Paul Holmes 06 Nov 1992 // 12:00AM GMT
Litigation public relations is a specialist discipline that can only grow in the '90s, as business executives are held to higher legal standards and an increasing number recognize that the impact of a law suit upon their reputation as well as their pocketbook.
After Pennwalt Oil spilled toxic chemicals in Tacoma back in 1985, U.S. District Judge Jack Tanner created controversy when he refused to accept a guilty plea from anyone but the chief executive of the company, and insisted that in addition to Pennwalt (now Atochem) paying a $1.1 million fine, its chairman Edwin Tuttle had to swear in as a formal defendant and enter his own guilty plea.
That case came as such a shock to the business world that it made headlines, but if public sentiment is any guide, similar stories could become commonplace in the '90s.
A recent survey by Arthur D. Little revealed that 75% of the general population believes that executives should be held personally liable for environmental damage caused by their companies. Among business executives, opinion was more evenly divided, but even there 49% said personal liability was appropriate, with just 45 % disagreeing.
"This overwhelming public sentiment that individual managers should be personally liable for environmental offenses has strong implications for business executives," says the report accompanying these findings. "This finding confirms a trend towards the criminalization of environmental damage, and indicates as well a strong sense that the general public increasingly demands accountability for environmental performance."
Ivan Boesky and Michael Milken are merely the most high-profile former business execs behind bars. The list includes Marvin Warner, former owner of State Savings Bank of Ohio, serving three years for his role in the thrift's collapse; Jacob Butcher, sentenced to 20 years after being convicted of bank fraud in Tennessee; the president and vp of operations at BeechNut Corporation were each sentenced to one year in jail after the company pleaded guilty to 215 counts of introducing adulterated food into commerce.
Boyd Jefferies, founder of L.A. brokerage Jefferies & Co. pleaded guilty to stock manipulation, was barred from the securities business and is currently on probation; GAF Corporation chairman James Sherwin was found guilty of similar charges by a federal jury; two top executives at California's Diceon Electronics face jail sentences for illegal disposal of hazardous waste; and five senior execs at Chicago Magnet Wire Corp. stand accused of allowing workers to suffer nerve and lung disorders from exposure to hazardous chemicals.
Most of these executives lost in court, as well as in the minds of the public, and in several cases, observers have charged that their sentences reflected public outrage rather than the seriousness of their crimes under the law, but there are others who have emerged victorious in legal actions and yet have had their reputations severely damaged by the process: the tobacco companies are only the most obvious example.
Pennwalt's vp of public affairs, Pete McCarthy, recalls that: "The hearing took on a carnival atmosphere once our chair man was dragged into things. We worked with legal counsel to decide what strategy was best for the company, and we went forward with answers that focused on what Pennwalt was going to do to clean up the spill and to restore public trust."
Public relations people must be ready to deal with this carnival atmosphere. They must also be sufficiently familiar with the legal process to take advantage of it, and to hold their own in debate with attorneys whose counsel may still be that corporations should refuse to comment on ongoing legal proceedings.
"Take advantage of the litigation process," says Jim Lukaszewski, president of The Lukaszewski Group. "Its predictable steps, phases and events control opposing actions and help predict when news events will occur, thereby helping you develop a counteractive strategy. If you know the process you can out-strategize your opponent.This aggressive flexibility can remove much of the corporation's defensiveness when attacked."
"When a company finds itself in a legal situation, it must communicate," says Doug Hearle, senior counselor at Osgood Global Group and a veteran litigation PR specialist. "More and more lawyers are agreeing with us on that, because there are more and more situations in which lawyers feel that the media has to understand both sides of the story, in order for balance to be maintained both inside and outside the courtroom."
Hearle says this communication should begin as soon as charges are brought, to ensure that people understand the legal process and its terminology. "When a headline says XYZ Corporation has been indicted for something, in the public's mind that implies some form of guilt. You have to make it clear that an indictment is just an accusation."
Hearle says the most important element of litigation public relations is ensuring that the media covering the trial under stand the nuances of each day's testimony, and giving them some kind of context in which to place that testimony, since it is often presented in an illogical order and lacks cohesion.
While many of the media covering a trial will be experienced court reporters who understand the process, many will be business reporters covering the corporation or general news reporters, and they may need to have testimony interpreted by both sides.
Susan Silk, president of Chicago's Media Strategy Inc., says many legal situations are absolutely predictable, and corporations at risk should have crisis plans that cover how they will communicate in the face of law suits or regulatory charges in place before such situations arise. She cites work her agency carried out for a professional association recently.
"Although there wasn't much the company could say at the time, it was aware of the importance of communication," Silk says. "We sat down and identified all the questions they expected to be asked. They the attorneys wrote answers to all those questions, and we held a conference call to discuss the attorneys' answers from a public relations standpoint, and eventually we came up with a set of responses we could all live with."
Silk has helped several companies and executives facing litigation learn to deal with the media under such circumstances, and urges attorneys and their clients to recognize that the court of public opinion operates under different principles than the court of law.
"Attorneys too often advise their clients to have no comment to journalists' questions, or to simply fail to return telephone calls," she says. "Attorneys routinely follow this same advice when reporters contact them about a case. The opportunity is lost to communicate with the court indirectly or to influence public opinion. No comment implies that you and your client have something to hide. Elusiveness translates into guilt."
Silk cites a case in which a construction site accident in Wisconsin resulted in three deaths, and the media carried inter views with family, friends and co-workers of the dead men, all eulogizing the victims. On the advice of counsel, the firm said nothing, even though the company had a strong health and safety program, in which the victims had participated, and even though traces of controlled substances had been found in their blood stream.
"Sadly, the company had to live with a year of verbal assaults and anger from workers, neighbors and friends," Silk says. "Eventually, OSHA reacted to all the publicity, launched an investigation and the company was facing criminal charges.
Attorneys were advising their client that silence would be in his best interest if the case ever came to court, and ignoring the fact that their stonewalling actually made it more likely the case would make it into court."
Attorneys should recognize, Silk says, that the court of public opinion drives regulatory agencies and other investigators.
That is certainly the experience of Donna Lucas, president of Sacramento's Nelson & Lucas Communications, which has been working with Southern Pacific Railroad in the wake of a derailment that spilled jet fuel into waters in Ventura County, California.
"We were brought in after the fact," Lucas says. "To help the company with issues including new legislative proposals and possible legal action. The media was not particularly eager to listen to our side of the story, but we became very public, with news briefing sessions talking about what the company had done to clean up after the spill, because it really had been very quick to respond.
"Initially, the attorney's reaction was to say as little as possible, but we developed a good working relationship with them, and they realized that one-sided coverage was not going to be helpful to them, and since then the media coverage has been much more balanced. It's never going to be a hundred per cent favorable, but it's very important that you defend yourself in the media as vigorously as you defend yourself in court."
CommCore is a media training company that also works in witness preparation, and president Andrew Gilman says the company can bring a perspective to the table that many attorneys lack, since juries often form an opinion about the credibility of witnesses that is more important than the content of the testimony they give.
Gilman cites a recent study asking jurors how they reached their verdicts, which shows that 45% of the factors they reference had not been included in the courtroom testimony, and included inferences about the participants' motivation and psychological states and their own assumptions. Jurors, he says, tell themselves stories about what happened in order to connect evidence presented in confusing order, and witnesses can help jurors form those stories one way or another.
"Making effective use of expert witnesses involves more than just asking the right questions and anticipating how
opposing counsel might use the information," says Gilman. "How the witness presents his or her testimony can be as important as the information conveyed."
He suggests the following guidelines: witnesses should speak in plain English; use everyday analogies to explain complex information; make sure they understand their audience (the jury); use body language, eye contact, signal words and voice inflection to make points; apply the "bridging" technique when given the opportunity to give answers longer than a simple yes or no, phrasing an answer so that it builds a bridge between the question the attorney wants answered and the information the witness wishes to convey.
On occasion, Gilman says, he uses Colonel Oliver North as an example of witness deportment. Without taking sides on the political issue, Gilman says North did everything right on the witness stand from a communications standpoint: he sat up straight, he looked people in the eye, kept his voice firm, answered questions directly and made it clear throughout that he believed he had done the right thing.
One area in which Gilman has done considerable work is malpractice. "There is a bias in these cases against doctors who are perceived as having deep pockets," he says. "And in favor of someone who is perceived as a victim. Many doctors do not present themselves well under questioning. We can help the doctor increase his or her comfort level and come across with greater credibility and believability and more humanity."
Finally, Gilman advises, witnesses should avoid looking over-rehearsed, and giving the impression that their answers are canned or they are not really listening to the questions. One way of doing this is to personalize their answers, addressing the questioner by name, he says.
This illustrates one of the key points made by litigation public relations experts: there may once have been a time when good public relations was at odds with the best legal defense, when expanded communications could be considered a legal risk Today, however, a good public relations practitioner can actually help a company triumph in court, as well as in the media, by helping witnesses understand the concerns of jurors and by ensuring that negative public opinion does not unduly influence either the verdict or the size of a settlement.