The Litigation Psychology Podcast - Episode 5

COVID-19 Communications

CSI - Courtroom Sciences Inc

The Litigation Psychology Podcast, presented by Courtroom Sciences, Inc. (CSI) presents a special episode dedicated to crisis communications. In this episode we highlight the mistakes and missteps that businesses are making when communicating with customers, employees, and their communities about COVID-19. Dr. Bill Kanasky, CSI Litigation Consultant, is joined by Sean Murphy, head of the CSI Crisis and Litigation Communications team. Sean and Bill discuss how corporations are mismanaging their communications, the legal exposure they are creating for themselves - including potential reptile attacks - and how businesses should approach communicating with key stakeholders during a crisis situation. 


PODCAST SUMMARY:

Dr. Bill Kanasky

Welcome to another edition of The Litigation Psychology Podcast. This is Dr. Bill Kanasky and this podcast is brought to you by Courtroom Sciences. And today's podcast is actually more of a special edition addressing the coronavirus issue, more specifically addressing the issue of corporate communication with both their employees and their clients. I don't think I'm the only one, but I've been bombarded with emails from every hotel chain, every airline, a ton of law firms. And the language in these emails is very interesting and this has now gone on to TV. You see a lot of commercials with corporate people sending their messaging to their clients, mostly trying to calm them down. But again, the language in some of these messages I think is very interesting and maybe leaving clients vulnerable and they don't even know it. So today's guest is Mr. Sean Murphy. Sean works with me at Courtroom Sciences. He heads up our crisis communication division at Courtroom Sciences and he's got some interesting input on this topic. Sean, are you there?

Sean Murphy

Hi Bill. Thank you for having me on. I appreciate it.

Dr. Bill Kanasky

Well, I wish it was under better terms. But as you heard in the introduction, corporations are really doing everything they can to get the message out. I'm pretty sure you've been bombarded with a lot of these emails and have seen the commercials, and let’s not get specific, but what is your general reaction to some of the messages that you're hearing from corporate America?

Sean Murphy

Oh, sure. I think first of all we have to give people some credit because this really is a once in a century kind of an event. And so you can expect that people might struggle to find their voice in communicating about it. And so at least initially you saw, like you said, literally hundreds of emails come in from companies and this primary message that health and safety of their customers and their employees was their top priority. And we were looking at those and thinking this really could be problematic in the future because you know, obviously at the beginning of a crisis like this, people are trying to convey a sense of caring and obviously very authentic in this case. But in their zeal to do that, did they go overboard? Are they making commitments that frankly they shouldn't be making and they're not equipped to make?

Dr. Bill Kanasky

Yeah, I haven't been shocked by the language, but it appears that none of these messages went through the legal department. Perhaps they only went through the marketing and, or PR departments, but yeah, every single one of these messages; well, they all look like a carbon copy of each other at this point. But I think the first sentence, if not the second, it goes right into this, you know, your safety is our top priority. Your health is our top priority. And it makes you wonder if the reptile plaintiff attorneys are just salivating over these messages for future litigation.

Sean Murphy

I think that's the issue. I think there's a problem that you're making a commitment and your conduct is going to be held to that standard. And you know, there are two aspects about it really. One is, is it effective communications or does it just start to sound like something redundant that someone else said? So, you know, we get these messages, we're getting them from banks, we're getting them from cell phone companies, getting them from hotels and airlines as you said, but is it really even the right message? Is it really what people want or need to hear? You know, if we're all in some sort of state of lockdown, I want to know from my bank, what's the access to my money, or maybe I've had a refinance in process for my home, what's going to happen with that? These are the questions that customers have and there's really no need for this hyperbole at the top of ensuring people's health and safety particularly if that's not your business.

Dr. Bill Kanasky

Yeah. And you know, we deal with this with plaintiff’s bar with the reptile tactics. And I think a lot of these messages are certainly going to be used against these companies for using that language and probably using it repeatedly as this crisis develops. I've noticed now getting, you know, wave after wave of these emails and then seeing upgraded versions of these commercials with all of the messaging and yeah, I think this whole ‘safety is the top priority’ thing is probably instinctually what these companies want to say. But the fact of the matter is, and what we do in our witness training program to train witnesses to go up against reptile plaintiff attorneys, is that safety has never been the top priority of any company, even a hospital.

Dr. Bill Kanasky

It's something that I think the marketing departments have certainly come up with. It makes the legal people nuts, but on some of these cases I work on, particularly with internal documents and employee handbooks, policies and procedures, they've plastered this ‘safety first’ message – even before coronavirus - this ‘safety first’ message all over their internal training documents especially. And then all you have to do is look at any billboard on your local highway from the local hospital system and they have it plastered all over their billboards and all over the side of their buildings. As you see some of this messaging come out, what do you think is more, maybe not just a more useful type of message, and not to use the word safety, but I guess a safer message from a litigation standpoint?

Sean Murphy

It's as simple as telling people that you want to update them on what you're doing in response to the novel coronavirus crisis. And that's what people really want. They want straightforward information that is credible where they can understand how it affects them. And so that's what people are really looking for. And the act itself of communicating that information is caring. So there really isn't a lot of need to lead with that because you actually are showing care by sharing the information people need with them. And that's really a critical point. You don't have to beat people over the head with that message when your conduct itself is supporting that.

Dr. Bill Kanasky

That's a really good point. And some of these messages I've seen typically in an email, and actually it's all over LinkedIn, they're posting on LinkedIn, posting it online, do you see this continuing or do you think corporate America's gonna figure this out? Maybe a month down the road that, you know, Hey, maybe some of these messages we sent at the start, maybe they weren't such a good idea?

Sean Murphy

Well, you already see litigation starting. Today in the Wall Street Journal, you see, and these aren't directly related, but it's about the arc of a crisis. And so in the beginning, people kind of feel this sense of unity. People want to communicate; they want to make sure that they're doing the right things. And then you start to see people more soberly reacting to the crisis. So in today's Wall Street Journal, for example, you see that there are students suing the universities because the online experience is not what they paid for. And so you're already starting to see that people are beginning to evaluate the effect of this crisis on them and the promises that have been made to them and starting to take action.

Sean Murphy

So, in this middle phase where people are still kind of confused and they still don't know how long this is going to endure, and exactly what's going to happen next. They really should be planning so they don't make the same mistake again. And so, scenario planning in these particular instances is critical because they need to think through the what if's. You know, what if it's a kind of a partial restart, what does that look like and how do I get my company geared up again? How do I act in a way that makes people productive but also follows the guidelines that are going to be issued? And so those are the kinds of things that people can do in practicality right now, that will help them think through and frankly be more sober and the commitments that they make when things start to transition back to some form of normal.

Dr. Bill Kanasky

Yeah. And I'm not gonna mention any names of corporations, but some of these emails I get, especially on LinkedIn, I've seen some language that went beyond the whole ‘safety and health is our top priority’ to using words like ‘ensuring your safety’ or ‘guaranteeing your safety and health’. Or ‘we're going to do everything we can to ensure safety and health’. I'm assuming, given your expertise, you'd probably advise clients to not use such extreme, I mean, safety and health are bad enough, but you start using words like ‘ensure’ and ‘guarantee’ and everything. I think those are kind of the worst of the worst, right?

Sean Murphy

Well, I think that people use that kind of language at their own peril. The opportunity really for them is to distinguish themselves and show some leadership by sharing information that's useful. And this kind of hyperbole, it doesn't always have the effect that people think that it does because it's not information. It's positioning. And so this really is an opportunity to stand out by having a lot of clarity in your communications about what it is you're actually doing and what it is you're planning to do. And, as part of that, you can reiterate your commitment to following guidelines. You can talk about the responsible actions you're taking in terms of listening to the authorities on this matter. These are the kinds these are the ways that you can weave that into your communication. But as I said before, they very act of act of communicating itself demonstrates caring.

Dr. Bill Kanasky

Totally agree. I want to talk a little bit about the role of emotion in messaging. Many of the challenges I have professionally are dealing with emotional witnesses that end up going into a fight or flight response pattern. We call this amygdala hijack in psychology and we've published papers on it and we do webinars on it. And we have a training system to prevent witnesses from responding emotionally because inevitably something harmful is going to come out of their mouth. How much do you think, in your experience, that some of these faulty messages are due to corporate executives panicking and becoming emotional? Because some of these messages aren't even logical.

Sean Murphy

Well, there's two parts of that. One is that you're talking about a lot of consumer product marketing companies who are providing a service. And they are the ones who are sending out all these pretty aggressive communications and they're accustomed to communicating using emotion. They want people to act as they're trying to trigger people and get them to associate with their brand or product. So first of all, it's kind of a habit for them to try to emotionally connect people, right? But here you have a crisis. So then the question becomes how do I emotionally connect with people appropriately in this kind of situation? But the second thing is that it's unprecedented. And so I think you do see leaders who are struggling to find their voice.

Sean Murphy

How do you reassure people without going too far, when you don't even know yourself, what the future really holds. When things are unclear, how can you have clarity? And so that's why it's really important for them to talk about what they actually know and what they actually can quantify right now, but then didn't prepare it to plan for the various different things that could occur so that they know more soberly what they might say or when it does occur. And they don't have to have this kind of emotional reaction. They are in control of delivering the information. So it becomes a matter of speaking clearly and factually and in this type of a crisis that forms its own kind of connection because that's what people need most: credible information and from sources that they can rely on. And that's really the message that needs to get through to these companies.

Dr. Bill Kanasky

Now Sean, we all know that you cannot unring a bell. You can't put toothpaste back in a tube. However if some of these companies want to wake up, calm down, and become more logical and effective in their messaging, how do you undo the first wave if a company did come out with more of an emotional message and maybe said some things are guaranteed, some things that they shouldn't have; is it possible to make adjustments going forward and not look hypocritical?

Sean Murphy

Well, it's important too because I think when you look at this kind of a situation, it's what did I do once I knew; once I figured it out, then what actions did I take? And so, I don't know that people will get a pass for that first wave, but they may be more likely to get a pass for the first wave if the communications going forward adopted a different tone. Now that different tone is simply we want to update you. What it is that we're doing in response to this crisis. And then, listing out that information and being sure to be very clear and factual about it. So it's really just dropping it to the most critical and then being very responsible and the information that you're sharing, being sure that it's accurate and you can do things that help people, provide them with links to other credible resources that give good guidelines on how to protect health and safety.

Sean Murphy

This isn't the issue. The issue isn't demonstrating caring. The issue isn't helping people understand how they can be, stay healthy or be safer. It's not being responsible for it, not making yourself the party who is assuming responsibility for it. It's sharing useful information. And there's a big difference there. I mean, some people may think it's a nuance, but I think they'll find out it's a critical difference if they're being held to the standard of, well, you said that this was your top priority, so therefore you did take responsibility.

Dr. Bill Kanasky

Yeah. And Sean, I don't have a crystal ball, but I see this problem getting worse before it gets better. And here's why. I remember back, I don't know if you're aware of this but well before coronavirus, at least a decade ago, particularly when healthcare started to become such a competitive bloodbath, part of the marketing to the general public was, ‘Hey, come to our hospital because we're the safest’. ‘We put patient safety first’ and that's been a huge part of the healthcare marketing plan, which the plaintiff bar has totally taken advantage of. Particularly when they're hitting ‘print screen’ on the hospital website and bringing that to a deposition to stick in front of the corporate rep’s face.

Dr. Bill Kanasky

When the country starts to reopen, for example, you don't think Hilton and Marriott are going to go at it? I mean, just blow for blow on corporate messaging trying to get people back in their hotels. How I think they're going to go right to this health and just like the hospitals did. I think the hotel chains are going to, and same thing with airlines, you know, fly our airline cause we're the healthiest, we’re the safest, come to our hotel. We're the healthiest and the safest. So I see as this coronavirus problem starts to dissipate and we start getting back to, well it's going to be a new normal, but relatively speaking back to normal. Do you see some of these competitors trying to outduel each other with their marketing plan and maybe stepping on a landmine by doing that?

Sean Murphy

Well, they're going to have to ask themselves, what do you have that backs that up? You know, the key questions around that kind of marketing would be how do you support a claim like that? Even in the short term, if you're in the hotel business, there's all this talk now in hotels and office buildings about deep cleanings. Well how frequently do you have to do that in order to be the safest or the healthiest? So these are the kinds of questions, the honest questions, they are going to have to ask themselves. And there's another way to do it. That's helping people understand how to act responsibly as the situation evolves. Helping people with that. You see a lot of companies trying to link their products to messages like safety.

Sean Murphy

Well how about, and you see it even with cell phone providers, how about the entertainment value of your phone when you're in lockdown? Why not talk about things like that too? Cause right now people, they're looking for reliable information, but they're also looking for ways to spend their time productively. And as we move out of this, then they want information about how can I act most responsibly and who can I trust to be doing business with that also is going to be acting responsibly. And what are the sources of information that establish those standards and what are the credible sources of information? So, companies, again, they're going to have to be very careful not to take that bait because they're going to have to substantiate it.

Dr. Bill Kanasky

Yeah. And let's be quite clear. Hotel rooms are disgusting. They always have been; public transportation, disgusting, the inside of a cab. I do see this problem getting worse before it gets better, unfortunately. And I do think that leads to probably more litigation in the future. What consultation generally do you have with the messaging; we're talking about messaging to clients and the general public. What's the difference between that external communication and maybe what you want to communicate to your employees internally?

Sean Murphy

Right. So with employees, their lives have been upended by this and companies are asking them to take extraordinary sacrifices or they've taken a big hit. So, you see a lot of employers either asking for pay cuts or insisting upon pay cuts, furloughing people, laying people off and some instances shuttering whole chains and things like that and flat out firing people. And so, the communications, the first set of communications really had to be as straightforward as possible in terms of why the company was taking these actions and messaging really needed to be about the long-term viability of the organization and trying to ensure that so that people would have jobs to come back to as the economy rebounded or a company to come back to. Now we're entering a different phase. And so, there was a lot of hurry in terms of getting out the door and maybe the shutdown procedures were not quite as smooth as people would have hoped.

Sean Murphy

And so, you need to therefore make sure that how you turn things back on and there's a lot more orderly. And the things that you need to be communicating with employees or preparing to communicate again is around these scenarios. You know, what are the ways in which we may be returning to some sort of normal? What's that going to look like? And then in those scenarios, what would I communicate to my employees and what are the expectations in terms of our conduct and theirs? So that as we come out of this, we're all acting as responsibly as we can, given the guidance that we're being given from the government and the health experts. And so, you're reading today about what's happening in China and how they're starting to allow employees to come on site. So companies need to be studying that and seeing what it is they're saying, those companies are saying and doing, and what kinds of scenarios actually starting to pop up and making those kinds of preparations.

Sean Murphy

But really what everyone agrees to is this, that normal is not going to look the same for some period of time. So the critical part of the communications is, what do you expect of people as you begin to turn things back on, what needs to change in terms of their behavior? What does social distancing mean in an office if you're allowed to return? What kinds of standards and conduct are you setting for people as things start to return? So that's the kind of planning that should be done, be done now.

Dr. Bill Kanasky

Well, yeah, cause I think employment litigation is going to be through the roof. I mean you could have a lot of pissed off people out there, Sean. And the way that messaging is handled internally needs to be handled with care.

Sean Murphy

That's true. And I think that what you're seeing is leaders who are being tested and the old adage about how, you know, crisis reveals character. And so, employees have learned a lot about leadership of their companies and how they react and respond in crisis. It's been so pervasive, and they'll compare, obviously they know what's happened to their families and friends. And so how are these things handled and what kinds of information were people give in and how are people treated during this first process. And then, the only way to compensate for that, for those that handled as well as it could have been is how you move in the next phase. And so that's why  companies, to be fair, who weren't prepared for this kind of thing, had to react and respond and therefore may have made mistakes. But right now they have plenty of time to plan and prepare. So if they're not using this time for that good purpose, then it will be a problem for them because they're going to need to reconnect with their employees who certainly feel, from one degree to another, a certain level of disconnection because of what's occurred.

Dr. Bill Kanasky

That's a really good point. To finish up here and kind of wrap up, tell us, being a crisis communication consultant what types of services do you offer and what are the typical ways clients get a hold of you? And, what are some of the things that you think that you're most effective at and can really help corporations with some of these issues?

Sean Murphy

Right, particularly in this kind of situation. Well, in the first phase of this crisis, we were helping companies with those very communications to customers and employees and helping them, first of all, avoid the reptile trap of over promising and making health and safety their top priority. But you know, we saw a lot of other things too; people poised to make other kinds of mistakes in terms of how they were communicating. So we were able to help them clarify those communications and really give people useful information. And then by doing so, help them maintain a connection with their important stakeholders. Now this is the phase where we typically work with companies to do is that varied scenario planning, planning what is likely to happen in terms of things turning back on and how do we prepare to communicate that to the employees who we will need to rely on.

Sean Murphy

And we want to come back and to be very productive and to be feeling good about the company. What are those scenarios; we think them through with clients. Write them down, then prepare the materials to communicate that so that they're ready to go this time and they're not reacting and responding. And pretty much every scenario can be thought through. All we need to do is keep monitoring what healthcare authorities are saying and look at countries that are beginning to return to productivity, how they're planning it and follow along and just be ready to do that. The second thing is help bolstering leadership. As I said, a lot of leaders have struggled to find their voice in this process because it is a once in a lifetime event. They’ve being tested. And so it's really working with leaders to help refine their message and the way that they deliver it so that they distinguish themselves.

Sean Murphy

The irony of a crisis is that if you handle it well, people perceive that you had their interests in mind and that you really did work very hard to share that useful information and that you were trying to do the right thing at all times. Then you tend to burnish your image. And obviously the reverse is true; if a company is not taking care to really communicate with its important stakeholders, information that is useful to them; for them to understand what the impacts of the company's decisions are on them. Then they will suffer. Maybe not immediately, but say down the line. The future of employees feeling disenfranchised and as their options start to appear after this crisis, how loyal will they be to companies that maybe they didn't feel the companies who were loyal to them.

Dr. Bill Kanasky

Alright, last question. So we were talking mostly on this podcast about the messaging and correspondence from corporations, both internally and externally. What happens and what do you suggest when there is an actual crisis.

Dr. Bill Kanasky

Meaning, I was reading the other day, I know that 3M has been in some hot water, being accused of selling masks to places that they shouldn't be. I think there's another article I read that some different mask company was accused of jacking up their prices. So, what do you suggest corporations do when something bad does happen and maybe a certain company or entity is accused of doing something inappropriate, particularly in this type of crisis, what are some of the main things they need to be thinking about before they respond publicly?

Sean Murphy

Well, they need to get on the record to exactly what the truth of the situation is, if what's being said is wrong because, obviously, that can leave a very, very deep impression, if you're seen to be profiteering off of a crisis. And so first of all, they need to be careful in their conduct that they're not doing that. Secondly, if they're wrongfully accused of doing it, they need to clarify that record immediately. If there is an explanation for what's going on, maybe materials costs have gone up, whatever it may be, they need to help people understand what's going on. Cause here's what you're really seeing that’s successful in terms of what companies are communicating in this crisis is the more altruistic things that they are doing in order to help. And so that message is playing very well because people feel that something can be done and that maybe they're part of it because they're part of the organization that is doing things. So, on the positive side, we talked about hotels, but a lot of them have donated their food pantries and done things like that. And so these are the messages that are really resonating in a positive way and the actions that matter.

Dr. Bill Kanasky

Well, that's excellent. Great stuff. Well, Sean, thank you so much for being on the podcast. Don't be shocked if we're doing a part two of this in the very near future.

Sean Murphy

My pleasure and thank you for having me on Bill. I look forward to talking with you again.

Dr. Bill Kanasky

No problem. Thank you to our audience members. This is the conclusion of this special edition of The Litigation Psychology Podcast brought to you by Courtroom Sciences. If you need crisis communication consultation, Sean Murphy can be found at smurphy@courtroomsciences.com. Feel free to reach out.

Dr. Bill Kanasky

I'm at bkanasky@courtroomsciences.com if litigation issues arise. Thank you everybody and we will see you next time.