Home – In an Instant—Strategies for Countering Lurid Litigation Details that Go Viral

In an Instant—Strategies for Countering Lurid Litigation Details that Go Viral

By Erin Carney D’Angelo of DLA Piper


Take your cue from two leading ladies of television—fictional characters Olivia Pope (Scandal, ABC News®) and Liz Garvey (Babylon, SundanceTV™). In a world of instantaneous communication and open access to information, Liv and Liz are masters of crisis management.


The New York Times® recently outlined how electronic court filings (especially in harassment or whistleblower cases) go viral and create a public relations nightmare: “More and more, the first court filings in gender-related suits, often allegations that inspire indignation, are winning wide readerships online before anyone steps foot in a courtroom.” The New York Times (Lawsuits’ Lurid Details Draw an Online Crowd) (Feb. 22 2015)


If anything, that article understates the problem that many companies face in today’s world of instant access. Alan Dershowitz’s lament from the op ed page of the The Wall Street Journal® on January 15 emphasizes the “nightmare” from the perspective of the person falsely accused. Although lawyers (including retired Harvard Law professors like Dershowitz) are great at legal denials, Liv and Liz understand that mere denial is lame.


Indeed, in the 21st century, bare denials sound too much like the next verse of the epic 20th century song, “I did not have sexual relations with that woman—Miss Lewinsky.…” Liz Garvey opens the first episode of Babylon with an important ground rule: “The age of information control is over.” Thus, the basic premise must be that a pro forma denial, standing alone, is never the right answer. Neither is “no comment” or “it is company policy not to comment on ongoing legal proceedings.”


Once upon a time, ducking worked. For professional journalists, stories deprived of new information die like a fire without oxygen. Yet, the 21st century is the generation of the amateur journalists. Silence is no longer the answer: the debate is no longer limited to plaintiff and defendant but now has multiple fronts as the whole world comments via social media and the Internet. Damn bloggers!


Another Olivia Pope fan has been kind enough to summarize the Olivia Pope canon for crisis management. Here are some key points that Liz and Liv can both endorse:

  • Be forthcoming with the facts. Admit to what you don’t know, and own up to what you do know. Honesty is the best policy.
  • Focus on your stakeholders and address their concerns methodically.
  • Resist absolutes. Avoid using words such as always, never, least, most, etc. Don’t let goodwill trump reality: only say publicly what you can defend factually.

Jennifer Connelly, CEO of JCPR Inc., a public relations agency, 5 Crisis Management Tips Olivia Pope Would Endorse(Dec. 14, 2014)


Now, come back to the core problem identified in The New York Times article: viral publication of the complaint’s allegations in a sexual harassment case. What’s the counter message? What’s the strategy?

  • First, the allegations are seldom a surprise. Demand letters and EEO charges typically precede the actual filing. If nobody thought of this, that is a separate problem. Yet, both Liz and Liv specialize in working on the fly. There must be a response TODAY.
  • Second, if the most salacious allegations appear for the first time in the court complaint, and were not in any prior complaint, demand letter or charge, let it be known. “Unfortunately, the plaintiff had not shared all of these allegations with the company before. Be assured that the company will immediately investigate these new allegations.”
  • Third, legal conservatism be damned: go public with whatever will be disclosed anyway. If the allegations were investigated and the harasser punished, say so. If the company has internal complaint procedures in place that weren’t used, say so. Vindicate the company. But don’t overstep – don’t deny when the facts are unknown.
  • Fourth, do not shoot the messenger by castigating the plaintiff for unrelated sins. Don’t bring up the fact that the plaintiff wasn’t cutting it or was recently counseled on performance – it won’t make the company more likable. Likewise, please don’t play the “some of my best friends are …” Here is a one minute clip where Liz Garvey illustrates this in an episode involving handling the police shooting of a black teenager.
  • Fifth, if there is action to take, take it. If somehow no investigation was done (which could explain the position the company is in), start it right away. It is better to say “The company is in the process of investigating the allegations,” than to say nothing at all.
  • Finally, there is value in emphasizing process: e.g., “our policy forbids harassment; our investigation to date discovered no harassment. If this lawsuit provides evidence that has otherwise been unavailable, then appropriate action to enforce the policy will be taken immediately.”

In sum, get out in front of the story as soon as it hits the wire – don’t wait for social media to be the judge and jury.