Proposed apology legislation for Ontario could go a long way to helping companies defend their reputations during times of crisis without threatening court protections, a legal conference was told recently.
“Apologies are really important,” said media adviser Susan Reisler during a panel discussion on dealing with the public during a crisis. “Expressions of regret go a long way, and take air out of reporters’ sails. Once you say, ‘We regret what happened,’ they’re not going to be [as critical].”
The comments were made at the International Bar Association’s Toronto conference on June 19 and 20, “Crisis litigation: the role of the lawyer,” held at the Park Hyatt hotel.
The IBA’s litigation committee of the dispute resolution section presented the conference. It featured presentations by an accomplished list of lawyers from across the globe, including internal and external counsel, judges, as well as media advisers, with experience in conflict management.
Reisler, who frequently deals with lawyers at her media consulting firm Media Profile Inc., said counsel need to become familiar with “scenario planning” to adequately represent their clients in the press. That involves considering who the audience for the information is, what the clients’ objectives are in getting their message out, and how that message will sound.
It’s also vital to anticipate questions, she said.
“If I say this, what will the next question be, and the next question?” said Reisler. “So role-playing in advance of going to the media, especially when it’s a crisis, is really important.”
Lawyers need to work with their clients and communications staff on planning a media strategy, and it’s best to take a positive approach - whining rarely nets desired results, said Reisler.
She advises lawyers to consider everything they say regarding crises - to anyone, anywhere - as an interview. With modern technology and the internet, any comments can be widely circulated and picked up by the mainstream media, she noted.
Reisler added that it’s wise for corporations to be up front during crises, and even admit mistakes, even though many lawyers advise clients against admissions of fault.
Reisler noted that many jurisdictions have introduced legislation that allows parties to express sympathy regarding controversial incidents without courts considering it an admission of guilt.
The Ontario Bar Association earlier this year asked the provincial government to create its own apology legislation. OBA president Greg Goulin noted in a March 25 letter to Attorney General Chris Bentley that the Uniform Law Conference of Canada at its annual meeting in 2007 recommended the enactment of a uniform apology act by jurisdictions yet to do so.
Lobbying efforts continue on that issue.
Meanwhile, Rusty Hardin, a Houston, Tex. lawyer who has dealt extensively with media as counsel for the likes of athletes such as baseball player Wade Boggs and basketball player Steve Francis, called himself an “unabashed media lover.”
Hardin advised lawyers to make sure they get their message out on the “first wave” of media coverage to prevent their side from being left out of background content found in subsequent news stories.
Hardin added, “Learn to talk English, people,” suggesting lawyers often speak to reporters in legalese, which is hard to absorb for most viewers or readers. He recalled once being told by a television reporter that his trials received more media coverage than others because he spoke to journalists in “natural sound bites,” when other lawyers used language incomprehensible to the general population.
“If there’s any one thing I can suggest to all of you, it is quit treating them like the enemy, understand where they’re coming from, and deal with them early, quickly, regularly,” said Hardin, synopsizing his approach to dealing with the media. “And again, always tell them the truth.”
Glenn Garnett, executive editor-in-chief of Sun Media Corp., said lawyers need to keep in mind the modern 24/7 news cycle when dealing with the media during a crisis. Journalists are constantly updating their stories for the web, he noted.
He also offered a list of tips to help lawyers successfully navigate brushes with the press during a crisis, such as: never lie to journalists, make yourself available to them with cellphone numbers, help reporters understand the issues they’re covering, don’t pick favourites, and offer a set of steps you’ll take to make it right.
Garnett noted that few journalists now hunt for confidential documents in hopes of finding a scandal in the haystack. Modern technology allows the virtually instant transmission of sensitive company documents, said Garnett, and the Sarbanes-Oxley Act in the United States offers whistleblowers protections like never before.
“It’s never been easier to share bad news and document the evidence,” said Garnett. He adds that blogs provide a forum for the rapid dissemination of information by individuals who may, or may not, have the competence to provide informed comment on crises.
Panellists at the conference also weighed in on the topic of dealing with the media during litigation.
Geoffrey Hazard, a law professor at Hastings College of the Law at the University of California, suggested an “unbiased commentator” be assigned to speak with media in high-profile cases.
He said someone with experience in the area of law the case deals with, who also has experience dealing with media, would be a good candidate for the role.
Hazard said such a media representative would be particularly helpful is cases where “the matter has become so contentious that the lawyers are kind of jousting with each other in their interactions with the media.
“I’m very restrained in my estimate about how much good that would do, but I do think it would be an improvement,” he said.
While Hardin believes it’s important for lawyers to advocate for their clients in the media if their side of the story isn’t being told, he said lawyers have a responsibility not to criticize judges or the justice system
during litigation.
“Once lawyers go down that trail, of disabusing the system or the court, it is a very slippery slope for all of us,” said Hardin. “How can we ask the public to respect the rule of law if we as lawyers for a particular case decide to trash it?”
