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The Association of Corporate Counsel (ACC) is the world's largest organization serving the professional and business interests of attorneys who practice in the legal departments of corporations, associations, nonprofits and other private-sector organizations around the globe.

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By Derede McAlpin, Association of Corporate Counsel

Crisis is inevitable. It's not a matter of if a crisis will happen, but when. Every day, negative stories about companies dominate the headlines. Within minutes it can ravage reputations and diminish a company's most treasured asset - its brand. From investigations to whistleblowing accusations, regulatory actions, high profile litigation,and data breaches, all companies ultimately face some level of risk. For in-house counsel, it means there will never be a shortage of risk. Therefore, in a time of instant and lasting impressions, it is imperative for in-house counsel to know the strategies and tactics needed to protect the companies they serve. What is at stake when an issue isn't properly managed? Potentially everything. The effect of negative media coverage can be permanent. It can trigger litigation, drop stock values, and completely destroy a company's reputation. In-house counsel should be ready at a moment's notice to implement integrated reputation management strategies that include sophisticated, professional, and systematic programs geared to protect their companies throughout the course of a crisis. Absent such strategies, an organization will often surrender a significant advantage to adversaries in both a court of law and the court of public opinion. In order to mitigate risk when a crisis occurs, keep these ten tips in mind.

1. Perception is reality.

It's all about the optics. People generally view the world though a constantly-shifting lens. Everyone comes to the table with their own set of experiences and biases. Therefore, in order to effectively respond to a crisis, one must take into account how the situation might be perceived by all stakeholders and the public at large.

2. Gather intelligence.

Is the media aware of the situation? Why did it happen? What is the problem? Who is involved? Who needs to be informed? Form an issues management team and gather all intelligence. The quintessential issues management team is comprised of inside and outside counsel, risk managers, experienced communications professionals, compliance experts, and the managers closest to the situation at hand. Once assembled, the team should discern the facts and work through a 'Who, What, Where, How, and When' scenario to get to the root of the problem. Once the problem is thoroughly analyzed, it is then crucial to investigate the past for similar issues.Look for related occurrences, civil or criminal litigation, or any outstanding issues that have yet to be resolved but will most certainly be resurrected in the court of public opinion. Knowing what these issues are in advance will help mitigate further damage and will put the company in better standing in the long run.

3. Identify a strategic objective.

The basis of an effective crisis response plan is having a clear understanding of your goals and desired outcome. Determine whether the goal is outright vindication, a public display of repentance and redemption, or something that must be resolved in a court of law. Each objective requires drastically different internal and public communications strategies to come to fruition.

4. Assess, control and treat.

Managing a crisis early is the key to success. This can be easily broken down into a three-pronged imperative: 1) assess the potential negative impact on reputation; 2) quickly take steps to control the narrative; and 3) as appropriate, provide remedies to affected parties aimed at mitigating the likelihood of litigation or other adverse actions.

5. Protect the company's online reputation.

Many companies overlook the importance of managing their brands in social media. Set up a 24/7 monitoring protocol and work with an experienced social media expert to determine the best way to respond to online attacks.

6. Anticipate problems.

The key to success is stamping out the issue when it is an ember, rather than waiting until the house is almost burned down. Use peacetime wisely and develop an issues management plan for all anticipated problems before something rises to the level of a crisis.

7. Identify third party advocates.

Identify and recruit potential third-party advocates, which are uninterested parties or organizations that can speak out on your behalf. Third parties are very important because they are perceived as more credible than someone with a vested interest in the outcome of the case or issue.

8. Recognize the power of the 'arm chair juror.'

The court of public opinion can impact the outcome of a case, and it doesn't matter whether the information is admissible under the rules of a particular jurisdiction. In reality, prejudicial information is going to obtrude on a case whether the court bars it or not. Jurors cannot turn off their memories like a spigot, and, as a practical matter, limiting exposure to the Internet is impossible.

9. Think like a consumer.

One of the biggest mistakes companies make during a crisis is putting out statements that look like 'corporate speak.' It gives off the impression that the company is not concerned about the issue and is just trying to make the problem go away in the news media. All messaging should be tailored towards the consumer or the key audience you're trying to reach. At the onset of the crisis, create a list of everyone who's affected by the issue, and then draft messaging that addresses the concerns of each one.The list should include everyone down to the receptionist answering the phone. For example, if it's a potentially defective baby product, then the messaging should address the concerns of mothers and parents.

10. Address media inquiries.

When a crisis occurs, ignoring the media will not help the situation. In most cases, it will actually extend the life of a news story and turn what could be a one-day story into a week-long melodrama. Companies are also often more inclined to issue a "no comment," but doing so only makes the company appear guilty. Avoid being defensive and talk about your next step, even if it's not going to ultimately resolve the problem. The most important takeaway for in-house counsel confronting a crisis is to look at a crisis as an opportunity. At the end of the day, crisis situations are a reminder to corporate counsel that client service now demands a range of skills extending beyond the average law school's curriculum. And while there is no single script for managing a crisis, there are best practices that corporate counsel can implement and follow and, most importantly, sound judgment to help them through the crisis.

Region: Global
The information in any resource collected in this virtual library should not be construed as legal advice or legal opinion on specific facts and should not be considered representative of the views of its authors, its sponsors, and/or ACC. These resources are not intended as a definitive statement on the subject addressed. Rather, they are intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers.