FROM THE EDITOR

As stated in the "Just a Thought" I offered you, above, social media mandates -- I repeat, mandates -- that changes be made to any crisis planning document which doesn't accommodate the realities of social media in the year 2010. 

Ideally, of course, such plans are updated at least twice yearly anyway, but in reality that seldom happens.

In this issue, blogger and consultant Mike Johannson does a great job of getting you started on the road to improving those plans with his PR Crisis Management in the 'Twitter Age' article.

Then, we segue to a subject near and dear to my heart, talking to the media in litigation-related situations and, in particular, what lawyers should know about this topic, and The Need for Lawyers to Learn the Ground Rules of Talking to Reporters. Give it to your general counsel or outside attorney.  It's not a subject taught in law school.  And, although the article addresses lawyers, it has lessons for all spokespersons.  My thanks to the authors and their firm, McDermott, Will & Emery, for permission to use this piece that appeared on their blog.

Changing topics, if you happen to be a senior-level HR person, legal industry giant Steptoe & Johnson are holding their 7th Annual Labor Relations Conference in May, and it will include a crisis management-related presentation by your editor. All attendees will receive a complimentary copy of my new Keeping the Wolves at Bay - Media Training.

If you are eager for crisis management-related news in between issues, do visit our blog, which is fed stories five times a week by our "blog team," my son Erik and I.  Erik is also making some of my clients very happy with his social media program implementation on their behalf.

As always, if you like what you see, please share it with others by using the "Forward Email" link at the bottom of the ezine and tell them to subscribe!  IMPORTANT NOTE: I just learned from Constant Contact that if you just "Forward" using your own email program's "Forward" function and your recipient thinks they're being spammed, they can click on the Opt Out link and opt YOU off the list.   So use the "Forward Email" link, please.

My best to all,

Lawyers can get better access to all the facts and documentary evidence than non-lawyers because they enjoy the protection of the attorney-client privilege-i.e., they cannot be compelled to testify concerning their legal advice to their clients, or the knowledge they obtain in the course of being able to provide such advice, or the documents they review in determining those facts. 

By contrast, non-lawyer advisors, even those public relations firms retained by law firms to assist in litigation, do not share this protection: their documents may be subject to a "qualified" privilege, but there may be occasions when, notwithstanding that privilege, they will be forced to disclose to the opposition their written advice and strategic documents provided to lawyers that have hired them. And in any event, they will almost never be given the protection of the attorney-client privilege to avoid testifying to conversations to which they have been privy because, as non-lawyers, they cannot claim to be rendering legal advice. Indeed, if they are present while lawyers are providing such advice to clients, they may actually create a waiver of the privilege, leading to the horrifying possibility that even the lawyers and clients may be forced to testify as to what was discussed. 

Thus, lawyers need to learn how to talk to the media directly. They have access to the facts and for that reason are more credible in the eyes of many reporters. They also know the legal issues and risks involved in the litigation and won't be as likely to make an error that could lead to a damaging public comment that prejudices the case. And most importantly, they can work with the client and other lawyers to develop a believable message, based on the facts, that can drive and command the message in the media, correct factual distortions pushed out by the other side and avoid poisoning of the jury pool.

But in order to be most effective, lawyers enjoying the benefit of the privilege must learn the basic ground rules for talking to the press. This will be a first in a series of blog posts explaining both the ground rules as well as the special vocabulary and techniques for being most effective in talking to reporters.

For now, let's start with four voices that can be chosen and, once chosen, must be agreed to ahead of time by a reporter and/or his or her editor.

First, "on the record" means speaking with attribution, a name and identification as the lawyer in the case.

Second, "on background" must be defined ahead of time, since many people, reporters and non-reporters alike, mean different things by this expression. The best definition should be "on background-by this I mean you can use my quotation, but identify me only as a 'spokesperson' or 'lawyer for' and don't mention my name."

This is often confused with the third expression, "deep background," which is why both the second and third must be defined and agreed upon by the lawyer and the reporter before proceeding. "Deep background" means "you can use my facts as long as you do not attribute them to me, or if you have to use any attribution, then you can use something anonymous like a 'knowledgeable source' or 'source familiar with the situation.' Or you can use the fact without any attribution at all and confirm the fact with others."

Finally, there is "off the record." Many people use that expression to mean "on background" or "on deep background." It is highly recommended that "off the record" be followed by this statement: "You must agree that you cannot use what I say at all unless I change the ground rules and allow you to. You cannot mention the substance of what I say to anyone or that I am saying it. I am telling you this only for your own understanding and for no other purpose."

In other words, don't use "off the record" if you can avoid it. And if you must, use it only to explain a complicated problem that you don't want to see in print at that moment in time. 

On the other hand, we advise that even if you decide to use "off the record" and fully trust the reporter or editor who agrees to that ground rule, always be careful since many reporters, even in good faith, might unconsciously repeat the information and not even realize they are violating the ground rule. Thus, we always assume that even an "off the record" comment might be repeated or used, so we never use this expression to communicate something that is not a fact that can be documented and proven. 

In subsequent postings, we will offer examples of the use-and misuse-of these different voices, as well as vocabulary that should be used and communication techniques that work best with reporters.

This article originally appeared on, and was printed by permission of, McDermott, Will and Emery's
Legal Crisis Strategies blog.

BUSINESS ANNOUNCEMENTS
(aka blatant self-promotion)

Keeping the Wolves at Bay: Media Training

What has 80+ pages of hard-hitting, entertaining and easy-to-read guidance on how to deal with both traditional and online media during times of crisis?  The answer is
Keeping the Wolves at Bay - Media Training.

The, four-color, perfect-bound, 8x10 manual is currently available both in hardcopy ($25) and PDF form ($10). Volume discounts are available; write to Jonathan Bernstein for that information.

Here's a couple of teaser reviews for you:

Jonathan Bernstein's Keeping the Wolves at Bay is an eminently practical guidance for anyone - business leader, celebrity, politician - who must willingly or unwillingly face the glare of media attention. It appears
at a moment in time when the social media and other digital communications have upped the ante exponentially.
Bernstein's practicum on media relations takes on renewed urgency as news, gossip, and opinion now drive
public perception virally and at the speed of light.
 
Richard Levick, Esq.
President & CEO
Levick Strategic Communications, LLC
 
Even if you think you'll never, ever be interviewed by the media, buy this book and read it cover to cover. It isn't a substitute for media training. But it will give you the tools and confidence to go head to head -- and possibly even defang -- rabid reporters, blood-thirsty bloggers and social networking buffoons who are out to besmirch your good name.

Joan Stewart, The Publicity Hound

The book and other products can be found at the
Crisis Manager Bookstore

Want To Blog And Tweet About
Your Organization But Don't Have Time?

Missing out on all the promotional and SEO advantages of doing so? Hire someone to be your voice...like Erik Bernstein, aka "Son of Crisis Manager."

More info:[email protected].

GUEST AUTHORS

GUEST AUTHORS are very welcome to submit material for "Crisis Manager." There is no fee paid, but most guest authors have reported receiving business inquiries as a result of appearing in this publication. Case histories, experience-based lessons, commentary on current news events and editorial opinion are all eligible for consideration. Submission is not a guarantee of acceptance.

ABOUT THE EDITOR & PUBLISHER

Jonathan Bernstein is president of Bernstein Crisis Management, Inc., a national crisis management public relations agency providing 24/7 access to crisis response professionals. The agency engages in the full spectrum of crisis management services: crisis prevention, response, planning & training. He has been in the public relations field since 1982, following five-year stints in both military intelligence and investigative reporting. Write to [email protected].