comment,' which, as everyone in the media knows, can
be the kiss of death from a variety of perspectives," says Peter Pliszka of
Fasken Martin DuMoulin LLP, who practises civil, commercial, and insurance
litigation.
Pliszka,
who was part of a panel at a Canadian Corporate Counsel Association seminar at
the annual meeting Vancouver last month, says the first step when coming up
with a media plan is to engage the relevant stakeholders in the company or
organization.
"You
would want your outside legal counsel and your in-house legal counsel speaking
with the relevant business people within the organization as well as, if the
organization has it, the corporate communications or public relations
department.
"You
want all the relevant stakeholders and people with the right type of expertise
involved in the consultation process," he said.
Once
the group has been formed, the next step is coming up with the message the
company wants to convey to the public.
"If
you have a situation where the company is facing some kind of crisis, whether
it already has resulted in the initiation of a lawsuit against the company or
if it otherwise is simply a high-profile crisis that you know is going to
proceed under the glare of the media spotlight, the company has to determine
what is our message about this crisis going to be?"
The
message should not be complex, said Pliszka, and you don't want multiple
messages — ideally one or two, three at the most — otherwise you run the risk
of confusing the public through the media.
He
said that when determining the message, counsel should look beyond the four
corners of the scope of relevance of the litigation.
"There
are other stakeholder perspectives of the company that are just as relevant and
in some cases, for some crises, far more relevant than the litigation
perspective in the lawsuit," he said.
The
perspectives of the sales, marketing, and business people in the organization
need to be considered, even when you're developing your media message in the
context of a high-profile lawsuit.
"You
wouldn't want your message, that might very well be appropriate and effective
for the litigation itself, to have an adverse effect on the business sales of
the company. For example, by criticizing your consumers and giving the impression
or message 'Well, all our consumers must be stupid because we made it
abundantly clear in our product literature or our warning label that this
product should not be used in this way or that way and they went ahead and did
so all of our customers are the ones to blame for this.'"
While
that may be a good legal position within the context of a lawsuit, it's not
necessarily going to fly with the customer base if that's the message that's
being sent to them.
"There
needs to be a balancing of the various stakeholder perspectives within the
company with the overall view of developing the message that is going to strike
a balance in serving all the perspectives," said Pliszka.
Once
the message is determined, the next step is to determine who is going to be the
spokesperson. It could be the litigation lawyer, in-house counsel, or a senior
executive with the company, but it needs to be clear precisely who is
authorized to speak to the press.
"What
you don't want is to have anyone in the company feeling free that he or she can
speak at will to the media. It's necessary to have the process controlled and
you want to designate one or perhaps a limited number of spokespeople for the
company."
Even
with a solid message and a spokesperson in place, a reporter may ask questions
that the spokesman is unable to answer, but beware of saying "no comment," as
people tend to draw adverse inferences from it.
"The
phrase 'no comment' should be struck from the vocabulary of any media
spokesperson simply because it doesn't convey any clear basis for why the
person is not commenting. It's far better to speak in plain English, so if the
reporter asks the question that the company's spokes-person is not in a position
to answer it's far more appropriate to simply say that," he said.
"That
is the spokesperson can say 'I'm sorry, I'm not able to answer that question at
this time,' or 'We are still investigating the matter and we don't have the
facts that will enable me to respond to that question. We will let you know the
answer once we have that information.'"
Pliszka
said people often criticize the media
for taking statements out of context or getting the facts wrong.
"Often
those criticisms may well be accurate but then it raises the question if it
appears from mistakes the media may from time to time make, they might not be
understanding the issue.
"Rather
than criticize, take steps to try and help them understand what the issue is
from your perspective and understand exactly what your message is relating to
that crisis or issue."
He
said it's important to take the time, especially in a litigation context, to
explain to journalists what the issues are, why certain types of steps are
occurring, or why things have to happen in a certain way. Providing background
information and assistance with technical and legal terms can help increase
understanding of the issues.
"At
the very least you are increasing the odds that the reporter is going to
understand your company's message and report it accurately and in a more
balanced way."
