February 13, 2012

Don’t Say Nothing: The Limitations of “No Comment” as a Litigation Crisis Strategy

By Dr. Ken Broda-Bahm:

No Comment 2
A Google search on the phrase "no comment" appearing in recent news yields thousands of hits — various individuals and organizations responding in time-honored fashion to some sort of crisis.  Recently, for example, after CNN Analyst Roland Martin had his finger too close to the Tweet button during the Super Bowl and broadcast a homophobic response to David Beckham's underwear advertisements, the network responded to mounting cricitism and petitions with "no comment" for several days before ultimately suspending Martin.  While careful decisions can require delay, the problem in a sustained "no comment" approach is that the silence fuels doubt and uncertainty while allowing the other side of the story to hold the floor uninterrupted.  Given that you can't "not communicate," your silence is inevitably interpreted in a variety of ways, most of them quite negative. 

Recently, I was approached by a company that had just received some bad press on an impending lawsuit.  Understandably, the in-house and outside counsel were united in a "please don't respond" position, while the PR department — also understandably — pleaded, "we've got to say something."  Ill-advised public statements naturally carry a risk of creating evidence and complicating a future trial defense.  However, when the litigation related crisis has the public's attention, silence from a party creates a cloud of doubt and an empty space that can only be filled in by those on the other side.  That route creates problems from both a PR perspective and a legal perspective by tainting a venue and influencing potential witnesses.  Making the argument that in this day and age, the time-honored "no comment" is a presumptively flawed prelitigation strategy, this post focuses on striking the intelligent balance:  avoiding both a "no comment" as well as a bad comment. 

Why Are Parties Tempted by "No Comment"?

In the midst of a crisis that has or could turn legal, companies will often give priority to legal opinions that are focused on minimizing legal risk, but not focused on what is best for public communication.  The company thinks, "If we ignore the PR folks, we'll look bad…but hey, we already look bad.  If we ignore the legal folks, we're hauled into court."  Based on that logic, the legal folks generally win. 

That tendency to lean toward the legal department is backed up by one study (Fitzpatrick & Rubon, 1995) that looked at an 18-month period and tracked news stories focusing on official company responses to pending sexual harassment lawsuits, comparing those that took a traditional public relations approach to the message and those that issued a more legalistic response.  In fully two-thirds of the cases, the study found that a legal strategy predominated.  Apparently, when push comes to shove, companies are prone to place "let's be legally cautious" over "let's communicate well."  

Why Does "No Comment" Rarely Work?

There isn't necessarily a conflict, however, between legal caution and good communication.  In fact, it is more likely that the two will complement each other.  When I've asked attorneys, "What exactly are you worried about in a public message?" the answer is typically very general:  A "no comment" just appears simpler, doesn't add any new variables, and seems to simply avoid the possibility of a mistake.  But that version of playing it safe can carry grave risks.  A recent study (Egan, 2011) looked at the responses of the New York Police Department, over time, to high-profile crises running from 1976 (the Son of Sam killings) through 2008 (the Sean Bell shooting), and included other high- profile department events such as the Bernard Goetz subway shooting and the Amadou Diallo shooting (the New Yorker shot forty one times while reaching for his I.D.).  In each case, a terrible event had occurred and the public was looking for answers. 

What fails to work for the police department can also be what fails to work for a company.  As the author explains regarding the Amadou Diallo case, "In the way that a corporation's spokesperson may say 'no comment' when confronted with a negative story about its internal workings, silence on behalf of the NYPD during this case was their form of 'no comment.'  Like a corporation refusing to release comment can only make the public believe this may be an admission of guilt and encourage the story to grow and become more speculative, the same occurred in the Diallo case.  As the NYPD remained quiet, speaking periodically through [Commissioner] Safir and [Mayor] Giuliani, public outrage about the shooting grew in frequency and fervor."  Though corporations won't often be charged with shooting someone forty one times, the dynamic in the public's response is the same:  Silence may seem legally safe, but it can be toxic from the public's perspectives, and your potential jury, judge, and witnesses are all part of that public.  While there are without a doubt situations where parties shouldn't comment, that stance should most often be treated as a holding pattern and not a strategy. 

What Should Your No-"No-Comment" Message Include?

Beyond the content of your message, the fact of it communicates several things:  that you care, you take it seriously, you are engaged and responsive.  A response shows a level of respect for the situation and your audience, and more practically it makes it likely that at least one quotation in the press is likely to be favorable.

Drawing from the list of traditional public relations responses to crisis and adopting them to a litigation setting, the following are four elements to include in a public comment:

1.  Your Policy and CommitmentsBegin the statement by focusing on the positive.  Smithco is a company that is committed, by policy and ethical commitment, to a diverse workforce free from harassment. 

2.  Your Investigation.  Follow up with a clear statement that you are looking into whatever the situation is.  If possible, be specific.  We take seriously any allegations of a hostile work environment, and our Human Relations office is conducting a detailed investigation of the complaints.

3.  Your Candid Admissions.  As long as you aren't admitting to anything that you wouldn't also concede in litigation, it aids your credibility to admit what is obvious.  The company acknowledges that in past investigations, employee complaints were not always treated with the seriousness that the situation has demanded…

4.  Your Corrective Measures.  End with a statement about what you intend to do.  In the case of these recent allegations, Smithco wants to be clear that new procedures and personal are in place to ensure a thorough investigation and solution. 

While these traditional steps assume that there is, or may be, some merit to the accusations, in other contexts the message may be that the charges are false and you are looking forward to the opportunity to prove that in court.  But in that case as well, it is helpful to lead with a message that says, "we are taking this seriously and we care enough to respond." 

Of course, it is never as simple as just checking the boxes, and you need to take care with any messages about events that are or might become part of litigation.  If the PR and the legal departments seem to be speaking a different language, one bridge between the two might be a litigation consultant:  someone who understands the legal risks while also appreciating the many dimensions of communication.

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Related Posts on Public Messages:

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ResearchBlogging.org Egan, A. B. (2011). The NYPD: The Nation’s Largest Police Department as a Study in Public Information Public Relations Journal, 5 (2)

Fitzpatrick, K. (1995). Public relations vs. legal strategies in organizational crisis decisions Public Relations Review, 21(1), 21-33 DOI: 10.1016/0363-8111(95)90037-3

Photo Credit (& subject too):  K. Broda-Bahm.

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