Crisis Management: Working With (Not Against) the Media

In many cases, corporate crises will result from media coverage. Even if a published story isn’t the cause of a crisis, media coverage can exacerbate the reputational and financial risks involved. As a result, establishing a favorable relationship with the media is often a critical aspect of crisis management.

Too often, companies respond to negative media coverage by going on the attack. They hire public relations (PR) firms to lash out at media outlets and accuse reporters of spreading misleading, if not inaccurate, information. This, however, often has the opposite of its intended effect. Rather than backing down and issuing retractions, most media outlets these days are more likely to view this type of response as an effort to obscure the truth. As a result, they will double down, publish additional stories, and push the narrative of a big corporation trying to get away with something while attempting to silence the media.

To be clear, companies facing corporate crises do need to set the record straight. Oftentimes, media coverage of alleged corporate wrongdoing does only tell one side of the story. But rather than working against the media, it will be in companies’ best interests to work with the media in most cases.

Working with the Media as a Means of Crisis Management

So what exactly does it mean to work “with” the media during a corporate crisis? This concept is not nearly as straightforward as it may initially seem. The company’s internal communications department cannot simply contact local reporters and ask them to stand down until the company has had time to craft a statement.

To the contrary, like all aspects of crisis management, working with the media requires a strategic approach formulated with meticulous forethought and with due consideration for the legal considerations involved (which we discuss below). The company must have a clear and consistent message, it must deliver this message effectively, and it must do so at the right time and through the right channels. Anything less has the potential not only to be ineffective, but also to jeopardize the company’s position in the matter underlying the negative publicity.

1. Developing a Clear and Consistent Message

A common mistake companies make when responding to negative media coverage is to put out a statement immediately. While “getting out in front” of bad publicity can be helpful under the right set of circumstances, a statement that lacks a clear message will simply be ignored. If anything, such a statement will make it look like the company knows it got caught with its hand in the cookie jar, because it will lack any sort of alternate explanation for the negative coverage that is already out there.

Developing a clear message requires an in-depth understanding of the relevant facts. In most crisis situations, this will require an internal audit or investigation. Assumptions should not underlie any decisions about a company’s crisis response. All decisions need to be fact-based, and they need to take all relevant facts into account. Unless and until a company has a clear understanding of all pertinent facts, it is not in a position to make any substantive statements to the media.

Consistency is key here as well. Another risk of quickly putting out a statement without first knowing the relevant facts is that the statement will be inaccurate, incomplete, or both. None of these are good, and the last thing a company should be doing in a crisis management scenario is walking back its own misleading statements.

2. Delivering the Message Effectively

Once a company is ready to address the media, it must carefully craft its statement with a specific and identifiable purpose. Every word matters. Because of the legal implications involved, the statement should be crafted by the company’s outside legal counsel—who should deliver the message as well.

3. Delivering the Message at the Right Time and Through the Right Channels

Beyond crafting the company’s message to the media, legal counsel also can (and should) assist with determining when, where, and how to deliver it. Here, there are lots of possibilities. Does it make sense to issue a press release? Contact a local or national reporter? Arrange a press conference? Different scenarios will call for different approaches.

As for timing, the right time to engage with the media is often much later than corporate insiders and PR consultants think. This is largely due to the legal considerations involved. Since the company’s legal counsel should be delivering the message, contacting the media also raises questions of privilege, confidentiality, and ethics.

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Legal Considerations for Working with the Media During Crisis Management

Working with the media during a corporate crisis has legal implications on several levels. Most fundamentally, the crisis has legal implications itself. Ultimately, responding to the crisis should be the top priority, and the focus should be on meeting any attendant legal obligations (i.e. issuing breach notifications in the event of a cybersecurity incident) while also avoiding federal enforcement action and mitigating any potential civil liability to the fullest extent possible.

Even at the earliest stages, working with the media and protecting the company’s legal interests go hand-in-hand. For example, conducting an internal audit or investigation also serves to inform the company’s defense strategy as well as any other responsive measures. Gathering all of the relevant facts allows the company’s legal counsel to formulate a targeted defense strategy and execute this strategy in parallel with engaging the media.

When it comes to communicating with the media directly, defense lawyers need to be careful to protect both their clients and themselves. Oftentimes, lawyers cannot say everything they would like because doing so would either (i) waive the attorney-client privilege, (ii) result in disclosure of the client’s confidential information, or (iii) risk revealing a defense strategy or compromise the company’s position in pending civil or criminal litigation (if not all of the above). All of these present risks for ethical violations—which has both direct implications for counsel and indirect implications for the company.

The ethical rules that govern lawyers’ statements to the media during pending investigations and trials have been in place for decades. As such, they are from a time when the media played a very different role than the media of today. For example, the leading U.S. Supreme Court cases on the subject date from 1966 and 1991. As a result, there is very little in the rules or governing precedent that reflects the current media (and social media) landscape.

For many lawyers, this has led to a default practice of avoiding the media entirely, and simply responding, “No comment,” when contacted directly. But, while this may allow lawyers to avoid difficult questions, it isn’t necessarily (or even often) the best approach. To the contrary, communicating with the media still presents an opportunity—as long as it is handled carefully, with forethought, and with due consideration for the risks involved.

Lawyers risk getting their clients (and themselves) in trouble when they use the media to convey a persuasive point of view. While it may seem counterintuitive, generally speaking, statements to the media should acknowledge that there are two sides to the story (don’t forget, the “other” side has usually already been publicized). Similarly, rather than trying to deny publicly-available facts, lawyers should instead acknowledge these facts and address them substantively when possible.

Lawyers must avoid using words that suggest or support a particular outcome (i.e., victory, prevailing, and winning). This is true even if they have unwavering confidence in their client’s position. Instead, when working with the media, lawyers should focus strictly on the relevant facts; and, when choosing which facts to cover, lawyers should be careful to avoid leaving out facts that are necessary to make their statements non-misleading (while, of course, also being careful not to incriminate their clients if this is a concern).

Some additional legal considerations for working with the media during a corporate crisis include:

• Timing in Relation to Legal Proceedings – In general, the closer a crisis gets toward trial, the less defense counsel can say. With this in mind, lawyers must think strategically about when to contact the media in between conducting fact-gathering and preparing to go to court.
• Influencing Potential Jurors – When making statements to the media, defense lawyers cannot say anything that has the potential to substantially impact potential jurors. Lawyers must refrain from making any statements that they know (or reasonably should know) have a substantial likelihood of materially impacting an adjudicatory proceeding.
• Targeted Media Outlets – While contacting a local media outlet may have the most impact, it may also present the greatest risk in terms of influencing potential jurors. As a result, it will often make sense to pursue media coverage through other channels.

Contact the Crisis Management Team at Oberheiden P.C.

Our firm’s Crisis Management team consists of former federal prosecutors, career defense lawyers, and former federal agents who have centuries of combined experience on both sides of corporate crises. We work with companies facing crises nationwide. To speak with a member of our Crisis Management team in confidence, please call 888-680-1745 or contact us online now.