How to Communicate Empathy Without Risking Litigation
Crisis is inevitable. Even after due diligence is done and preventative measures are taken, the complexity of today’s interconnected world means that every business will eventually come face-to-face with misfortune, given enough time. When that day comes to your business, how your business responds will serve as the measure of its worth in the public eye. To ‘play it safe’ by minimizing or denying the crisis can permanently mar the standing of your business with its stakeholders, while an uncalculated show of empathy could expose it to unfriendly legal action. That’s why finding a way to both relate with the public and shield your company from litigation is a delicate task, and certainly not one to be left for your day of need.
Fortunately, however, there are tried and true guidelines and principles which your business can follow to convey sincere solidarity without legal risks. While the lines between empathy, apology, and liability are often fine, legally speaking, gaining an understanding of those lines will empower you to make confident and informed decisions when adversity comes. To that purpose, the discussion below will aid in clarifying the pitfalls of communicating empathy while exploring those guidelines and principles which can help you to avoid them.
What Shouldn’t You Say?
The primary concern held by businesses and their lawyers regarding crisis communication is that demonstrating empathy becomes an apology, which in turn becomes a liability. This is indeed a valid concern, as making mea culpa statements—intentionally or otherwise—can have far-reaching legal ramifications. For this reason, your business must be careful never to communicate in a way which would render it culpable in a court of law, nor communicate at all without a thorough understanding of the relevant jurisdiction.
Knowing precisely which jurisdiction is relevant should serve as the first step in crisis communication. Here you must ask: should my business be sued in court, which court would it be? Evidence-admission in federal courts are governed by the Federal Rules of Evidence, which dictate that statements made by any representatives on behalf of the sued organization are admissible as evidence. If a potential suit would fall to the federal court, therefore, no statement which could be used against the business must be made. A majority of state courts are based on this same federal rulebook, and in many state-level jurisdictions an admission of guilt remains ill advised.
There are, however, 27 states which have implemented “I’m Sorry” laws—laws which protect mortification statements, or apologies, from admission in state courts. Here it is imperative to research and understand the local jurisdiction, as the nature and extent of these “I’m Sorry” laws vary significantly from state to state. A significant portion of these states still allow direct admissions of fault into evidence, meaning that public relations messages should be subject to some limitations. In Texas, for instance, expressions of sympathy may not be used against you in court, while admissions of guilt may. Other factors, like to whom the statement is directed, may also affect admissibility. Knowing which jurisdiction concerns your company and the rules of evidence which govern it is of the utmost importance.
What Should You Say?
Once you understand the legal contours within which your business operates, effective crisis communication entails conveying empathy while staying within those bounds. In practice, this takes three general forms. In the first scenario, your business is concerned about being sued in a court where no “I’m Sorry” law is in place, such as a federal court. In this case, any statement made by your business can be used against it in court, and only very limited statements of sympathy are advised, if any. While this may be very uncomfortable from a public relations perspective, it is nonetheless a legal reality.
The second and third scenarios allow more protection, and thus more leeway. If your business is concerned about being sued in a court with an “I’m Sorry” law in place, your communications will likely fall under one of these two remaining categories: only statements of sympathy are protected, or both statements of sympathy and admissions of guilt are protected. In the former scenario, which is the case in Texas, a statement like, “We offer our sincerest condolences to X victim,” will be inadmissible in court, while an apology would still jeopardize the business. In the latter, your company may offer a statement along the lines of, “We offer our sincerest condolences to X victim, and accept full responsibility for the part we played in Y event,” without concern that the statement could later be weaponized against you. Remember, however, that rules of evidence are complex, and due diligence must be done on the part of your lawyers before any statement is made.
Bottom Line
When crisis arrives, it is often easy to lose clarity and focus amid the conflict of legal precaution and public opinion. Yet, as every businessperson knows, those are precisely the times in which thoughtfulness, care, and precision are most vital. Gaining an understanding of the relevant court rules and developing a robust framework for future crisis communications is, therefore, an invaluable and necessary step for ensuring the safety of your business. Then, when misfortune strikes and the ground feels unsteady, you will know precisely where to tread.
The contents of this blog do not constitute legal advice, and are intended for informational purposes only.
While we may employ generative artificial intelligence for research purposes, all content published by Razor Sharp Public Relations is written directly by our team.