Why the Lawyers Always Win

From a colleague of ours, Michael Maslansky:

A crisis hits and the internal kabuki dance begins. The CEO. The lawyers. The communicators. And as if scripted in advance, the drama frequently plays out in a predictable way.

The CEO wants to fight back against the unfair criticism. The lawyer, preparing for coming litigation, doesn’t want the CEO to say anything that could create additional risk. The communicator argues against circling the wagons and instead wants to engage the angry mob.

When the dance ends, the lawyer is often standing by the CEO’s side while the communicator grimaces from the sidelines. But why?

Debates about how to respond in a crisis often boil down to arguments about whether the “litigation risk” is greater than the “reputation risk.” Looked at through the lens of behavioral science, it’s clear this is not a fair fight.

Humans are wired to find the arguments made by lawyers much more appealing. If communicators want to level the playing field, they need to make it easier for CEOs to compare the real risks of litigation with the costs of a damaged reputation.

In a crisis, a lawyers’ primary objective is clear and short-term: mitigate the costs you face today. The company faces certain litigation, they argue, and any statement can be considered an admission of responsibility. Saying nothing — or as little as possible — decreases the risks and costs of that litigation.

Communicators, however, often argue that the CEO must engage the media and the public to protect the company’s reputation. The company must show it understands the criticism even if it doesn’t agree with it. If you don’t communicate, you lose the trust of your customers. And that hurts business.

Here is why the legal arguments are more compelling.

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