Fred Krebs of the Association of Corporate Counsel’s In-House Access blog published an interesting recent post on “Dealing with the Media.” His blog post has some great pointers about what it means to speak with the media “on background,” keeping answers short, remembering that discussions with PR people within the company might not be privileged, and avoiding engaging your adversary through the media (particularly the DOJ or a state attorney general). Most in-house and outside counsel deal with media communications only occasionally, so this is a good list to keep handy for when this comes up.
Class actions and high-profile insurance coverage litigation, particularly catastrophe-related insurance litigation, can frequently result in media inquiries. I’ve dealt with this on a number of occasions and have some additional thoughts beyond what ACC has to say:
- Some companies only want in-house PR professionals to speak to the media and keep outside counsel (and sometimes even in-house counsel) entirely out of those communications. The danger there is that PR professionals, while trained to deal with the media, often do not have a thorough understanding of legal issues or litigation. Unlike lawyers who are accustomed to predicting what questions a judge will ask in litigation and having answers ready, PR professionals are not versed in that. Sometimes they will say something to the media that is not quite correct, or will not be able to clarify a reporter’s misunderstanding of legal procedure or a legal issue. On the other hand, lawyers sometimes may have difficulty translating legal jargon for reporters not familiar with the law, and may not anticipate how the media might react to some types of answers. One approach I’ve seen that can be effective is to have outside counsel and the PR professional prepare together and then speak to the media together, at least “on background” if not “on the record.” This can sometimes avoid these types of problems.
- Some companies almost never comment on pending litigation. While that may avoid mistakes, it can also become a disaster. A consumer-minded reporter who hasn’t heard the real story or the full story can write a scathing article that says at the end “the company declined to comment.” I don’t think I’ve ever seen a favorable (or even fair) article about an insurance lawsuit that says the company declined to comment.
- If you deal regularly with the media, I recommend following the Bulletproof Blog. I read that occasionally and it offers good tips on corporate communications.