James Hoggan’s recent article: Winning in the Court of Public Opinion, The Advocate

Posted on: January 15, 2016

Winning in the Court of Public Opinion

By James Hoggan | The Advocate | Vol 73 Part 6 | November 2015

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PR often gets a bad rap. What some people shrug off as spin, is actually effective reputation management – if done well

What do a Hepatitis A outbreak at a health food store, a fatal Taser incident at the airport, and a deadly sawmill explosion have in common? Each was tragic real-life event that happened here in British Columbia, forcing the professional pairing of the legal and public relations communities to help manage the fallout.

When a crisis hits, people and organizations involved often face legal challenges, while at the same time being tried in the court of public opinion. Both scenarios can have potentially devastating impacts, including loss of credibility and reputation – the most important assets for most. For those involved in a crisis, presenting the best case to society can be just as important as what’s put forward to a judge or jury.

This is where the public relations (PR) professionals come in. The PR industry sometimes gets a bad rap for what some perceive to be “spin” on an issue. Some individuals and organizations may even be reluctant to hire a PR firm because of this often false professional stereotype, says Adriana Wills, a partner at Vancouver-based law firm Harris and Co.

Wills, who specializes in employment and workplace law, has had clients over the years who don’t believe they need a PR professional to help them, or don’t want to be associated with one.

“There may be some reticence of others finding out they need a professional to help them tell the truth,” says Wills.

She disagrees with this take, believing good PR firms can add value for her clients. Wills says many of her clients have turned to PR consultants over the years, seeking professional advice and strategies on how to best communicate their messages to the public.

“I wish more clients were willing to use the expertise – whether it’s for a news release or to coach them on how to convey their message to stakeholders, such as employees or the general public, or both,” Wills says.

"Some clients are concerned that they will be perceived as attempting to misrepresent or cloud the issues," Wills adds. "In my view, the use of PR professionals is not intended to persuade people of something which is not the truth. It is about ensuring that the truth will be heard. It is about using PR expertise to deliver the information in a way which will capture the attention of the intended audience and have them pause, receive the information and ideally accept the information. Whatever the message is, it can be said with greater clarity and effectiveness with the help and expertise of a PR firm; and, in a way which is not seen as attempting to mislead the public."

The right PR advice – delivered at the right time – can make a huge difference on how a client comes out of a crisis. That includes strategies such as knowing when to hold a press conference, or just put out a media statement or who to put forward as a spokesperson – whether it’s a lawyer, a company executive, for example. Each case is different, and having PR professional with experience in crisis management and who follows media behaviour, can be the difference between winning and losing the public relations battle.

Lawyers and PR people can (and do) work together well

Lawyers and PR people have very distinct roles when it comes to managing a client crisis. While they may not always agree on the best communication approach, some lawyers interviewed for this article agree that communication strategies outside of the courtroom should be driven by advice from the PR pros.

“Lawyers are good communicators, but in a very structured environment where there are strict rules and judges,” says Art Vertlieb, associate counsel at MacKenzie Fujisawa LLP in Vancouver and former president of the Law Society of British Columbia.

“However, none of this fits into the modern communication world we are living in.”

Vertlieb believes PR advisors can help lawyers and their clients’ deal with issues that they may not be necessarily trained to deal with, such as public perception and reaction to a case through traditional and social media, as well as by other stakeholders such as customers, employees and governments.

Irwin Nathanson, a partner at Vancouver-based Nathanson Schachter & Thomson LLP, says lawyers can be reluctant to get involved in PR campaigns, especially if their client is facing allegations where all of the information may not yet be released.

“As a litigator, what I worry about is someone tries to get ahead of the problem and do a campaign without all of the facts,” Nathanson says. The problem arises when the client may not be telling the whole story, or they may not know what other allegations are coming.

“There’s the potential between trickiness between the PR firm and client wanting to get the position out there to the public, on one hand, and the lawyer knowing, based on his or her experience, that the full story doesn’t get developed until later,” Nathanson says. “That’s the tension. It’s what makes any ligation lawyer very nervous.”

Nathanson says his most successful cases, which include the support of PR firms, are when the two parties work collaboratively with the client. Some lawyers are savvier than others in trying to find a working arrangement with PR firms and their clients.

Nazeer Mitha, a partner at Harris, says he’s had a number of good experiences working with PR firms on client cases.

“It’s about finding a balance between getting the right PR advice, while at the same time ensuring the legal side of the case remains protected,” says Mitha.

Even if a client has its own PR team, Mitha will sometimes solicit the advice of an external PR firm if he feels a second opinion or different strategy could be beneficial. Unlike some lawyers, Mitha doesn’t discourage his clients from talking to the media or other stakeholders in a crisis, if it’s for their own benefit.

“It’s not about influencing the legal outcome,” says Mitha, ”but there should be a recognition that the client may have motivations other than just the court case.”

For example, if a company is facing a product recall and wants to keep customers informed and try not to lose their trust, Mitha says a PR firm can help them communicate more effectively.

“The purpose of the public relations outreach isn’t to influence the court proceedings, but instead to assist the company in dealing with the fallout,” he says.

Mitha agrees with Nathanson that there can be tension between lawyers and PR professionals on how a clients should face the public during a crisis, “but I think as long as the comments aren’t intended to influence the court proceeding, then I think it’s important for a company to deal with its PR issues.”

In fact, he says in cases such as these it’s not good idea for lawyers to shut down communication entirely by simply saying the matter is before the court.

“It’s why PR professionals and lawyers should work together; to make sure what is being communicated helps, and doesn’t hurt the client,” Mitha says.

Tips for Lawyers: How to help your client win outside the courtroom:

Crisis management often comes down to a character test. Whether it’s an individual or an organization, how a high-profile controversy is managed can have more impact on reputation than what caused the problem from the start.

Unfortunately, facts aren’t enough. A crisis calls for strategy on how to best communicate them. That includes taking responsibility, acknowledging and solving the problem, treating people fairly, and managing the situation properly. It’s the latter – including knowing when to speak out and how much to say – where experienced PR professionals can make a huge difference.

Below are five ways a PR advisors can support legal clients in a crisis situation.

1.     Protect reputation: Credibility and reputation are the most valuable assets a person or an organization has. Losing these can have both a direct and indirect financial impact. That includes the potential loss of customers and employee morale, as well increased regulatory scrutiny, depending on the situation. A strong, experienced public relations team can work with legal professionals to help their client manage through a crisis, with a main goal of protecting reputation. The key is to not let others define them. Especially in a crisis, a person or organization can’t simply stand by and hope customers or stakeholders will understand their position. Hiring a PR firm isn’t about promoting or covering up an issue; it’s about ensuring it’s managed properly, by people with experience who do this type of work for a living. 

2.     Be transparent: In the face of a high-profile public relations crisis, one common (and very human) response is to huddle behind closed doors and hope it all blows over. This is usually the wrong move. If you don’t tell your story, someone else will, and it will often be bad. Remember too that it’s not just the media that will be seeking information and clarity, but the general public and other stakeholders through increasingly powerful social media channels such as Twitter and Facebook. In many cases, allowing your client to their story out, as quickly as possible, can be the fastest way to get off the front page or stop trending on Twitter. There are exceptions. In some instances, immediately firing off a news release, tweet, or calling a press conference might not be the best course of action, especially if there’s a risk that it will only fan the flames. The right reaction, and timing, requires strategic thinking – after weighing all of the pros and cons. A PR expert knows how to do this.

3.     Communication must go two ways: All good conversations run two ways. The same is true during a crisis. Your client must be able to articulate his or her position in a clear and engaging way. What they say should be dictated in part by what conversation is already taking place. That can be through traditional or social media, or by stakeholders such as employees and suppliers. Before your client decides what needs to be said, they must pay attention to the audience’s position. A PR firm can help find the right strategic response. They can also monitor whether and to what degree the audience is hearing and understanding the message you’re trying to get across. Finally, you must be willing to allow the conversation – and perhaps even your position – to change in the process, where necessary. Only by being responsive can you demonstrate good faith.

4.     Choose the right messenger: When framing an issue, the person talking is sometimes more important than what is being said. For example, a corporate executive and a union negotiator might look uniformly self-interested in a labour dispute, where an injured third party might cast the story in a different light. The same is true for a lawyer or law firm speaking on behalf of a client. In the case of a class action suit or a serious charge, a lawyer might make the best spokesperson addressing the legal side of the issue. However, a lawyer may not be a good public representative when it comes to an environmental disaster, when the public really wants to hear from the head of the company responsible. Knowing which spokesperson to put forward, and when, is something an experienced PR team knows how to handle, based on the specific situation. They can also help to lessen the risk of the crisis being mismanaged or spiraling out of control.

5.     Do the Right Thing: How you handle a crisis can do more damage to a reputation than the crisis itself. Communicating in such an environment is 80 per cent about what is done and 20 per cent about what is said. A crisis is already a problem, but to prevent it from getting worse there’s one common approach, broken down into three simple steps:

1)     Do the right thing

2)     Be seen doing the right thing

3)     Don’t mix up #1 and #2

The best chance of maintaining credibility during a crisis is to establish a reputation for doing the right thing. Keep in mind that the public or other stakeholders don’t want to see you doing PR. They want to see what you’re doing to fix the issue. They’re looking for you to do the right thing. A good PR firm can you figure out how to do it well. It may sound simple, but when you’re in the middle of a crisis, it’s often difficult to know exactly what “the right thing” is.

Public relations is not advertising and it’s not spin. Good public relations is about managing and protecting reputation, especially in times of crisis. Lawyers and PR professionals can and should work together to help clients maintain their reputation not just when things go wrong, but also for years after the case is closed.

James Hoggan is the president of Hoggan & Associates.