As a former general counsel, I teach crisis management to undergraduate business students and crisis and litigation communications to law students at two different universities. What has been noteworthy in my conversations with these students is the stark difference in how business and law students differ in their views and approach to situations where a company is alleged to have caused harm to its consumers—such as product liability cases—versus harm to its employees, such as instances of sexual harassment.
The business students almost always ask why the company doesn’t publicly apologize and settle the matter. By contrast, the law students often recommend that the company refrain from commenting publicly on the incident or the litigation when it is first filed and delay any comment until it files a legal response.
This difference likely stems from the fact that law students have recently completed their first-year torts course, where defendants are sued for many different things. However, their approach of declining to comment on litigation situations is largely outmoded. For years, lawyers adhered to this approach due to concerns that anything they said could be used against their client in litigation—particularly comments that could be interpreted as apologies or admissions of wrongdoing.
Today, many lawyers rightfully reject this “no comment” approach. They recognize that an effective legal strategy must balance sound legal counsel with protecting and advancing their client’s reputation, moving away from silence to strategic communication during litigation. Aggressive plaintiffs’ lawyers, particularly those seeking to build a class action, often use the media to announce a lawsuit’s filing and frame the allegations on their own terms. By remaining silent, the defendant company allows the plaintiffs to control the narrative about the case. By the time the defendant files its response, detailing how the allegations are false, wrong or untrue, public interest has often waned.
Deciding to comment does not mean the defendant must apologize. Instead, statements can help a company express its position on the litigation. In business litigation, for example, if a company is sued by a competitor for patent infringement, it can anticipate its legal response by responding that the case is meritless, that it will aggressively defend its position and that it is confident of prevailing. The company could go even further by asserting that the competitor’s patent is invalid. This approach reassures stakeholders, particularly customers, that they can continue to purchase the company’s products with confidence.
The response becomes more challenging when personal injury is involved. In such instances, key stakeholders will expect an expression of empathy as part of the company’s response so that it doesn’t appear heartless. Additionally, unlike business litigation, it would be a mistake for the company to attack the plaintiff—otherwise known as “blaming the victim.”
There are ways, however, to express empathy without issuing an apology. For example, we worked with a client involved in litigation alleging that the organization had ignored sexual harassment and abuse by its employees. Although the organization wanted to issue a formal apology, its insurer rejected that approach and made clear it would not provide coverage if one was issued because it would be considered an admission of liability. Instead, in our messaging, we emphasized how unfortunate the situation was and commended the survivors for their courage in coming forward.
Today’s law students and, hopefully, more lawyers, will learn from these examples and, along with their communications advisors, assume the role of helping to protect and even advance their client’s reputation.
