James Haggerty 10 May 2015 // 6:07PM GMT
In October 2009, at 12:30am, an explosion and fire occurred at a fuel storage facility in Puerto Rico. It was initially unclear whether anyone was injured in the explosion as the fire raged throughout the day, sending a cloud of smoke and ash up into the sky.
By early afternoon, the first class action lawsuit was filed, naming the oil company and its insurer as defendants.
When the plaintiffs’ lawyer was asked how he could file a lawsuit so quickly, without any sense as to the cause, potential damages, or before the debris from the explosion had even returned to earth, he stated:
“It’s simple… what goes up, must come down.”
Welcome to the brave new world of crisis communications, where legal issues are inexorably intertwined with the actual physical event at the heart of what is typically considered a “crisis.” The modern crisis plays out in a world where law, regulation – and, yes, plaintiffs lawyers – now infiltrate all aspects of our business, and even personal, lives. And just as this fact has changed the face of the modern crisis, so too must modern crisis communications change as well.
In other words, virtually all crises are now legal crises.
In my 2003, book In the Court of Public Opinion (now in its Second Edition), I made an argument that might seem to contradict this premise: that litigation communications was a separate and distinct discipline from crisis communications, and those who treat litigation communications as just another crisis communications event are doing a disservice to their client, their case and their cause.
I pointed out that, traditionally, crisis communications is all about immediate response: having a crisis plan and a crisis communications team in place long before a crisis occurs, alerting the crisis team at the earliest possible moment, securing the site or crisis location and having a spokesperson (preferably the company CEO) trained and ready to respond within the critical first hours. Litigation communications, by contrast, may have crisis elements to it – that first moment when a lawsuit is filed, for example – but litigation communications doesn’t unfold over 24 or 48 or 72 hours. Rather, it tends to ebb-and-flow with the rhythms of the litigation itself.
Moreover the issues are often stupefying in their complexity and the action takes place in a series papers filed in court, rather than in the real world. Finally, in the legal crisis, it is often the case that the CEO or other top executive in the company is not your best spokesperson – sometimes, in fact, the company’s lawyer might actually be more suited to delivering the communications message.
All this is still very true, but what I have noticed more and more is the fact that while not all litigation communications matters are crises, nearly all crisis communications situations now involve a legal component that needs to be considered when responding. And this includes when considering response during those first critical 24 to 72 hours -- the “textbook” timeframe for crisis communication response since, at least, the seminal cyanide-in-the-Tylenol case of the early 1980s.
So what has changed? Over the past 30 years, we have seen a build-up of an array of factors that has altered the landscape business and communication:
- Increased law and regulation: Consider the fact that in just the past five years in the United States we’ve had Dodd-Frank, the Affordable Care Act and a host of new laws in all 50 states aimed at protecting consumers, employees and the environment. Whether you believe our society is better or worse off as a result of these new laws and regulations is irrelevant. The fact is, they are here, and every business step – and misstep – now has legal and regulatory reverberations that need to be considered before action is taken. One example can be found in the 2013 Target data breach, where in addition to responding in the media and with key stakeholders, the company also faced the prospect of complying with 47 separate state laws related to public and regulatory notification during a data breach involving customers’ personal information. A daunting challenge indeed, and one that simply wasn’t on the landscape in the cyanide-in-the-Tylenol days.
- Aggressive prosecutors and regulators: Local prosecutors have always seen their position as a stepping-stone to bigger things (consider Thomas Dewey, Rudy Guiliani or Chris Christie), but in our media- and social media-saturated world, publicity in the pursuit of career advancement sometimes seems as if it has become as much a focus of local prosecutors’ work as the pursuit of justice. If they’re not thinking about Congress or the Governorship, they’re thinking about that lucrative job with a private law firm or a financial firm once their term is through. Hence, prosecutors and regulators can be every bit as aggressive as the most ambulance-chasing plaintiffs lawyer engaging the media in the aftermath of a crisis or related corporate misstep. As famed US litigator Ted Wells once told me: “Twenty-five years ago an indictment was a legal document. You read an indictment these days—that’s the prosecutor’s press release right there.”
- The rise of the plaintiffs bar and class-action lawsuits: Class action lawsuits may, in fact, bring great social benefits to our society on the whole, righting wrongs and holding Corporate American accountable for all manner of misdeeds. But regardless, there can be no doubt that from the late 1980s to the present, the class action lawsuit has become a growing feature of crisis communications management and response. In the wake of many (if not most) crisis or other negative company events, plaintiffs’ lawyers will often assert damage on behalf of consumers, employees, or shareholders. What was once a two-day – or perhaps week-long – crisis now often has a “long tail,” with the negative reputational impacts related to the incident extending for months or even years.
Viewed in this light, it is little wonder that the “Chief Crisis Officer” in many organizations is the General Counsel or one of his or her assistants – and not the head of corporate communications or public affairs as one might expect. As many PR practitioners know, this can have highly negatives ramifications for an organization’s overall crisis communications response, since (to state the obvious) lawyers are trained as lawyers, not communicators. To give just one example, in litigation, lawyers are trained to avoid confronting issues until they are “ripe” or otherwise before the judge for consideration – which may work in the courtroom, but can be devastating in the court of public opinion. Hence the need for companies to have a crisis communications infrastructure in place – including the systems, tools and personnel – to ensure that an appropriate “public relations mindset” drive what are increasing becoming legal decisions.
As public relations practitioners and crisis communicators, we may not like this growing intrusion of legal concerns on the practice of our craft, but with the growing trend towards law and regulation impacting every aspect of our lives, we’d better get used to it
James F. Haggerty, a PR counselor, attorney and writer, is CEO of PRCG/Haggerty LLC. He is also founder of CrisisResponsePro Inc., a new software company offering online tools for crisis communications. His new book, Chief Crisis Officer, will be published in Fall 2015 by Ankerwycke Books.