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Martha Stewart hasn’t done everything wrong on the PR front. But she’s come awfully close. There have been grave strategic mistakes, like retaining at least three public relations firms to advise her, making the odds of a unified message and timely response no better than 3-1. There have been grave tactical mistakes as well. When, for example, Stewart showed up for trial, it became all about her purse — a handmade Birkin bag which sells for $6,050. Robert Morvillo, her lawyer, is a great courtroom practitioner, but one wonders what he was thinking when he let his client array herself à la Marie Antoinette. Now, if you’re the general counsel of a Fortune 100 company, or even legal counsel to a $15 million soda pop distributorship, the question becomes: Why should you really care about such cases? You’re not a celebrity. Your company has done nothing wrong. Does former Enron CEO Jeffrey Skilling’s “perp walk” have any bearing on your business? What possible management lessons might you glean from Kobe Bryant’s bad decision to spend $4 million on jewelry for his wife at a moment when he could have been garnering sympathy among prospective jurors more likely to invest in a Timex? These media circuses are, in fact, crucially instructive for all businesses with something to protect besides their legal rights. Few general counsel or company executives are handcuffed, let alone in full view of a TV camera crew. But three inches of negative AP coverage, picked up by dozens of newspapers around the country, can affect a company’s reputation in far more costly ways than the litigation or potential criminal inquiry which is driving the process. For general counsel, the perennial mantra demands outside counsel who understand their business. In other words, they want you to speak their language and pursue their priorities. The highest priority is the brand. What do you know about your clients’ brands? A brand is a promise. It exists only in the minds of the buyers. Coca-Cola, McDonald’s, Nike, and Howard Johnson’s are prime examples. When you see the red and white soda can, the golden arches, the swoosh, or the orange roof, you know exactly what to expect. What is Michelin selling? Tires? No, it’s selling safety. The safety message is the only way you distinguish one round piece of rubber from another. Out-of-control lawsuits, replete with unpredictably negative public messages, undermine social contracts based on brand-driven trust and expectations fulfilled by performance. The corporate/customer bond is insidiously undermined — see WorldCom or Arthur Andersen. The brand, for those companies big enough and disciplined enough to have created one, is everything. BRAND PROTECTION Victory in the media often requires opposite skill sets than winning in court. Facts rule courtrooms. But perceptions rule the media tribunals where your clients’ vital brands are adjudicated. Facts that win in court often spell certain defeat in the media, because facts that win in court may confuse the fundamental message. When you marshal multiple facts, you are explaining, and explaining usually repels media sympathy. By contrast, a single, visually affecting message articulated by a trusted spokesperson at the right time is more likely to carry the day. Being visual is one of the best practices in protecting a brand. What is the picture you are portraying prior to and during litigation? Community-friendly company or impersonal corporate giant? With too many daily messages (3,000 to 5,000 is the daily estimate), audiences only have time and capacity to categorize. Is it good or bad, right or wrong? They do not have the time or interest to decipher complex or subtle reasoning. What is the picture your company or client is portraying? Here are the steps you should take: • Assemble a crisis team. Ideally, this corporate team, dedicated to brand preservation, should exist before a crisis hits or a suit is filed. It should be ready to spring into action, armed with a template crisis plan that includes everything from vital contact numbers to a “dark” Web site ready to open as an effective means of communication to key audiences. The team should include both legal and PR talent, and the two sides should be willing to learn from the other, however instinctually different they approach (or prefer not to approach) public disclosure. • Sacrifice something. The Johnson & Johnson Tylenol scare and the Exxon Valdez oil spill are the historic examples of how to handle crisis and how not to handle crisis. Exxon’s record for environmental responsibility is forever tainted by the perception of its cavalier attitude during the Alaskan disaster. By contrast, Johnson & Johnson made a sacrifice. The company proactively and voluntarily pulled all its products off the shelf, not just Tylenol. The message, sent loud and clear to the global marketplace, was that J&J cared more about people than profits. It was the ultimate brand preservation. Everything that Johnson & Johnson stood for was affirmed that day, and the message still resonates two decades later. For Johnson & Johnson, the reward was substantially increased market share, after short-term lost profits. Brand preservation during high-profile crisis can equal marketing opportunities. • Strategize your messages. Even Martha Stewart could have, and should have, articulated a message superseding all the minor but damaging messages about her personality. For example, she could have orchestrated a message of an overreaching government, striking fear among all managers of public companies in the United States. It then doesn’t matter whether you love her or hate her, if the dominant message is that what has happened to her could happen to any CEO who exercises his or her First Amendment rights (this is a media argument, not a legal one). On the PR side of her case, Stewart’s best defense was an offense. But for nearly two years, there has been little effective messaging of any sort. • Say something! There are few plaintiffs lawyers who decline to comment. Instead, they merrily wait for the defense lawyers to no-comment, then gobble up the news space they’ve been given. Your client’s brand integrity gets gobbled in the process as well. Alternatively, government prosecutors rarely comment to the press. This gives you the opportunity to wield more influence over the media coverage. And don’t underestimate the value of speaking to reporters off the record. This way, you can explain your client’s side of the story, without risking antagonizing the judge. • Tell all (or a lot of it). Be brief in your responses but comprehensive in covering the bases. Don’t let reporters find out something for themselves. Take a cue from prosecutors who during a trial reveal a plea bargain before the defense side has a chance to do so. Reporters will likely find out what you don’t want them to know anyway, then come back and confront you with the information, loaded for bear. By telling them yourself, you minimize the impact of the information. • Know about the reporter. Is the journalist an investigative reporter by trade? Has he or she been tough or unfair in the past? There may not be a lot of time for a background check, but get what you can. If the reporter is a pit bull, you will have to face the grilling — but, the more you know, the more you will be able to gear your comments to the reporter’s level of sophistication. • Play by their rules. Their rules include news cycles and filing times. Lawyers love to mull over innumerable contingencies, but if you don’t get your statement out by filing time, you may lose the opportunity forever. Press releases will not decisively affect the quality or content of the coverage, but they can be a first salvo. You don’t want the other side’s release to be the only one that reporters get, especially since that will likely mean more press inquiries directed to your opponent’s press contact. Be familiar with and use the wire services — such as PRNewswire — that can rapidly transmit your release to a comprehensive media list in time for the evening deadline. Which brings us back to where we started. With multiple PR firms assigned to the Martha Stewart case, even sympathetic reporters have often not been able to get a response (a.k.a., clearance) from all the firms in time to meet deadlines. Reporters have been holding their stories as long as they can to get the Stewart side, but often they go with what they have. When it comes to responding to the media in a high-profile trial, late is not much better than never. Richard S. Levick, [email protected], is president of Levick Strategic Communications, which has directed the media for more than 150 law firms worldwide and has handled the media on the highest-profile matters, from the Roman Catholic Church controversy to Rosie O’Donnell. Their latest book, Stop the Presses: The Litigation PR Desk Reference, is available for free. Contact [email protected].

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