Thursday, January 23, 2014

Can communicators work better with lawyers? 9 ways to try

"You can legally do all of the things you are hoping to do in this program under the Clean Air Act," said the counsel at the U.S. Environmental Protection Agency to a senior official. "And now Denise is going to tell you how that's going to look."

That may have been my smoothest working relationship as a professional communicator working in tandem with an attorney: He not only got what I could contribute, he could explain it persuasively to the program staff--and he wanted me to succeed. But what happens when the lawyers don't talk to or work well with the communicators?

A health communicator sent in this story about a conflict between the family of a young girl whose tonsil surgery went horribly wrong, and the hospital where she'd been treated. Part of the hospital's statement said, "To date, they have been unwilling or unable to provide a physician to perform the procedures necessary, transportation, or a facility that would accept a dead person on a ventilator." Complicating matters: Brain death is legal death in all 50 U.S. states, as this New York Times analysis points out, and California is one of two states where that designation frees the hospital to decide when and whether to terminate care. The family, for its part, refused to let the hospital discuss the details of the case publicly.

My reader said "I get the point that they're trying to make--it's a fruitless effort, etc. However, as a communication professional I'm thinking their lawyers are running the show at this point. No sensitive human would refer to a little girl (regardless of the circumstances) as a dead person on a ventilator. So when you have a crisis situation that is being driven by lawyers or other outside-the-communications-field forces, how do you marry the two so you don't end up with an abomination like that?"

We can't guess at all the discussions going on in this hospital case. But any communicator--nonprofit, university, corporate or government--will someday face situations in which she's got to tango with the legal side, or may find it useful to do so. Here are 9 strategies that have worked for me in corporate, nonprofit and governmental settings, and with university clients...and, no surprise from a blog called don't get caught, most of them involve working ahead:
  1. Build relationships and bridges before you need them: Make it your job to meet or lunch with the attorneys, and start acting like a human with them on a day-to-day basis. Get to know them, their hobbies, their family matters. Share info. Ask questions. Get advice. Don't be a stranger, and don't assume they know what you need. The general counsel's office at EPA gave me a fake honorary law degree when I left the agency, figuring I'd asked so many questions about the legal wrangles that I'd earned it. If the counsel isn't in-house, of course, this could get expensive, so seek out the executive who oversees outside counsel first and build that relationship.
  2. Get your whole team thinking from the lawyers' viewpoint, then reverse the process: You can't catch everything, nor will you always agree. But your communications team will be better able to spot potential legal issues if you get them caught up with the attorneys' perspective. Try inviting your legal team to a staff retreat as speakers, letting them share insight and letting your team ask questions. Then reverse it: Ask for a similar chance to brief the legal team.
  3. Be the devil's advocate: Not unlike the campus security chief who told me during a media training that he'd just arrest any reporters who swarmed the campus during a crisis, your attorneys may be thinking strictly in terms of legalities. That's their job. Your job: Show them a 360-degree view of how others might see what's perfectly legal but unadvisable from your vantage point. (In the case of the security chief, we worked on what those headlines would look like the next day, for example, if arrests were made.)
  4. Keep your eye on the ball:  It's easy, during a crisis in which your company or institution is under attack, to get defensive and even proud of the territory you've staked out legally, and that can infect your public messaging. Trouble is, the public audience won't have been in all those complex meetings, hearing the finer arguments. Make sure you keep asking, "How will the parents/families/voters/consumers who hear this story think about us afterward?" and use that fulcrum to help shape the message.
  5. Find and publicize your commonalities: If you're a don't-get-caught style communicator, that abundance of caution trait is something you have in common with attorneys--if only they knew. Many of your best efforts aren't visible. Use senior staff meetings or those occasional lunches with the lawyers to share ways in which your team is working to keep the organization out of further trouble. Keep  "appearance issues" on the table--the ones that look awful and need deft public handling. You also might find common ground in copyright issues, legislation, reputation management, tax issues and more.
  6. Use others' bad news as a testbed:  Use bad-news stories like the hospital example above as a discussion prompt with your legal team. Share the coverage and ask for perspective from their side, then share your insights. What would happen if something similar happened here? What if we handled it this way? It's a safe way to learn and explore together, before you need to do so.
  7. Articulate a vision for what you want from the partnership: "I suspect you and I work best when there are no surprises" is a great way to broach the conversation about coordination, if that's what you want. Don't forget that many attorneys consider themselves wordsmiths, so if you intend to share responsibility for public statements in a crisis, get that on the table. 
  8. Bring something to the party: Go into these discussions armed with knowledge from your side of the fence--for example, the Securities and Exchange Commission recently cleared the way for Netflix, a publicly traded company, to use social media to announce news. That's good to know if the attorneys don't like the idea of sharing material information on Facebook. Likewise, if you're no longer using press releases to announce things or think that press conferences have proven ineffective, keep the lawyers in the loop. 
  9. Establish yourself as a vetting machine: My public affairs team at EPA met weekly with representatives from every program, at management's behest: If an action of the agency was going to become public, it needed to come through me. Those weekly meetings were a device I've used many times since in other organizations, sometimes before major events like annual conferences. The emphasis was on both good-news announcements and anything that might become public and require a response. Over time, establishing such a meeting establishes you as a vetting machine. Invite someone from your legal team to sit in. I guarantee they'll find it useful.
If you follow this approach, it will be much easier during a crisis to convince upper management that you need input into the public messaging, and to make your case with the attorneys for the actual wording. By the time the crisis erupts, you'll have goodwill and understanding to fall back on.

I often do media trainings that focus on how cross-functional units in a company or organization need to work together to respond to a crisis, and I'd be happy to work with you on such a training; just email me at eloquentwoman[at]gmail[dot]com. What tactics have worked for you in working better with your legal team?

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