Attorneys should know perils of court of public opinion

Legal counsel and public relations counsel: oil and water? Not necessarily. We both are often required to collaborate to provide our professional points of view and expert advice to chief executive officers facing or managing a corporate crisis.

August legal counsel will often argue in favor of “no comment.” I’ll counter that polls show people view that retort as evasive, stonewalling, covering up, hiding something and at the least, disingenuous. Further, I will argue, if you don’t comment, others will (competitors, perhaps, critics, regulators, plaintiffs?)

As a public relations practitioner with more than two decades of senior level experience helping to guide CEOs and other top executives through crises or knotty public relations challenges, I often enjoy having corporate legal counsel on my team of advisors. Some of my best friends are attorneys.

Corporate public relations counselors and legal counsel can work especially well together when the CEO we are advising understands that he or she must receive and analyze advice from public relations and legal experts with equal weight, and then reach their decision.

One of the strongest arguments for a client to ascribe equal weight to advice from PR counsel and legal counsel, is, of course, that while legal counsel may eventually be called upon to manage the outcome of a crisis in a court of law, public relations practitioners operate real time in the very unruly court of public opinion. It has been proven time and again that what the client says and does before, during and after a crisis can often eliminate the prospect of legal action altogether. “No comment” won’t.

Open Communication Averts a Lawsuit

One of our most significant successes was achieved in a landlord/tenant dispute we kept out of court by applying a policy of open communications with homeowners after legal counsel had urged a strategy of silence. Angry about substandard construction on outdoor patio decks that made them dangerous to use, the homeowners association (HOA) leadership was threatening to sue the condominium ownership company (our client).  The ownership’s legal counsel was fearful that opening lines of personal communication with individual homeowners, which we recommended, risked “saying the wrong thing” that could then be used against the company in court.

We countered that by going around the HOA and opening a dialogue with individual homeowners about the damage a lawsuit could do to their property values, salability and the property’s brand, we would be able to generate popular opposition against the pending suit.

It worked. The HOA was overruled by concerned (informed) homeowners and backed down. The suit was averted, and the condominium owners proceeded with repairs, to everyone’s satisfaction.  (I recall how upset the local media was because they had been alerted to the pending suit by officers of the HOA, and when the settlement was reached, the media was left without a story.)

Quirky Differences Between Court of Law and Court of Public Opinion

Here are some well-established, albeit quirky differences between the court of law and the court of public opinion that keep seasoned public relations practitioners awake at night. We know these unrules very well, and consider them thoroughly as we provide advice to clients in crisis (and their legal counsel):

• In the court of public opinion, a speedy trial is always guaranteed, usually on Twitter
• You have the right to remain silent, but it will be held against you
• In the court of public opinion, the rules of evidence are suspended
• Court reporters? Sure. They tweet, blog, vlog, post, pin, tag and text
• The accused can be tried, convicted and sentenced in a sound bite
• No one is sworn to tell the truth
• Rumor, innuendo and lies can be admitted as exhibits for the prosecution, but not the defense
• There is no judge, but many who judge
• Once something has been said publicly, you cannot instruct people to “disregard that last comment”
• There is no one to order the court reporter to “strike that last from the record”
• Objections? Really? Objections are always overruled, and even shouted down
• While generally inadmissible in a court of law, past indiscretions and misbehaviors are always juicy topics in the court of public opinion
• Hearsay is not only allowed, but encouraged and widely established as actual fact
• Character does not count; in the court of public opinion, character references are suspect and subject to abuse
• Spouses can testify against each other, and are encouraged to do so by the media
• It does in fact help to throw oneself on the mercy of the court of public opinion, practicing the 3Rs of crisis communications: regret, reform and restitution
• In the court of public opinion, you have the right to call witnesses, but it doesn’t matter
• The record is never sealed and nothing can be redacted
• And finally, there is no higher authority than the court of public opinion; once the verdict is rendered and sentence handed down, there are no appeals.