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Just about every crisis manager knows the legal and reputational risk after a crisis is often much greater than during the crisis.

Those risks persist through the recovery phase and deep into the weeks and months long after the event which triggered the crisis has faded from the headlines.

At the same time, just about every crisis manager also knows a crisis is frequently judged more by how the organization responded rather than the event itself. That response typically relies heavily on legal and communication counsel, and how the organization navigates through often conflicting advice.

It’s certainly no secret lawyers and communicators can disagree, and this is never more likely, and never riskier, than in the pressure-cooker environment of a crisis.

New research reveals that, despite years of working together, some lawyers still don’t trust professional communicators to do the right thing in a crisis, and most think it’s lawyers, not communicators, who should take the lead in deciding what to do and say.

To find out what lawyers think about their own role in a crisis and what they think about communicators they have to work with, I partnered with a reputation and change management consultancy to interview experienced crisis lawyers in the US, Canada, UK, Australia, and New Zealand.

Our first-of-its-kind research showed conflict between legal and communication advice is still very real, and the result can be contradictory recommendations to management leading to poor decisions at a critical time when clear thinking should be the priority.

The lawyers interviewed said while the relationship with communicators is improving, one of the areas particularly prone to conflict relates to disclosure and apologizing. Specifically, they think communicators’ tendency to communicate openly and transparently means they risk disclosing information, which may lead to liability or future litigation. The lawyers are also concerned about lack of legal awareness among communicators.

Another perceived area of potential conflict was balancing speed and accuracy. Almost every lawyer emphasized the need for certainty before communicating in a crisis.

This response appeared to show little appreciation that in a genuine crisis it is very common for decisions to be made quickly on what is known at the time, which is typically incomplete.

While some of the lawyers interviewed expressed a continuing lack of trust in communicators, a striking theme was recognition that both “sides” need to develop a better appreciation of each other’s roles. The sense was that improved understanding would lead to greater mutual respect for what lawyers and communicators can each contribute when a crisis strikes.

The international lawyer survey forms part of the new book “Crisis Counsel: Navigating Legal and Communication Conflict” (Rothstein Publishing, 2020), which explores the roles of lawyers and communicators during and after a crisis, and how to manage contradictory advice.

While there are many examples of good and bad responses to a crisis, in most cases we don’t know what legal or communications advice was given, whether good advice was given and ignored or if bad advice was accepted.

There are exceptions, such as the Presbyterian church in Vienna, Va., where a youth ministries director was convicted in court after inappropriate relationships with female students.

Following a long period of soul-searching, the church concluded it had not adequately cared for the young victims of abuse and decided to admit to these lapses and to apologize. A lawyer for the church’s insurance company warned against making any such statements, but they proceeded anyway. A spokesman for the church elders said:

“The directions from the insurance company and its lawyer were clear and possibly correct from a legal perspective. They did their job, but as elders we had to do ours. We still have lots of work cleaning up the mess created (by the youth leader) but not following their legal advice was a good start.”

Another such instance – but from the opposite perspective – arose in 1984 when a gunman entered a McDonald’s restaurant in San Ysidro, Calif., and shot and killed 20 people and injured 19 more before he was killed by a police sniper. The case is notorious as one of the earliest modern mass shootings, and during the resulting media frenzy the company’s general counsel told the communication team:

“I don’t want you people to worry or care about the legal implications of what you might say. We are going to do what’s right for the survivors and families of the victims, and we’ll worry about the lawsuits later.”

McDonald’s won widespread praise for its generosity and sensitive handling of the crisis.

However, we don’t usually have such a clear view of the legal advice given, so we need to draw conclusions based on what the organization concerned said publicly, or their court filings. Take two stark examples where legal strategy appeared to run contrary to what would seem like protecting reputation.

In 2012, Ronald Ball of Madison County, Ill., lodged a claim in court for $75,000 alleging he found a dead mouse in a can of the caffeinated drink Mountain Dew. The company filed a defense, citing experts who would testify a dead mouse could not have been in the can. The reason, they argued, was Mountain Dew would have destroyed the tiny rodent’s body and turned it into “a jelly-like substance.”

It’s well understood many soft drinks are acidic, but lawyers for brand-owner Pepsi chose to submit court documents spelling out in gruesome detail exactly how and how quickly their company’s product would gradually destroy a mouse, which made for some predictably damaging headlines.

While the mouse-in-the-can case was eventually settled out of court for an undisclosed sum, you have to wonder what the communication and marketing professionals thought of this response.

The same question could be asked in the case of the so-called “poop cruise” in 2013 when the vessel Carnival Triumph had an engine fire which knocked out the ship’s power. It drifted for four days without air conditioning and largely without lights, water, food, and working toilets, before eventually being towed into Mobile, Ala.

With more than 4,000 passengers and crew aboard, raw sewage backed up into passenger areas, and plastic bags of human waste began to accumulate outside the cabins.

In the wake of shocking media stories around the world came the inevitable legal proceedings, and Carnival Cruise Lines pointed out to passengers taking legal action they never promised a safe trip. CNN reported the company’s court filing said the ticket contract:

“makes absolutely no guarantee for safe passage, a seaworthy vessel, adequate and wholesome food, and sanitary and safe living conditions.”

As with Mountain Dew, it is hard to believe the marketing and communication people at Carnival believed this legal approach would enhance the reputation of the brand.

To fully understand the interface between communication and legal consequences in a crisis, it is useful to compare four high-profile American oil spills. While they occurred over a period of decades, the contrasting outcomes have some important lessons for today.

Ashland Oil Spill

Just after the New Year in 1988, a storage tank at the Ashland Corporation plant near Pittsburgh, Pa., collapsed. Four million gallons of diesel fuel was released and about 700,000 gallons escaped into the nearby Monongahela River. It was one of America’s worst inland oil spills and the toxic slick flowed down icy rivers into West Virginia, Kentucky, Ohio, and Indiana, endangering the drinking water supply for up to a million residents.

Ashland CEO John Hall set the tone when he told the media, “If we made mistakes, we need to stand up and admit them.” He personally led a remarkable clean-up and, knowing the company faced legal action, encouraged people to submit claims so they could make advance payments. Hall found himself being praised in Congress, and the company stock quickly recovered its initial loss on Wall Street and was substantially up by year’s end.

Exxon Valdez

Just over a year later, in March 1989, the oil tanker Exxon Valdez crashed into rocks in Prince William Sound, on the south coast of Alaska, polluting miles of sensitive coastline.

CEO Lawrence Rawl didn’t fly to the scene but stayed unseen in his office for six days. He emerged to give a disastrous TV interview in which he blamed the captain for being drunk and blamed the US Coast Guard and Alaska state officials for delays in the clean-up. He later told a reporter, “It was an accident. It’s not clear to me why people are so angry at us.”

William K. Reilly, then head of the US Environmental Protection Agency, said Rawl “provided a casebook example of how not to communicate to the public when your company messes up.”

Following this disaster, lawyers for Exxon launched what one expert later called “scorched earth litigation” eventually led to a reduced jury award from $5 billion in damages to just over $500 million. However, the cost of 20 long years of damaging publicity will likely tarnish the Exxon brand for a generation.

Huntington Beach Disaster

While the Exxon Valdez spill in Alaska still appears in textbooks and journal articles everywhere as an example of what not to do, the following year saw another notable spill, which is largely forgotten. The tanker American Trader, chartered to BP, was attempting to dock at an offshore terminal when it ran over its own anchor and leaked almost half a million gallons of crude oil onto the popular Huntington Beach, in Orange County, causing heavy pollution along 15 miles of the Californian coast.

In a true display of executive leadership, BP America Chairman James Ross flew straight to the scene and told reporters:

“Our lawyers tell us it’s not our fault, but we feel like it’s our fault and we are going to act like it’s our fault.”

True to his word, BP spent a reported $35 million removing foamy oil and tar balls in a five-week clean-up of beaches which the Los Angeles Times said was considered “one of the most successful clean-ups in history.” Ross later told an oil industry conference:

“Responsibility is not the same as liability. In the case of the Huntington Beach spill, BP was prepared from the outset to assume responsibility for a swift and well-supported response. … We took the view that the early hours of the crisis were too precious to waste on bickering or waiting for someone else to be the ‘responsible’ party.”

Deepwater Horizon

Contrast this outcome with another major spill involving the same company 20 years later, in April 2010, when fire destroyed the oil rig Deepwater Horizon in the Gulf of Mexico. Eleven crew died, and more than 200 million gallons of crude oil eventually escaped to pollute a massive area of land and sea. BP boss Tony Hayward initially argued:

“The Gulf of Mexico is a very big ocean. The amount of volume of oil and dispersant we are putting into it is tiny in relation to the total water volume.”

But as the spill escalated into a full-scale environmental and reputational disaster, Hayward attempted to shift the blame, and famously pleaded he wanted to “get his life back.” The New York Times called it the “soundbite from hell” and said the CEO came to personify the catastrophe.

While the contrast between these four cases is obvious, the critical lesson from Ashland and Huntington Beach is that the CEO led from the front, took responsibility, and never lost sight of the big picture. He was able to balance the need to take action against the possibility of legal repercussions – and did so without any apparent increase in liability.

In any major crisis there is always the risk of conflicting advice. To help manage such disagreement, it’s clear lawyers and communicators need to establish a healthy relationship before the crisis strikes and learn to respect and understand each other’s roles. It is also clear that top management needs to listen better and make the right decisions in the interests of the organization as a whole.

As one of the lawyers told our international survey, “Ordinarily the value of being authentic and honest is significantly greater than the legal risk involved.”

ABOUT THE AUTHOR

Tony Jaques

Tony Jaques, Ph.D., is a recognized expert in issue and crisis management who worked for more than 20 years as Asia-Pacific issue and crisis manager for a major American multinational. He is now managing director of Melbourne-based Issue Outcomes P/L www.issueoutcomes.com.au which specialises in developing and evaluating corporate response systems. He lectures and writes widely in the field and his latest book is “Crisis Counsel: Navigating Legal and Communication Conflict” (Rothstein Publishing, 2020) https://www.amazon.com/dp/194448065X.

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