Experts in crisis communications
Not a lawyer's job.
Photo credit: Scientific American1
One of the bits of practice advice I give my law students is that in their future careers as lawyers in their respective organization, they should make sure they are in the room for strategic discussions. You have to gain the trust of your clients to be invited. The same is true when there is a strategic meeting for an emergency, crisis or disaster situation.
Lawyers are trained to give advice with a substantial background in considering all the things that might go wrong, which is immensely useful. That is not the best skill with which to lead on crisis communication from corporate or government leaders.
When crisis communication expert (and founding lawfirm partner), Joshua Gasper gave this advice, when asked about preparing the university presidents for testifying before Congress, he would be sending the wrong message to clients with this advice:
“I would have told them that, first and foremost, this is theater and not a legal proceeding,” said Joshua Galper, co-founder and partner of the strategic-communications firm Trident DMG and the law firm Galper & Goldberg.2
First, he is talking to his client as if they are lawyers (some may be) and wanted them to understand this was a not a legal proceeding. For someone who is not a lawyer, this may have little or no value, except what one may have seen on a movie about legal proceedings. Second, by telling clients this is “theater”, he undermines any sincerity or true feelings that should come from the speaker, and suggests they are mere actors/actresses there to entertain. Lawyers quite naturally see more value in legal answers and everything else becomes fluff or “theater”, but this is the wrong message. Sincerity and compassion was called for, not a dismissive “theater” performance. Stonewalling, refusing to answer and defensiveness in this hearing about the First Amendment policies of the universities against speech calling for genocide of Jews was the wrong strategy (and the wrong answers). They appeared to be prepared for depositions for a civil liability trial where the objective is not to provide any evidence that can be used against the university. Lawyers are good at that kind of preparation.
That said, it is a difficult job to testify before Congress (I have only done it once, but prepared many other officials for testifying.) So I do not want to be critical of WilmerHale, the law firm who prepared the three university presidents, because we do not know what advice they were given or if the testifiers carried it out in their testimony. We just know it fell flat, was tone deaf and came off as legalistic and unfeeling. Whether they sincerely held those beliefs is another question.
The scientific field of risk communication
Crisis communications is a specific field, within the area of crisis management. Risk communication is the science underlying principles that are used to be effective about communicating risks and emergencies. Explaining comparative risks, immediate or long term risks and what they mean in a practical sense in the context of a crisis emerged as its own field of study in the late 1970s and 1980s. It grew up around the need to communicate the risks of chemical and industrial accidents and contamination sites.
Risk communications specialists train corporations and governments on how to respond to crises. I would be remiss if I did not mention on of my mentors, Dr. Vincent Covello,3 one of the pioneers in risk communication who spent decades training government officials how to communicate risk in crisis situations. (I am sure he must have cringed during this Congressional testimony.)
Principles of risk perception explain such things as the more familiar you are with a risk, the more you underestimate its riskiness. (Driving a car everyday is actually very risky, but we think nothing of it.) Risks that are voluntary are perceived to be less risky than those involuntarily imposed on us. The more exotic and unknown the risk is, like a new infectious and deadly disease, the greater the risk is perceived and may be exaggerated. Using comparative risk statements is helpful in these situations for example how infectious is COVID-19 compared to the common cold? Dr. Fauci never explained.
Public Health Risk Communication — and Perception
The failures of public health risk communication during the COVID-19 pandemic from Jan 2020 to Dec 2022, led to an erosion of public confidence in government and particularly the U.S. Centers for Diseases and Prevention Control.
What I found to be the first mistake was to ignore the statutory roles of the government agencies and the lead on public information. The CDC is the agency that addresses the nation’s public health (except those areas that are in state sovereign areas), yet the spokesperson for CDC was given one appearance and then replaced with the Director of the research institute for infectious diseases, Dr. Fauci. This is an agency that does not communicate with the public and primarily works with universities, research scientists and pharmaceutical companies. CDC provides mask guidance, not NIAID, and CDC provides information flyers to every single location in the U.S. that administers childhood vaccines. They were clearly the right lead for communication in this crisis. The experts were summarily dismissed.
Need I remind you about the high interest in Hollywood for communicating about the pandemic, awarding Governor Cuomo an Emmy award for his series of television conversations about COVID-19. (The award was rescinded the following year for his alleged role in sexual harassment and other crimes, but that is another story.)4 Politicians are typically good communicators, but with a science topic and risk questions you want someone who is trained in communicating to the public on that very topic. So from the start, the wrong person was giving advice about COVID-19 measures.
Not surprisingly, confidence in the government (and CDC) began to erode. In August 2021, Americans polled by Gallup were more likely to find CDC had a plan for dealing with COVID-19.5 Gallup polling found that by Sept. 2021, the confidence in the CDC had fallen more than any other government agency (-24%).6 In that same month, Gallup found that 41% of Americans did not believe CDC had a clear plan for dealing with COVID-19, which was directly related to their messaging and change in guidance about wearing masks.7
Communication about the vaccine was equally poor. Early communications to get the COVID-19 vaccine stressed it would keep you from getting the disease, but later it was evident that it may lessen disease but it may not prevent it at all. At about this time, CDC announced a change in mask guidance, removing the requirement if you were vaccinated you no longer needed to wear a mask.8 Except during this period of vaccinations travelers had to wear a mask on federal transport9 — how did a virus change its infectiousness? A reason might have been that it is not practical to check every traveler on the subway to see if they are vaccinated if they are not wearing a mask. Simply asking everyone to wear a mask is a practical regulatory enforcement design without a large burden on the vaccinated traveler (although there is disagreement on that point). Had the agencies taken the time to explain this rule, it might have avoided further erosion of confidence in the government’s directives.
By Jan 2022, CDC has decided to shorten the isolation and quarantine time, so that people could get back to work faster. But there was no scientific evidence for why they decided this was safe and seemed just an attempt to get people back to work and school with increased risk of infection. Memes making fun of CDC’s lack of consistency were emerging, signaling a collapse of confidence in CDC.10
Photo credit: CDC
A number of obvious risk communication mistakes were made here. Transparency was the number one issue that continued to plague (yes, I gave in to that pun) the pandemic briefings. Not explaining the logic behind wearing a mask that would not filter for viruses? Not explaining the mRNA vaccine mechanism and the risks. Not explaining the underlying logic for changing the mask guidance or the isolation and quarantine guidance. Without a sincere explanation it all looks like random uncertainty or politically or economically motivated decisions. Dr. Fauci excels at advising Presidents on medical research and infectious disease issues but he was thrown into a role for which he had little knowledge.
What role should lawyers have?
In both the university presidents’ testimony preparation and the CDC’s repeated mistakes in communication about COVID-19 prevention and mitigation measures, lawyers should have been in the room during the planning sessions. Lawyers have valuable insights and Lawyers are there to provide scenarios for various courses of action that might lead to legal consequences but they should never design a communication strategy.
In the case of the university presidents, they seem to have been driven by legalistic answers. In the case of Dr. Fauci, I saw little evidence that he was consulting with lawyers and no evidence he was talking to risk communication and perception experts. We need to know when to consult experts.
Final note:
I do have a special interest in this field. I worked in the communications world, first as a Public Information Officer for a large city in Virginia.11 Later, my area of research in my Environmental Sciences PhD program was risk communication and risk perception of chemical emergencies. After that, I served as a Communications Specialist at the U.S. Environmental Protection Agency headquarters in Washington, D.C.. Later, I once taught a course in the lawyers’ role in crisis communication at Texas Tech University School of Law.
Deservedly or not, WilmerHale came out looking less than admirable in the Congressional testimony about campus free speech policies. CDC and NIAID and the spokesperson, Dr. Fauci, have had demonstrable drops in public confidence shown in the Gallup polling. But I think it is safe to say that we would all benefit to have every law school teach lawyers what role they should play in crisis situations, even in one lecture!
https://www.scientificamerican.com/article/scientists-reflect-on-anthony-faucis-impact/
https://news.bloomberglaw.com/us-law-week/college-presidents-at-hearing-should-have-spoken-from-the-heart
https://centerforriskcommunication.org/
https://www.latimes.com/entertainment-arts/business/story/2021-08-24/now-that-gov-andrew-cuomo-has-resigned-what-happens-to-his-emmy
https://news.gallup.com/poll/353204/cdc-communication-ratings-mixed-throughout-pandemic.aspx
https://news.gallup.com/poll/355130/job-ratings-key-federal-agencies-decline.aspx
https://news.gallup.com/poll/354566/americans-ratings-cdc-communication-turn-negative.aspx
https://www.nbcnews.com/health/health-news/cdc-plans-drop-mask-requirements-fully-vaccinated-people-n1267249
https://www.federalregister.gov/documents/2021/02/03/2021-02340/requirement-for-persons-to-wear-masks-while-on-conveyances-and-at-transportation-hubs
https://www.forbes.com/sites/brucelee/2022/01/01/cdc-says-jokes-trend-after-new-covid-19-isolation-quarantine-guideline-changes/?sh=19f63b4e1ead
https://en.wikipedia.org/wiki/Chesapeake,_Virginia