March 27, 2014

Do Not Let Silence (or Compromise) Deafen Your Defense

By Dr. Kevin Boully:


“Terrible things happened.” On your client’s watch. Do you know what you want to say in response? 

For the last few weeks, including just yesterday, GM has been front-page with ongoing public communication driven by its February 25th recall of part failures linked to 12 deaths. President Alan Batey apologized for the carmaker’s ignition switch issues and CEO Mary Barra has spoken on video a mix of contrition, responsibility, and public relations lingo that accomplished some of the goals of a public apology. 

GM’s admission of responsibility is unequivocal – “something went wrong with our process in this instance and terrible things happened” – prompting the assumption that GM is staking out a settlement strategy rather than considering a defense of lawsuits that may be irreparably harmed by the company’s highly public apology. But is GM’s strategy so obviously intended to manage perceptions that it will fail?  Is GM’s compromised communication going to compromise its defense?


We’ve said silence in the face of public scrutiny on a company can sink public perceptions and create bias in the courtroom. Can a compromised message serve too few by mastering none? In this post we consider some recent research on the benefits of not apologizing for a transgression and reiterate the case for litigation communication that avoids silence and compromise by knowing your purpose.

What Do You Really Want to Say? 

Maybe it feels better not to say what your audience wants to hear. A recent study (Okimoto, Wenzel, Hedrick, 2013) on the effects of apologizing shows that, in some instances, refusing to apologize after having done wrong can have greater psychological benefits than apologizing, including greater self-esteem, increased feelings of power and control, and increased feelings of value integrity. We are empowered because we choose not to say we’re sorry for what we’ve done. Those feelings of empowerment create real psychological tension that affects communication: Does it feel better to apologize or to stand firm? Or somewhere in between?

Jurors and judges continue to take a critical eye to litigants who stubbornly resist taking responsibility and admitting mistakes for what jurors and judges see as obviously the litigant’s fault, or worse, attempt a fake or fatal apology that favors the opposition. And jurors in particular want to see, hear, and feel a genuine response that must include corrective action. So is GM’s balancing act  a function of serving too many psychological and practical masters or does GM know exactly what it’s doing?

Know Why and Say What

GM does not appear to be admitting to anything in public communication that it would not be forced to admit in a courtroom. The purpose is not to avoid liability if the evidence of liability is unavoidable.

(1) Know exactly what you’re trying to achieve. In addition to the four key elements we have presented before, an effective response to public scrutiny while in litigation should always be steered by an honest and unqualified assessment of what you want your communication to achieve. If you want to avoid additional risk of liability, understand that silence may not be the communication you need. If you want to moderate public anger and encourage compromise, understand that admitting fault in favor of managing public perceptions may be highly effective.

(2) Avoid compromised communication. Actions are the proof of intent. Even if your purpose is to achieve compromise, that purpose is rarely well-served by mere words that clearly serve more than one master. While balance and sincerity are both key goals of an effective apology, the public is increasingly savvy and sophisticated when it comes to consuming and interpreting strategic communication. They see the duality in a compromised message, and they want to feel they are a respected audience that companies and their attorneys are not simply trying to manipulate. Avoid communication that tries to accomplish too much and fails to show the action behind the intent you’re communicating.

We told you we fixed the problem, and we have the actions to prove it. In the last few months we have implemented an entirely new quality control system and, in the test stages, we were able identify a 25 percent increase in quality alerts. We have a system and it is working. 


Other Posts on Apology: 


Photo Credit: Patrik Theander, Flickr Creative Commons

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