Avoiding the Legal Response Syndrome

Erik Bernstein litigation-related crisis management


[Editor’s note: Australian crisis expert Dr. Tony Jaques has just published a new book which addresses the challenge of how to balance legal and communication advice when a crisis strikes: Crisis Counsel: Navigating legal and communication Conflict (Rothstein 2020). In this extract, he introduces the idea of what he calls “the Legal Response Syndrome”.]

Avoiding the Legal Response Syndrome

Regardless of the category of crisis, there’s a good reason why legal advice is important in crisis management, namely that just about every crisis or potential crisis has a distinct legal component.

But at the same time just about no crisis or potential crisis is ever solely about legal matters. I need to say that again because it is so critical: Just about no crisis or potential crisis is ever solely about legal matters.

Failure to understand that leads to what I call the Legal Response Syndrome, where your organization treats every crisis as if legal considerations override all others. Of course, it’s important that all legal angles are appropriately addressed. And of course, you need to seek and listen to legal advice. No responsible executive should proceed without fully appreciating the legal position. Moreover, executives and boards have a statutory obligation to act in the best interests of shareholders. That’s spelled out by law.

Given that framework, it’s perfectly understandable that you tend to listen to lawyers. After all CEOs and the Boards they report to must be well versed in all legal responsibilities and requirements of compliance and fiduciary duty (not to mention that they may be paying very handsomely for legal advice).

The Legal Response Syndrome arises when legal counsel is allowed to trump all other advice, be it operational, business, marketing, human resources, financial or communications. But that’s no reason to just default to “Let’s go with what the lawyers say.”

The lawyer can be acting as a litigator dispensing caution or as a counsellor helping to find team solutions. At the same time you need to fully understand the difference between legal advice and business advice.

As American attorney David Bernick has written:

“Good litigators are not necessarily good counsellors, particularly where the company’s reputation may be destroyed long before the first trial is completed.”

His Californian fellow-lawyer Adam Treiger is even more blunt:

When your client has a crisis that could put it out of business, call the crisis manager first, think about legal issues later. If you do it the other way around your client might not survive to utilise your keen legal analysis.”

Put another way, if you eventually appear in court as a result of the crisis, those legal proceedings will most likely be years in the future. But the court of public opinion is already in session and the public “jury” is already assessing the fate of your reputation. So it’s often the difference between an imminent crisis versus the uncertain possibility of litigation some time down the road.

The bottom line here is that when you’re facing a crisis or potential crisis the impact is immediate, and it’s not a question of which function is “in charge” or who has the greatest seniority, or the most qualifications. The real question is what is the best strategic response in the interests of your organization and the interests of your stakeholders?

A key problem when it comes to advice in a crisis is the common mischaracterization of what lawyers and communicators actually do. Although it should be obvious, lawyers don’t just deal with matters in court and communication professionals don’t just deal with the news media.

Many lawyers never appear in court for their client, and many communicators rarely, if ever, deal directly with the media. This lack of clarity about roles and advice becomes especially important when it comes to crisis response.

But, irrespective of the nature of the crisis, you can’t always hope that the lawyer and communicator will come to you with an agreed position. You have to recognize that, while the lawyer and the communicator may both be correct within the context of their respective disciplines – and while the full risks may never be neatly identified and quantified – nevertheless a decision must ultimately be made. That requires not only judgement, but balance between competing points of view.