I almost entitled this column “Lawyers v. Outrage Management,” because most of it is going to be about the conflicts between my recommendations to my clients and their attorneys’ recommendations.
First some disclaimers. My father was a lawyer; my younger daughter is a lawyer; my closest friend is a lawyer. I once planned to be a lawyer myself – and still browse longingly through my daughter’s discarded bar exam course books from time to time. My quarrels with the legal profession are those of a wannabe insider.
And I do think those quarrels have abated somewhat. The attorneys I encounter are increasingly likely to have some experience with Alternative Dispute Resolution, and to understand that ADR is often a wiser course than litigation. Even more importantly, the attorneys I encounter are increasingly likely to recognize that just-barely-legal behavior tends to have high reputational costs, and that clients who value their reputations don’t want to be guided too close to that edge. (In recent months accountants may have begun to learn this lesson as well.) In fact, attorneys are increasingly likely to recognize that even client behavior that goes nowhere near the edge of illegality may nonetheless trigger public and stakeholder outrage – outrage that a purely lawyerly strategy is powerless to prevent or abate. For all these reasons, it is no longer rare for me to get at least qualified support for my recommendations from in-house counsel (though it is still rare for me to get support from outside litigators).
Still, more often than not my clients’ attorneys hover somewhere between skeptical and diametrically opposed.
In this column I want to address three questions. First, why do attorneys usually dislike outrage management? Second, what can outrage management offer the legal process? Third – and most centrally – what are the genuine areas of conflict between law and outrage management?
I am grateful to my wife, Dr. Jody Lanard, and to lawyers Bill Goldfarb, Ellen Sadat, Bob Collings, and Jennifer Sandman, for their helpful comments on an earlier draft. They’re not to blame for what I didn’t change.
Why Do Attorneys Usually
Dislike Outrage Management?
Let me start by conceding the number one reason why attorneys dislike outrage management: It is always possible that a legally ill-advised outrage management strategy can have disastrous legal repercussions. I will repeat this acknowledgment periodically throughout what follows. A LEGALLY ILL-ADVISED OUTRAGE MANAGEMENT STRATEGY CAN HAVE DISASTROUS LEGAL REPERCUSSIONS. Of course a litigation strategy that is ill-advised from an outrage management point of view can have disastrous repercussions on stakeholders’ outrage and the client’s reputation. That’s true too. The two criteria – protecting the client from adverse legal outcomes and protecting the client from stakeholder outrage – are independent. Sometimes they are compatible. Sometimes they are in conflict. Sometimes they seem to be in conflict but can be reconciled with a little effort. Sometimes you just can’t tell for sure.
Understandably, even appropriately, lawyers are a lot more focused on one of the two criteria than on the other. And understandably, even appropriately, I am a lot more focused on the other one. In other words, lawyers and outrage managers are natural antagonists even when our respective preoccupations aren’t actually incompatible. We need to do a better job of listening to each other. And the clients we share need to do a better job of listening to us both, forcing us to work toward compromise, and if necessary working out their own compromise.
Outrage management makes a lawyer’s job harder. The typical attorney figures that taking my advice may increase our shared client’s risk of liability, penalty, or punishment – outcomes the attorney is paid to prevent. Even if the risk is low, and even if there are counterbalancing reputational benefits, managing the client’s reputation isn’t the attorney’s main job. Managing the client’s liability, penalty, and punishment is. No lawyer is going to get into trouble by adopting a narrowly legal approach to the client’s problems, even if that approach leaves the client legally victorious but widely hated. But a lawyer who decides to take a wider view and okays a corporate mea culpa aimed at reducing stakeholder outrage may be in serious trouble indeed if the approach backfires in the courtroom … even if it accomplishes its goals outside the courtroom. This is what I mean when I say there are genuine areas of conflict. I’ll have a lot more to say about them in the last and longest section of this column.
But first, what else is going on when outrage management advice and legal advice contend for the client’s attention?
Outrage management advice is often bitter medicine – uncomfortable, incompatible with aspects of the corporate culture, threatening to managerial ego, antithetical to the client’s own outrage. Even when they see its merits, clients normally hate my advice. Admit you messed up, I tell them. Say you’re sorry. Let your worst enemies help make it right, and give them the credit. Understandably, few companies and few individual managers find this counsel congenial. Once I’m gone, a client may well turn to an attorney and ask, “We can’t do that, right?” So the attorney says, “Right.” The client breathes a sigh of relief and reports back to me, “Our lawyer won’t let us do that.”
Of course this is more the client’s doing than the lawyer’s. “We can’t do that, right?” provokes a different response than “Help us figure out how to do that without unacceptable legal repercussions.” As for “Our lawyer won’t let us do that,” nobody ever says, “Our communication consultant won’t let us do that.” Managers who treat their attorney as a strategic demigod and their communicator as a merely human tactician are going to end up with an approach to controversy that is seriously unbalanced.
But lawyers would have to actually be demigods to resist their special status in the business environment. Inevitably their counsel tends to expand from legal advice to general business advice or even specifically communication advice, all cloaked in the stature of their legal expertise. “I wouldn’t do that,” an attorney intones about my recommendation to admit a mistake or even apologize for one … and the client crumples. If I’m in the room, I can ask: “Why? Will it damage the defense in some way? What way? How can we do it without damaging the defense?” Sometimes there are good answers to these questions; sometimes they are answers that mean the client really shouldn’t admit the mistake quite that openly or apologize quite that abjectly. Other times – more often, it seems to me – the attorney’s response to my probing comes down to this: “Well, I just don’t think it’s a good idea.” In other words, there isn’t really a legal problem; it just feels wrong. Of course attorneys are as entitled as anyone else to have opinions about whether, when, and how to address stakeholder outrage. But it’s worth noticing that our disagreement is in my field, not the attorney’s.
None of this is meant to imply that you can safely make outrage management decisions without your lawyer at your elbow. There are real conflicts. Finding a decent balance between communication considerations and legal considerations can’t be done without your lawyer. But it can’t be done by your lawyer alone either.
As is clear from the above, the conflict between communication advice and legal advice is to some extent a matter of turf. Outrage management threatens the attorney’s control over how the controversy is to be handled.
But it’s not all about turf. Lawyers and outrage managers have, typically, different goals and different audiences … and therefore different preferred strategies. Lawyers (litigators, anyway) want to win lawsuits; their key audiences are judges and juries. Outrage managers want to resolve controversies; their audiences are hostile or potentially hostile stakeholders. Throw into the mix a third professional category, public relations practitioners. PR people want to woo passive support; their audience is the huge and generally not very interested public. This is an oversimplified version of reality, of course, but it’s instructive. Lawyers assume a determined enemy to be vanquished with convincing arguments aimed at attentive, neutral arbiters who will apply preexisting rules fairly; their model is the debate. Outrage managers assume a potential enemy to be calmed by gestures of sympathy, apology, candor, and collaboration; their model is the family quarrel. PR people assume an uncritical, inattentive, and undifferentiated audience to be subtly influenced by sound bites; their model is the advertisement.
The venues in which we three work have much fuzzier boundaries than our models. That is, a typical real-world controversy isn’t a debate or a family quarrel or an advertisement, but has some of the qualities of all three. There are stakeholders whose outrage can be ameliorated, and publics whose allegiance can be seduced, and litigants whose claims can be rebutted. All three efforts are proceeding more or less simultaneously, and they naturally affect each other. Lawyers see my outrage management effort chiefly as a threat to their litigation strategy. I see their litigation strategy chiefly as a threat to my outrage management effort. PR people see us both as threats to their seduction of uninvolved publics.
Even when we take on board each other’s problems, we do so with our own strategic habits, preferences, and preconceptions. A lawyer’s natural instincts about how to respond to an angry stakeholder – a potential litigant – tends to be very different from an outrage manager’s instincts. For similar reasons, lawyers and public relations people are often at each other’s throats. And for that matter, outrage management and public relations are also natural antagonists. These three fields – law, PR, and outrage management – offer three very different visions of how to resolve controversy.
In my early years consulting on risk controversies, I thought lawyers and PR people were my natural allies. After all, I reasoned, they were professional communicators too. Together we could teach the techies how to communicate. I quickly learned that techies were relatively easy to win over. They had no communication strategy of their own (having determined at an early age that they were better with things than with people), and would gratefully soak up any communication strategy that was offered to them … especially one as reductionist, almost hydraulic, as my approach to outrage management. Lawyers and PR people, on the other hand, already know how to communicate. It’s what they do for a living. Then I come riding into town with a different way of doing what they already do. Not surprisingly, I get some opposition.
There is a final reason why some attorneys dislike outrage management: It threatens their livelihood. I don’t want to overstate this; I doubt it’s as important as some of the other reasons I’ve mentioned. But consider some hypothetical numbers. Assume that in the absence of outrage management a particular controversy will lead to 100 lawsuits, and the defendant company will end up winning 60 of them. Assume that good outrage management can reduce the number of suits from 100 to 20; but at the cost of some ability to defend – instead of winning 60 out of 100 (60%), the company will now win 8 out of 20 (only 40%). Now, which is better for the company – fighting 100 cases and losing 40, or fighting 20 cases and losing 12? Obviously the latter. But which is better for the legal department or the outside litigator? The former, I suspect – it’s a better won-lost record and a bigger budget.
I’m not suggesting that lawyers are uninterested in preventing litigation. Far more cases are settled than are litigated. But an outrage management strategy that nips potential litigation in the bud, eliminating even the need for settlement discussions – and that does so in a way that could damage the prospects of winning the few remaining cases that actually get litigated – this is not a strategy we should expect a lawyer to love.
And again, remember, that’s if the outrage management strategy works. What if it doesn’t? What if my hypothetical numbers are wrong? Suppose my outrage management fails to reduce the number of lawsuits by reducing the outrage; instead, it lures greedy prospective plaintiffs into court. (I’ll have more to say shortly about the distinction between outraged plaintiffs and greedy plaintiffs.) The failed strategy simultaneously makes the cases harder to defend because the client has thrown away all available defenses in an effort to be candid and apologetic. So the client ends up fighting 200 cases and losing 120! Moreover, tort defense lawyers worry less about their won-lost records than they do about the damages their clients are required to pay. Similarly, lawyers involved in regulatory proceedings worry most about that one break-the-bank decision. So suppose outrage management does succeed in cutting the number of cases to 20, but those 20 can rely on the company’s own admissions to make a case for punitive damages … and suddenly each of the 20 cases is costing more than 100 “normal” cases would have cost.
I keep saying all that won’t happen. But it’s got to happen at least occasionally. Why should a lawyer take the chance?
Copyright © 2002 by Peter M. Sandman, Reprinted with Permission
The next installment of this article, What Can Outrage Management Offer the Legal Process, will soon run in this blog and in the next issue of our newsletter, Crisis Management Today.
Want to skip ahead and read the entire article? You can do that here.