The Farmer and the Cowman

May 22, 2024

Chris Gidez is founding partner of G7 Reputation Advisory and of counsel to Kith, a strategic crisis communications firm.

(If you want to understand the headline, read to the end!)

I recall doing some work with a client a few years back; an oil company involved in a spill in the Gulf of Mexico.? The matter led to a tangle of litigation, and in this instance there was a court hearing in one of the actions.? As hearings go it was expected to be routine, and I was not in attendance.? I learned about it through a subsequent press report.? The lawyer for the company made a point to the court that there was no proof that the oil that was floating on the surface of the Gulf was even from my client’s oil well, even though the circumstances around the spill were well established and not in dispute.

That was a perfectly sound legal argument; it had not been established as part of the record in the court.? But as it was reported in the press the company came across as one in denial of the obvious.? Both the client and his attorney were dismayed and frustrated with how this played out in the press, and the client lost precious goodwill.? But the media reaction was so clearly predictable.

Fast forward to this week’s headlines, in which American Airlines is being taken to the woodshed over a filing made by outside attorneys in response to a civil lawsuit brought against the airline by the parents of a nine year old girl who was secretly videotaped in the lavatory on a flight from Texas to California.? The phone camera was allegedly planted by a flight attendant who was subsequently arrested.

As I often say, companies are not judged for the crisis, but for how they handle the crisis.

In this instance, as part of its defense, outside counsel on behalf of the airline (or its insurer, it is not entirely clear) submitted a filing to the court asserting that any harm to the young girl was “... proximately caused by Plaintiff’s own fault and negligence, were proximately caused by Plaintiff’s use of the compromised lavatory, which she knew or should have known contained a visible and illuminated recording device.”

Blaming the victim.? Not a good look.

Cue the media and social media firestorm.

And while the airline did not explicitly apologize for the filing, it did say it would amend its defense:? “Our outside legal counsel retained with our insurance company made an error in this filing. The included defense is not representative of our airline and we have directed it be amended this morning. We do not believe this child is at fault and we take the allegations involving a former team member very seriously. Our core mission is to care for people — and the foundation of that is the safety and security of our customers and team.”

This is not entirely dissimilar to a situation involving Boeing several years back, as the company defended itself before a federal court in a lawsuit brought by the families of victims of the 2019 crash of an Ethiopian Airlines Boeing 737 Max jetliner.? The families were seeking damages, including damages for the pain and suffering of the passengers prior to the plane’s crashing.? Boeing argued in court that the families should not be awarded damages for “pre-impact fright and terror.”? One Boeing expert testified, “While passengers undoubtedly perceived the flight as scary, humans have a tendency to hold on to hope and not expect the worst. Ultimately, it is impossible to know the subjective experience of each occupant.”? In other words, the company asserted that while the victims’ families should be compensated for the deaths, they should not be compensated for the victims’ fears of knowing they were about to die.

Ouch.? As one news report put it, “Boeing Argues That 737 MAX Crash Victims Didn’t Suffer.”

Another saying I am fond of:? “One person’s smart legal defense is another’s PR nightmare.”

So, what happened?

That’s a question for American Airlines.??

But I think this is one of those “There but for the grace of God” moments that many corporate communications leaders and advisors have found themselves in:? where there is a disconnect between those responsible for managing a company’s legal risk and those in charge of reputation.

I get it:? the lawyers’ job is protecting the company’s legal exposures.? And just as plaintiffs’ attorneys make a habit of suing everybody in a given situation, so too the corporate lawyers will explore every possible defense in their efforts to protect the company.

But lawyers can sometimes be guilty of wearing blinders.? They see the world through the prism of the law, but sometimes fail to appreciate that a particular argument presented to the court, while brilliant in a legal sense, might come across as tone-deaf in the public domain.

Which brings me to the Farmer and the Cowman.

For those of you familiar with Oklahoma, the classic Rodgers and Hammerstein musical, one of the great songs is “The Farmer and the Cowman.” ? The lesson in the song is that while farmers and ranchers might have different vocations, in fact they have much in common and should rely on each other.

Same is true for attorneys and communications counselors.? Just as the PR team depends on the legal team for guidance so we don’t inadvertently step in it, so too the legal team should partner with the PR team in stress-testing any legal matters that might catch the attention of the media and the public.??

A really good communications counselor will have a nose for bad weather, and can judge which legal matters many warrant some extra attention to ensure that the lawyers avoid stepping on those nasty cow chips, whether that means reviewing a legal filing in advance to spot any passages that might catch the media’s attention, or examining specific legal strategies or tactics and planning ahead to manage any potential fallout.

As the song goes, “Territory folks should stick together, Territory folks should all be pals.”

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