Minimizing Reputational Damage from Litigation: The Importance of Coordinated Legal and Communication Strategies

As crisis counselors, we often work with inside and outside counsel to help present the client’s story to media and other stakeholders in litigation. In many cases, our first request will be to review pleadings and other documents before they are filed. We take this approach not because we feel that we need to second-guess the legal strategy. In fact, nothing could be further from the truth. We firmly believe that legal strategy is paramount to everything else, so communications should be consistent with the legal strategy but certainly should not lead it. 

Our goal in reviewing documents in advance is to be prepared for media inquiries that filings could generate as well as to develop materials that may be needed to reach other stakeholders such as employees, partners and Board members. In some cases, we can identify early on which legal filings and arguments are likely to raise concerns and criticism that could affect the client’s reputation and plan ahead for if and when that does happen. 

For example, a major airline was sued by the parents of a nine-year-old girl who was filmed in an airline bathroom by a hidden camera installed by a flight attendant. Part of the airline’s defense was that the girl was old enough to have noticed the camera and should have taken action, which may have been an appropriate legal defense.  

However, when this filing became public, it sparked outrage and severe criticism of the airline, which blamed the defense outlined in the filing on the company’s outside counsel, which had been retained by its insurance carrier. The airline apologized and directed the filing be amended. 

Had communications professionals seen this filing in advance, they likely would have recognized the potential for criticism and reputational damage and encouraged the airline to respond differently. Even if the airline chose to go forward, it would have at least been prepared for the likely backlash.  

A more recent example occurred when a major entertainment company required those who signed up for streaming services to agree that any disputes with the company would first have to go to arbitration not litigation. The company attempted to use this provision to require a consumer of its streaming service to go to arbitration when sued after a family member allegedly died from a nut allergy after eating at a company-related restaurant. The plaintiff’s lawyers brought this to the attention of the media and the company was subject to ridicule and appeared heartless to the extent that it withdrew its probably appropriate legal approach seeking arbitration. 

The need for communications and litigation counsel to coordinate is particularly necessary in a case like this that involves personal injury or trauma. In a high stakes business case, such as patent infringement or antitrust, the parties often make aggressive claims attacking one another both in the courtroom and the court of public opinion.  

By contrast, a case involving personal injury or trauma requires empathy on the part of the defendant when presenting its position. Such empathy was missing in another recent case where a celebrity was injured when their tour bus was rammed by another vehicle. The defendant tour bus operator received much criticism when one element of its defense was that the celebrity was not wearing their seat belt on the tour bus, a perfectly good legal defense, but a problematic one reputationally.  

We often see this challenge in cases involving sexual harassment or abuse. As a defendant, an organization is responsible for acts of its employees and the appropriate legal strategy may be to examine the motives of the plaintiffs and a full review of the claims and whether they are factual. Lawyers must tread carefully in these situations and communications teams must be prepared to respond to both media and internal questions about what happened, the strategy and the approach taken. 

While strategies may vary, litigation counsel and communications professionals have the same goal—to protect the client’s reputation. Adopting the following steps can help ensure that reputational damage can be minimized: 

1. Involve the communications team early on in litigation. Early engagement will allow the communications team to understand the legal strategy and response. Ideally, this team should be engaged by the time a case is first filed and before the client is asked for a statement. Today, best practice is to avoid responding with just a “no comment,” but to express the client’s position generally on the issue or more specifically on the case. 

2. Consider being aggressive in business litigation and empathetic in cases involving personal injury or trauma. In a personal injury or trauma case, even if the client has a good defense, it should, at minimum, acknowledge the trauma caused and, if appropriate, commit to investigating further.

3. Provide pleadings and other court filings to communications counsel. Legal briefs and related documents often tell the client’s story and can be very useful in providing background information to media and other audiences.

4. Correct mistakes or misstatements quickly. In the airline example, the airline quickly acknowledged its mistake and did what it could to minimize damage. Misinformation can spread rapidly on social media and in traditional news articles, and it’s critically important to ensure that the organization’s position is included in reporting and correcting false narratives.  

Most importantly, however, litigation counsel must have final say in the communications strategy and materials. While the legal and communications counselors can and should have vigorous discussions about the approach and issues, at the end of the day, all parties want the client to win the legal case, which is the lawyers’ responsibility. The last thing anyone wants is for the client’s communications strategy to become an issue in the case. Accordingly, many of us in communications adopt the physicians’ maxim of “first do no harm.”