When ‘no comment’ doesn’t cut it

Jim Middlemiss
I’m tired of “no comment.” It’s a hackneyed phrase that lawyers (and organizations) rely on far too often and doesn’t serve a client’s interest. There’s nothing that suggests guilt more than seeing a lawyer or client running the media gauntlet trying to shove cameras out of the way or cloak their faces as they barge by a pack of microphones and TV cameras.

This is not just my opinion. Studies by public relations academics show that “no comment” holds little weight with the public. One survey found 65 per cent of the public equates “no comment” with guilty or wrongdoing.

The phrase, “no comment” simply doesn’t cut it anymore, especially in an Internet age, where social media spreads stories around the globe in milliseconds. From a PR standpoint, the notion that clients should clam up with a “no comment” went out with the horse and buggy. The legal business, however, didn’t get the memo. But that is slowly changing. More and more companies and lawyers are finding they have to say something to the press when the poop hits the propeller, because they understand that their reputation is at stake and they seek to finely balance the legal risk with the reputational risk.

Take this recent example. Canadian media recently reported on a lawsuit involving the Vancouver Canucks hockey team and a teenager who alleges a part from a confetti-shooting air cannon fell on his head at a hockey game in 2011 and left him with a traumatic brain injury. The Canucks acknowledged it was a serious and unfortunate event, and expressed empathy for the victim, indicating concern for the youth’s “health and well-being.”

Contrast that to the company that operated the cannon, HollyNorth Production Supplies, which clammed up when asked for comment, citing a gag order by the insurer. Where was the empathy for the victim? The Canucks sounded humane and concerned; the production company, cold and uncaring.

The notion that someone can’t comment because a matter is before the courts is one of my biggest pet peeves. Of course you can comment, you’re choosing not to.

There is also an unwarranted fear in the legal profession that if you show empathy for victims, it’s an admission of guilt that will come back to haunt you at a trial — a trial that is unlikely to take place, since between 94 and 95 per cent of cases settle.

Many lawyers have long held the erroneous belief that they should say nothing to the press because it is somehow unseemly and breaches legal ethics. In fact, ethic rules have evolved significantly since I started writing about the legal profession in 1987. In contrast to what many lawyers think, the rules actually condone lawyers speaking to the press. In some cases, lawyers have a duty to comment when legal situations arise, according to the Law Society of Upper Canada’s Rules of Professional Conduct, which were upgraded and became effective in October last year. It’s a welcome development.

Rule 7.5-1 states that as long as lawyers don’t infringe on their obligations to the client, the profession, the courts, or administration of justice, a lawyer can speak to the media. Commentary to that rule suggests in some cases lawyers “are under a specific duty to contact the media to properly serve the client.” It also acknowledges that lawyers are often called on to comment publicly on cases that are instituted or about to be instituted, and notes that “this, too, is an important role the lawyer can play to assist the public in understanding legal issues.”

Of course, what you say is critical. If there’s a victim, you want to be empathetic. If it’s a case of alleged wrongdoing, you want to make sure you are clear that your client believes in his or her innocence and is looking forward to clearing his or her name in court. Also use the opportunity to correct any erroneous facts that have been reported. Don’t come off as uncaring or indifferent to the plight of those affected by actions involving a client.

If there are victims, the focus should initially be on helping them and not denying guilt or passing the buck. Most importantly, be prepared and don’t go in thinking you will wing it.

The worst thing that can happen when faced with a crisis is making it all about yourself. Take Stephen Duckett, the former Alberta Health Services CEO. He was fired after repeatedly telling reporters he was too busy eating a cookie to answer questions about the state of the province’s health care system, as he fled down the street chased by reporters. (The YouTube video is hilarious and a recipe of what not to do when confronted by a media scrum. It also spawned a series of video mashups that are equally entertaining.)

Then there is former BP Petroleum CEO Tony Hayward, who whined about wanting his life back after the Gulf of Mexico oil spill. He later apologized for his comments, but the damage was done. He got his wishes and got his life back along with his walking papers.

What you say in a time of crisis is equally as important as the crisis itself, especially if it’s perceived that you are being deceptive. One academic study found 95 per cent of people were more offended with a company lying about an issue, than they were about the issue itself, despite how bad it was.

Remember that the next time you’re crafting a defence to your client’s case and want to place blame elsewhere or hide behind the cloak of no comment. It just doesn’t work in an age of social media and public skepticism about our institutions. You will end up with cookie on your face.

Jim Middlemiss blogs and is a principal at WebNewsManagement.com.

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