A cardinal rule in working with lawyers and their clients in litigation communication is to ensure that the legal and communication strategies are in sync and that the communication strategy does not get too far out in front of the legal strategy. As a former general counsel and a communications professional, I’ve seen what can happen when strategies are not in sync.

Consider a situation a few years ago when a major retailer’s tractor trailer collided with an entertainer’s luxury bus, critically injuring the entertainer. The retailer did the best it could in responding to the situation, expressing remorse and agreeing to take full responsibility if it was deemed at fault.

This was all well and good and textbook crisis management…until the entertainer filed suit. At that point, from a legal perspective the company acted to protect its interests. As part of its defense, the retailer alleged that the victim was partly to blame because he was not wearing a seat belt at the time.

This was a standard legal defense called contributory negligence, a theory that holds a plaintiff can’t recover all of his damages if he was partly to blame for the injury. For example, a plaintiff who crosses a street against the light and is hit by a car whose driver was texting may not be able to recover all damages because he was at fault as well.

Presumably, the retailer’s lawyers had this in mind when they alleged that the entertainer was partly to blame. They may have been compelled to file this response to protect their insurance rights.

A firestorm resulted and the retailer was roundly criticized for being insensitive and heartless. The fact that it was just asserting its rights was lost in the shuffle. And it may have settled the case more quickly and for more money to prevent further damage to its reputation. 

This example demonstrates the need for lawyers and their communication counsel to work closely together both on strategy and in actual court filings. In this instance, communications counsel might have predicted the response and pushed back on the advisability of its filing, at least at this time—and perhaps they did. Because communications counsel is focused on public perception and how filings may be perceived by a wider audience, they can offer a different perspective to lawyers focused on protecting the client’s rights and winning the case or minimizing the damages.

A plaintiffs’ lawyer tactic is often to publicize pleadings and statements that reflect poorly on the defendant. A well-informed communications team that understands the timing and content of filings, can help the company respond as effectively as possible when potentially negative developments are raised, explaining the company’s position and providing context for its actions. By working in sync, the lawyers and communications professionals can deliver the best results for their mutual client.

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Pete Wentz

Pete Wentz, executive director of APCO’s Chicago office, provides clients with expertise in corporate reputation, crisis, financial and litigation communication and strategic planning. He also has extensive experience in higher education. Read More