For the first time in modern history, the global population is united in a very unique way – everyone, everywhere is dealing with COVID-19 and its effects and virtually no one has been spared from having their life dramatically changed. We are all living through a shared crisis, where people are scared about their health and the economy, and there is no sign of it ending soon. As fear increases, anger does too, and when the public is mad and looking for someone to blame for their current situation, they often turn to litigation.

Numerous lawsuits have already been filed against cruise lines, airlines, banks, retailers, insurers, hospitals, schools, sports and entertainment venues, television networks, and employers in general dealing with workplace protections, price gouging, misrepresentations, failure to refund, wrongful terminations, breach of contract, bad faith, and many, many others, and it is anticipated that many more will continue to be filed as the COVID-19 outbreak continues. 

As individuals, businesses, and corporations all deal with this health and economic crisis and its impending litigation, there are three key crisis communication strategies and protocols that are important to keep in mind in positioning you and your clients in litigation. 

1.     Identify your audience and your goal.

It is not enough to simply communicate about what you think is important – you need to figure out exactly what your audiences need to hear in these times. The customers of a cruise line might need information on postponed vacations, reimbursements, or assurances that proper safety procedures are being followed. Shareholders and stakeholders in the cruise line may need reassurances about the financial threat that current or potential lawsuits pose to the financial health of the business. The C-Suite leaders will need to reassure worried employees about their safety and job security. And, of course, the cruise line will need to send messages to the general public about the safety of cruises to rehabilitate wary consumers who will be reluctant to book a cruise. For counsel, they need to develop and reinforce key message positions that will ultimately be used in litigation. 

All of these audiences need specific, individualized communications. Before you begin writing your message, you should identify exactly who your message is for and what that group’s specific concerns are that you can address in your message.

2.     Craft a message that identifies your audience’s concerns, honestly acknowledges the situation, and expresses a narrative and emotion that captures those concerns.

Your audiences do not want to hear platitudes or generic statements about difficulties – you need to see the world through their eyes and understand their struggles, fears, and concerns. 

Historically, most companies stay silent and wait until a crisis arises or a lawsuit is filed before considering how to respond. By being proactive, you can seize control of the story you want to tell for your clients and frame the discussion around your message and ideas.

Already, in response to the COVID-19 outbreak, we see savvy plaintiff attorneys strategically capitalizing on this idea. Here’s a recent quote from Mark Lanier of the Lanier Law Firm in discussing a class action lawsuit he has just filed against insurance companies in response to their preliminary handling of COVID-19 claims:

“As our nation emerges from this horrific pandemic, businesses of all sizes will be critical to restarting the economy. In playing their usual claim-denial games, these insurers are threatening the welfare of not only small-business owners and their families, but the entire US economy.” 

This message creates a narrative that tap directly into the fears and worries of the intended audience – legislators, judges, and the public from which potential jurors in the upcoming litigation will be selected. In two sentences (which were widely reported on), the frame is set: insurance companies play a “usual claims-denial game,” are a threat to “small-business owners and their families,” and the entire economy. Mark Lanier has zeroed in on key concerns in his audience – the fear that expensive piece of mind coverage that we all pay for will not come through when we need it most, the more specific worry that COVID-19 will put us and our loved ones into serious financial jeopardy, underpinning the familiar trope of the uncaring insurance industry. Legislators in numerous states seem to be receptive to these arguments and are introducing bills to revise coverage definitions. 

The insurance companies have stayed mostly silent, unwilling to comment on pending litigation. From what we know about crisis communication, it is possible to create positive, proactive messages that communicate empathy and an understanding for what their customers are going through, while also clearly stating the limitations of insurance coverages in the policy. When the public’s internal fears are stoked, they look to the accused insurers to allay those fears. When they hear silence or cold recitations of policy exclusions, the plaintiff attorney’s message is reinforced and gains credibility. Insurance companies can express compassion for their policyholders without compromising their policy interpretations or litigation defenses.

3.     Explain the concrete steps you are taking to address the concerns of your audience.

Finally, a strong crisis communication message entails concrete actions that you or your clients are taking. For companies you represent, this means describing how their services and products can help their customers by reducing their stress during these difficult times. With employees, it means sharing plans for keeping the company afloat and retaining workers. If you are a company dealing with an employment class action over unsafe working conditions, discuss the measures the company has taken to ensure worker safety. 

If you have bad news for your audience, be up front about it – do not sugarcoat it or try to hide it. Give people real information that reflects your honest assessment of the situation, your intentions, and your plans.

We were recently contacted by a few different law firms to help them deliver messages to their client base about COVID-19 that went beyond assurances that the firm was following safe and sanitary practices. We worked with them to develop messages that not only reassured their clients of the firms’ various safety measures but positioned them as the resource that their clients most needed in dealing with this crisis. First, we identified their client base and reframed the goal of positioning them as leaders during a crisis. Next, we had them acknowledge the difficulties their clients were facing. Finally, these firms discussed the various resources, webinars, and task forces they had put in place, with regular updates and alert bulletins, to assist their clients. Finally, they concluded by offering new services designed to address their clients’ needs and recommended solutions for healthcare, employment, product manufacturing, retail, and financial clients that would be impacted by COVID-19.

Remember, we are all in this together. Many of us are dealing with the same or similar challenges and anxieties. By being proactive, identifying your clients’ goals and needs, creating an effective narrative, and providing concrete actions, steps, and solutions to the identified problems, you will increase the chance of your message hitting home.


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Jonathan Ross earned his degree in Psychology from Pomona College in Claremont, CA, where he focused on Social Psychology and Research Methods and Design. Jonathan has worked on numerous trials across the country, including the trials of Phillip Spector, Casey Anthony, Kwame Kilpatrick, and Azamat Tazhayakov, and has also worked on many multi-million dollar civil matters.

Jonathan has been with Decision Analysis for over ten years, and has considerable experience working in personal injury, intellectual property, bad faith, employment, and product liability litigation. Mr. Ross specializes in focus group and mock trial research, jury questionnaire design, opening and closing statement construction, jury selection, and social media and internet-based research.