The Game Plan: Litigation and Crisis Communications in the Digital Age
[In part one of this series, author Richard Levick talks about what separates success and failure in high-profile litigation and crisis.]
In today’s digital age, it’s not just the audience that’s changing, the Internet itself is also constantly changing to an extent that demands persistent attentiveness to the actual means of communication. The challenge is both strategic and tactical; in other words, companies must have both a game plan and a familiarity with the ever-evolving digital tools by which that plan can be made to succeed.
It’s not about the newest gadgets or flashy social media platform, but rather about separating the wheat from the chaff. Of all the hundreds of new media platforms and hardware, which ones change the way in which people receive and share information? Both receiving and sharing are pivotal: receiving, for the obvious reason that democratized news choices undermine the nearly three-century-old Fourth Estate oligopolies. But sharing is equally powerful because how information is exchanged changes the equation. If a news consumer can now share their stream of information, they have the power to develop and sway trends. Truth is usually only what people learn first. As the old saying goes: “A lie can travel halfway around the world while the truth is putting on its shoes.”
You concede the argument by ignoring seismic trends.
May 1, 2012—The Revolution Will Be Televised
On May 1, 2012, the trend grew ever more seismic when Google changed its analytics to give optimization precedence to favor spoken versus written content in search results. (If you want to keep something a secret, the safest place is the second page of a Google search result.)
Changes in analytics happen maybe 100 times a year at Google. It’s always kept secret until it’s implemented, so no one can game the system. But the May 1, 2012 change was historic because, for the first time, audio changed the game. Suddenly, videos could control the narrative of a case or a controversy largely by controlling the search results. While the defense bar still has largely not figured it out, the plaintiffs’ bar and activist investors merrily control the narrative in matter after matter.
It was precisely the sort of decisive “event” that should inform how lawyers and corporate communicators go about their business. At a crucial moment during a litigation, crisis, or other brand-impacting scenario, global corporations and those who advise them must know not just what to communicate but how to communicate it. Emotions, not facts, control the narrative and therefore the jury pools.
The Three Lessons of the Information Revolution
There are three critical takeaways from this transformative shift in communications. While they may seem obvious, they are indeed so transformative as to demand separate consideration.
Speed—To say that the Internet has sped up our lives is to repeat the painfully obvious. Yet we usually miss the real lesson because we think it’s all about doing the same thing, only faster. But that is a drastic misreading of the fact and a sure-fire recipe for disaster. Speed really means that we can no longer base litigation or crisis communications strategy on being reactive. We must now enter the far riskier, unfamiliar world of the proactive. There is no longer any time to be reactive because minds are already made up by the time you have done so.
This new proactivity doesn’t necessarily mean going first and it certainly doesn’t mean taking unnecessary risks. Agile proactivity entails, instead, the kind of in-depth and substantive risk assessment that informs you as to what’s going to happen next. All communications strategy must be built on the kind of risk intelligence that is gained from a far deeper dive than Google searches or a discussion with traditional enterprise risk management professionals. We’re talking instead about the resources, human and otherwise, that can decipher the melody amid the proliferation of digital noise in today’s world.
Bank scandals, fracking, offshore drilling, sugar, and thousands of other matters and entire industries going south—for each of these there were key patterns evident months or years ahead. You must look for them; understand who’s saying what, from where, and why. Who is the first to tweet? What is the URL? Who is funding it? Are they purchasing search engine marketing advertisements? Where is the information coming from? What does relevant NGO fundraising cover? Who’s behind the video? To which journalists are your adversaries pitching their side of the story? Who’s hacking whom and what information has now become available? In all cases, as mentioned in part one of this series, intelligence informs strategy. Forewarned is proverbially forearmed and everything else is guesswork.
‘We can no longer base litigation or crisis communications strategy on being reactive. We must be proactive.’
Transparency—We all claim to be in favor of transparency until we’re the one called on to be transparent, then our enthusiasm wanes. Information leaks caused by hacks are veritable certainties. The reason for the hack may have nothing to do with the litigation a company is embroiled in or matter that you’re working on, but, once in the ether, the information is fair game for anyone to exploit, including your adversaries.
If you don’t want it public, don’t write it down. If you have written it down, if you’re running that risk for whatever sound business or legal reason, anticipate in your contingency planning how you’ll respond when the worst happens and that written information is shared publicly from the least flattering point of view.
Anger—People are angry in ways we have not seen since the 1968-1972 period at the height of the anti-Vietnam War movement, and at times it feels like we are moving toward an 1856-1860 pre-Civil War environment. Indeed, the five big tech companies—Facebook, Apple, Amazon, Netflix, and Google—are moving from gods to robber barons before our eyes. No time on Mount Olympus is ever permanent, as trust is now measured in terms of days and weeks: Yesterday, you or your client might have gotten the benefit of the doubt, today, not so much. In a week or two at most, you will be perceived guilty until proven innocent.
Now more than ever, you have to use your peacetime wisely and build a brand like Hershey’s or Harley-Davidson. Such companies have armies of true believers who know that problems are the exception rather than the norm. To aspire to this favored circle, you have no choice but to build your trust bank now, before the litigation or crisis tests your brand loyalty. Once the blockbuster lawsuit is filed, the lawyers need to ask the communications professionals what they are doing outside of the litigation to earn trust in an environment where trust is no longer a given.
A proactive game plan, based on multidisciplinary reviews of data and risk maps, executed and deployed today prevents the need to be to be ineffectively reactive tomorrow. Operating in an environment of fear almost always clouds judgement, which in turn can paralyze communications and weaken the defense.
Part one of this two-part series can be seen here.
For a free copy of the e-book, from which this article is excerpted, please email firstname.lastname@example.org