Crisis Lawyering

Volume 7 • Issue 6 • September/October 2021
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Communicating Clearly

Crisis communications requires empathy, trust, and planning

In “Beyond the Comfort Zone,” Ray Brescia and Eric K. Stern explore how lawyers problem-solve during complex emergencies that test their personal and professional identities. In this story, we shift the focus away from lawyers, instead exploring the related, but ultimately distinct, discipline of crisis communications. We ask: how do such crisis communicators chart a way forward through similar—often the same—stressful scenarios, managing to not let such events get the best of them? In offering this comparative perspective, we take stock of the mindsets, skills, and techniques that a different well-developed profession brings to bear on high stakes, urgent situations. First, we discuss the theory and origins behind crisis communications as a discipline. Then we explore crisis communications in practice, including how industry professionals employ crisis simulations, tested methods, and empathetic approaches to be effective with clients. Finally, we conclude with a discussion of what crisis lawyering might learn from crisis communications, while also acknowledging the ways in which communications and lawyering are both part of the larger enterprise of crisis management.

Theory and Scholarship: From the Academy

“Perception is everything,” says An-Sofie Claeys. An assistant professor of corporate communication in the department of translation, interpreting, and communication at Ghent University, Claeys has more than 15 years of expertise in crisis communications. Her reputation and scholarship have made her a relevant source for companies building crisis management plans or experiencing acute crises, who sometimes contact her for advice. (She is never paid to consult.) This idea—that perception is everything—flows from her research and shapes her advice to companies looking to salvage or boost their reputations amid panic or uncertainty.

As a field of study, Claeys notes, crisis communications began to blossom in the 1990s. Like many new areas of academic inquiry, it came through a variety of disciplines—economics, psychology, rhetoric, neuroscience, sociology. When scholars assess how the public perceives emotion in a politician’s apology or what strategies might provide the best protection for a company’s reputation after a scandal, they could draw equally from theories of semiotics and business school teachings on management. Now, one might classify crisis communications as part and parcel of public relations—even as it has become so much more.

“Try to distance yourself from the legal reality of liability and accountability,” An-Sofie Clayes of Ghent University.

In the beginning, crisis communication basically boiled down to, “No comment,” says Claeys. “Many organizations just assumed that they didn’t really have to respond to complaints and the public didn’t really have the strength to demand it, but now we have social media,” she adds. The Internet emboldened and empowered consumers to gather and demand action from corporations and individuals accused of wrongdoing in increasingly new ways.

Some credit the first press release to Ivy Lee, an early practitioner of public relations and a recovering journalist, who convinced the Pennsylvania Railroad to make a statement to the public after a tragic train accident. The statement, which was reprinted in the New York Times, emphasized that the railroad company was working diligently to uncover the root cause of the accident, which resulted in dozens of casualties. The Pennsylvania Railroad press release gets at an important aspect of crisis communications research as it’s studied today: accountability. “It’s not as much about how accountable you are, it’s more about how much accountability is attributed to your company,” says Claeys. And how accountable you are can make or break your reputation. “Try to distance yourself from the legal reality of liability and accountability,” Claeys advises. “Look at how you will be perceived and how you can address the situation so that you might be perceived more favorably.”

Several academic theories help companies to navigate the perception minefield. In 1997, William Benoit began publishing on the topic of “image restoration theory.” Benoit outlines several strategies for responding to a corporate crisis. From denying one’s part in a scandal to admitting fault but blaming good intentions, the strategies are generalizable enough for any crisis, focusing not on the particulars of what happened but instead on the message one might communicate to the public to aid in reputational repair. Later, W. Timothy Coombs proposed situational crisis communications theory (SCCT), an idea that suggests different responses based on to whom the public attributes responsibility for the crisis. Unlike image restoration theory, SCCT breaks down organizational responses based on the type of event: If the organization is considered a victim, and not accountable for what happened, it can deny responsibility in its corporate statement. If it was an accident, like many product-harm crises, the organization can try to diminish its role in the situation or the severity of the matter. If the organization is to blame, it should try the rebuild strategy: apologize, right the wrong, and try to rebuild public perception.

SCCT, like image restoration theory, is all about understanding what the public will believe and trust. Critically, both models—as well as a host of other well-developed ones that span crisis communication theory—offer professionals a “guidebook” and set of methodologies for responding to an acute crisis. But how does crisis communications work in practice, especially for professionals undertaking the work in high stakes, uncertain situations? Having a guidebook is one thing, but how the processes map onto the people is quite another.

While plans are important and offer a roadmap, they are useless if the crisis communications professional doesn’t have the built-in trust needed to impact downstream decision-making.

When it comes to actually implementing the advice of experts, it’s hard. Claeys likes to advise corporations and public relations students to think long-term—all the research, she says, supports “stealing thunder”—self-disclosing a crisis—as an effective strategy that builds public trust and shines a “halo effect” on the company. But, at the same time: “What you see often when companies have dealt poorly with a crisis, they’ve often focused on the more tangible, short-term effects,” she says. “Companies think, ‘If I apologize, that incurs legal liability, and if I just don’t tell anyone, maybe no one will find out.” It’s scary, she admits, for the company. In all her consulting, only one company has ever taken her advice. For an hour that company’s scandal topped the headlines—and then, just as quickly, it disappeared. The strategy worked, but it can be difficult for both the company and the crisis communications professionals who are often faced with pushing the best of a set of universally difficult options.

When Claeys teaches her students how to study and practice crisis communications, much of her advice is about assessment and planning. In assessing the situation, students learn to take stock of what is happening, the history of the company, and its pre-crisis reputation. “If you know how the company was perceived before the crisis, you might be able to predict how they will perceive your response and select the appropriate plan,” she says. For both in-house communications professionals and external PR firms, having deep-seated relationships between team members and with clients allows for a broader perspective when challenges arise. It also, Claeys notes, allows for the necessary trust to be there when a crisis inevitably hits. While plans are important and offer a roadmap, they are useless if the crisis communications professional doesn’t have the built-in trust needed to impact downstream decision-making.

It is also important to plan for the variety of crises that may occur—before they happen. This might include anything from talking through various scenarios to hiring a company to simulate a ransomware attack so you can understand how internal stakeholders might operate when your data and reputation on the line. Claeys stresses that doing this prepares both the client and crisis communication professionals psychologically. You begin to understand if you’re the type of person who can handle ambiguity and what this means for whether or not you should inhabit a decision-making role during a crisis; you might be a great communicator in routine situations, but during urgent, fast-moving scenarios, perhaps you disregard legal advice and fail to collaborate. What does this mean for your role during a crisis?

“The advantage of an external firm is that you have people who are specialized—maybe in lobbying or public affairs—and it can be really useful to have people on board that have actually experienced crises, rather than just practiced them,”  says Claeys.

“If you practice your crisis management plan or crisis communication plan, that’s when problems will pop up and you will learn what you have to adjust. That’s when you’ll see, ‘Oh, well, we didn’t prepare for this in the plan, or we did prepare for this aspect, but turns out this wasn’t the right way to go for our organization, we have to do things differently. We have to change things, or this information in the plan is outdated, we have to make sure we update that.’ Or, simply, you practice it, and practice makes perfect,” says Claeys.

Critically, a crisis communications plan designates “the team.” It emboldens certain individuals to make decisions and designates others as advisers who must be consulted; it is almost always interdisciplinary—made up of management, communications, legal, and other departments, like HR, as necessary. Increasingly, this team also involves external stakeholders, such as a dedicated external public relations firm or crisis management group on retainer to provide a professional perspective. Indeed, broad-based experience is incredibly valuable in crisis communication, says Claeys, leading many large companies to bring in outside firms when situations are complex and reputational threats have the potential to produce severe business consequences.

“The advantage of an external firm is that you have people who are specialized—maybe in lobbying or public affairs—and it can be really useful to have people on board that have experienced crises,” she says. “Because you can learn theories and you can draw up plans, but a crisis is a really specific situation, and you need to be able to have a good type of gut feeling—a type of instinct that is rooted in experience. And the people with that experience will have both theoretical expertise and practical backgrounds—that’s really crucial to have in times of crisis.”

Professionalization and Practice: From the Field

A robust set of academic literature on crisis communications sits alongside a plethora of options for practice. There are crisis communications shops within public relations firms; there are firms that exclusively market themselves as crisis management; there are even crisis management specialty groups within law firms. FleishmanHillard is a global PR agency with a dedicated crisis management sector. The Practice recently talked to Ken Fields, senior vice president and senior partner at the firm, and the company’s Americas Crisis Lead. Fields began his career as a local television journalist. In that role, he learned about building clear, simple stories that might connect with broad audiences. Now, he lives in St. Louis, Missouri, where he leads a crisis practice that includes more than 100 counselors who are certified to lead crisis work for clients across the Americas on building, protecting, and repairing reputations.

When asked what makes a crisis communication professional successful, Fields notes that one of his central considerations is empathy. A good crisis counselor—a term he uses frequently, alongside advocate—is someone who “relates to people really well,” he says. At FleishmanHillard, crisis counselors come from journalism, public affairs, government relations, and other areas. What all these counselors share is the ability to read a room, understand the interplay of humanity and stress in crisis, and distill a clear, simple, and accurate story for key stakeholders. “If you can’t adjust to that room and still have a very true north about what they need to be doing,” he stresses, “it will not be a good experience for anybody.”

 So much of crisis management is anticipating and predicting the next thing that’s going to happen, ” says FleishmanHillard’s Ken Fields.

Fields notes that there’s often a preconceived notion that those in crisis management thrive on adrenaline—after all, for organizations in crisis, time frames are often (though not always) short and decision points critical. “A few years ago, when I would interview people for a job, nine out of ten people would say, ‘I’m a crisis person, I like to do crisis.’ And honestly, I think for many of those prospective candidates, what they really meant was, ‘I like to react to things that come in the door,’” Fields says. When he hires for his team, Fields is purposefully trying to weed out those who come at situations with a reactive mindset. “So much of crisis management is anticipating and predicting the next thing that’s going to happen,” he says.

Whether crisis counselors are reacting or anticipating, it’s a taxing occupation and stress can easily transfer from clients to the team, he notes. “It can be fatiguing both in terms of the hours that are needed,” Fields says, “and because you have to be available all the time. But, helping clients when they need you the most fuels most of us.” Still, as a manager and public relations representative, Fields emphasizes an empathetic approach, trying to understand the pain points of crises both for counselors and clients. He is conscientious with his own colleagues, making sure they take breaks when needed. At FleishmanHillard, communications professionals might take on crises amid a range of other public relations work, a variety that can keep them fresh and ready to tackle crises with new eyes when they arise. Crisis counselors also receive ample training and support.

“You should really be planning for the recovery from the minute that crisis starts,” says Fields. “You need to be asking: What is the relationship that we want to have with our key stakeholders when this is over?”

To help provide a starting point for both its teams and its clients, FleishmanHillard uses a variety of methodologies to structure and prepare for high-stakes situations. Crisis counselors at FleishmanHillard, for instance, are all trained in the Assess.Resolve.Control™(ARC) methodology—a framework that allows crisis counselors and their clients to systematically approach problems, no matter the subject. While the actual solutions vary per client, the ARC method provides a plan so that clients and crisis communications professionals fully grasp the situation and can arrive at priorities collaboratively. Fields also stresses a fourth step to the ARC method not fully encapsulated by the acronym—recovery. “What happens in some crisis situations is companies just try to get through it,” Fields says. “Instead, our view is you should really be planning for the recovery from the minute that crisis starts. You need to be asking: What do we want to look like? Who do we want to be known as? What is the relationship that we want to have with our key stakeholders when this is over?” Crisis counselors make sure to ask such questions in the first meeting, allowing the end goals to shape decision-making from the beginning and throughout the ARC process.

Like Claeys, Fields stresses the importance of situational training prior to the crisis at hand. For instance, he notes that simulations offer executives and teams the opportunity to mentally and emotionally play out a crisis scenario, while media training and playbook building help clients craft the actual language they might use if certain events occurred. “Managing through a crisis, like any communication situation, is a muscle, and if you don’t exercise that muscle once in a while, it will atrophy,” Fields says.

So, what drives Fields through all the stresses at the end of the day? “I was really drawn to this notion that in a crisis, it is a defining moment for you and your relationship with key stakeholders,” he says. He goes on,

If you’re an organization going through crisis, your relationship with your stakeholders—those people who affect your business, whether it’s your employees or policymakers or customers or patients or whomever—will be changed. I believe it can be strengthened. I believe that, doing the right things in a moment of crisis to address that situation, you can actually make your relationships stronger. That’s where I derive a lot of personal satisfaction, and I think our team feels that same way.

How to Communicate Calmly in a Crisis

At the consulting company Exec-Comm, Jay Sullivan specializes in teaching people how to communicate, including in crisis situations. Years working both as in-house counsel at a homeless shelter for runaway youth and in corporate law taught him the skills necessary to be an effective counselor. An early interest in teaching brought him to Exec-Comm, where he works with lawyers and other executives on honing their messages in the workplace.

“The skills I knew I would need as a lawyer actually come into play every day in this job,” he says. Those skills include thinking on your feet, convincing an audience, dissecting complex ideas, explaining messages clearly to others, and influencing and persuading others. When he works with lawyers on their communication skills, he notes, they come armed with a critical eye—a unique facet that gives them an important vantage point in crises. Law school teaches you that there’s always another side to the story, he says, while empathy tells us that there are other feelings involved that also have to be added to the equation. Awareness of both is crucial for effective lawyering, he says, as well as for effective communications.

In Brescia and Stern’s edited volume, Sullivan bridges his experience as a lawyer with his work as an executive coach to distill concrete lessons for those looking to communicate or work with others in the midst of crisis. To manage a crisis in the moment, he writes in the chapter, “Stay Calm and Carry On: How to Stay on Point When in Crisis,” you must:

  1. Hone a clear and succinct message.
  2. Support your message through stories or by leveraging authority.
  3. Address the emotions expressed by others.
  4. Offer the other person a semblance of control.
  5. Control your own emotions when challenged.
  6. Stay focused in the face of a myriad of distractions.

Overarching through this is the single message Sullivan conveys in his communication coaching: focus on others.

Sullivan tries to make the idea of focusing on others as concrete as possible for people in his workshops. He challenges participants to avoid using phrases like, “What I want to talk about today is…,” which emphasizes what the speaker “wants.” He instead encourages people to use, “What I thought might be helpful to you today is….” It’s not just a semantic change. The new word choice reflects a different attitude.

He says:

The minute you start with that language, two things happen. First, you’ve told your audience—and it can be an audience of one or an audience of 100—you’ve told them, I’ve put all my energy into thinking about you and your needs. But more importantly, before you even get to that meeting, if you’re thinking about, “Okay, helpful to them…helpful to them…what’s going to be helpful to them?” then you start changing what you are going to share based on that objective. It’s not about me and what I want. It’s about them and what’s genuinely helpful to them.

The concept of focusing on others means always assuming there are more facts than what you know and knowing that there are always more emotions than just what you’re feeling. There are concrete steps you can take to practice both. And practice, Sullivan emphasizes, is key.

Where Lawyers and Communicators Intersect

Crisis communications requires collaboration, including across professional bounds. For instance, Fields notes that crisis counselors at FleishmanHillard often work alongside in-house counsel and external law firms. In these situations, Fields has found that the most productive partnerships emerge when both sides participate equally in the relationship. Lawyers will look to the public relations firm for their expertise in how the public will perceive the story; the PR professionals understand that they need lawyers’ eyes on a statement that might incur liability or have incriminating repercussions. These days, a crisis management team will often include both types of thinking, and a “crisis communication team has to be multi-disciplinary,” says Claeys.

Crisis lawyers must be comfortable traversing in uncertainty.

In “Beyond the Comfort Zone,” Brescia and Stern emphasize that crisis lawyering is grounded in skills, practices, and mindsets, not particular knowledge areas. Crisis lawyers can recognize what they do not know and work with others to fill in those gaps; they invest in transparent communication with their partners and approach situations with humility and open-mindedness. They must, also, be comfortable traversing in uncertainty. It is these former strengths—the ability to manifest a collaborative, unprejudiced, and humble mindset—that may help a lawyer faced with having to make a decision with incomplete information. “A lot of lawyers have already learned that there is a need to have a reputation after you get through the legal challenges,” says Fields. “It’s important to recognize that everything that organization does in crisis may become public and you just have to recognize that both parties have a role in shaping that process.”

Claeys, too, has reflected on how managerial and legal departments work with public relations in times of crisis, noting that an overabundance of caution toward liability might move lawyers toward ineffective statements from a public relations perspective—apologies that come too late or expressions of sympathy over taking responsibility. Recent studies have shown that, increasingly, legal advisers are beginning to understand that the public’s perception is just as important from an economic standpoint. For instance, in Claeys’ research, legal advisers have found careful, delicate ways of crafting apologies that avoid legal liability, but recognize the ever-growing importance (particularly in the age of social media) of public sentimentality and external stakeholder impacts. These lawyers often do this by working directly with crisis communications to find the best balance—itself a task requiring inter-professional teamwork, collaboration, and trust. (For more on how lawyers can gain these skills, see “Educating Crisis Lawyers.”)

At the end of the day, people—and businesses—do not have legal crises or public relations crises. They have crises.

Working in crisis situations is as much about empathy and respect as it is about any piece of technical knowledge—let alone riding an adrenaline rush. Crisis communications professionals are advocates helping businesses tell a story. Lawyers can be helpful collaborators in that journey. Teams between different types of professionals can be a safeguard for individuals confronting the situation anew, overcome by the ways in which their training and experience have not prepared them for this moment. In any crisis situation, collaboration between differently-minded individuals is key. Crisis management teams operate better as cooperative, multifaceted groups with representation from different departments and ways of thinking. Outside firms offer external perspectives to those faced with internal threats when such threats are all-consuming. At the end of the day, people—and businesses—do not have legal crises or public relations crises. They have crises. They need a range of expertise and experience to help them endure.

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Crisis Lawyering Volume 7 • Issue 6 • September/October 2021

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