Not Commenting on Pending Litigation = Epic Fail

There is a natural tension between attorneys and public relations professionals. We both are working with different, even conflicting interests in mind.

In crisis situations, legal counsel typically doesn’t want to comment and, if pushed, will often provide a pithy, benign statement that muddies the water creating challenges in the court of public opinion. On the flipside, sometimes PR teams can say too much, creating consequences down the line in a court of law. 

It’s been said that attorneys and PR meeting for the first time in a crisis is akin to a shotgun wedding. Having worked with lots of attorneys from Utah and around the country, we believe the key to successful communication is a combination of mutual respect, the ability to collaborate and appropriate preparation.

Frequently, we are amazed at the number of companies that will employ the canned response, “Our policy is we do not comment on pending litigation.”

The reason this statement is problematic is that in the media story regarding the dispute, it typically includes the opposition presenting their case and vilifying the company and their position in the process. Because it’s “pending litigation,” you in essence say nothing, leaving the public to question. They generally find you guilty, or irresponsible at a minimum, before the case is ever heard in a court of law.

There is an effective approach to overcoming this dilemma, which is where collaboration and appropriate preparation comes into play.

As an example: we worked with a client facing significant sexual harassment allegations in a prominent west coast market. We were engaged before the complaint was filed and held a planning session with both the client and their legal counsel.

In the meeting, the question we raised more than once was: “What can we say?” Counsel initially said “nothing.” After a little back and forth, we acknowledged we couldn’t discuss the merits of the case. What we could focus on was communicating company policy specific to the opposition’s complaint. The company’s response focused on how serious it took the issue (without discussing the case) and communicated what they had been doing and continue to do to prevent and appropriately address situations of that nature.

Crisis situations are stressful. Having your legal team work closely with an experienced crisis communication team especially before, but also during and after litigious situations, ensures that responses are effective for all parties. Not commenting because of pending litigation is not only detrimental, but it also misses an opportunity to affirm an organization’s reputation and credibility.