United Airlines Passenger Crisis

Chrysta Castañeda recently appeared on WFTL 850  discussing the passenger who was forcibly removed from United Airlines. Below is an excerpt from the full interview.

Q. The CEO of United has now claimed full responsibility for what happened on the flight. Reversing the company’s initial response response.

Yes, he has finally woken up to the need to go with a different message than they originally went with.

Q.Well their stock is plummeting, what would you tell United to do about this situation, what they’re doing today?

Unfortunately this is the move they should have made initially, someone should have realized that there was likely to be video, and there needed to be a response to this particular situation that was different than, “We’re sorry we had to re-accommodate this passenger.”

Q. Re-accommodate? What does that mean?

I guess it means drag somebody off the plane, which is kind of an insulting word to use in the context of what was actually happening on this particular flight.

Q.Yes but according to TMZ, Dr. David Dao was indicted and convicted in 2005 on 98 Felony drug counts, illegally prescribing and trafficking pain killers, he has his license back now and everything, but he was trafficking drugs for sex.

Well this is a very interesting turn, but how does that really impact the decision United made to force someone off the plane. If those criminal allegations were true would the situation really be any different? I understand we think this guy may be a bad guy; I haven’t seen indication that he was displaying bad behavior on the plane, but even so from a PR perspective, that’s not something you’re going to know when you’re making the decision to treat a passenger this way.

Q. So what are the rules? I believe that United was well within their rights to ask people to get off the plane, but they should have maybe upped the compensation and not just physically remove them?

In general, what are called common carriers have the right to remove passengers from the plane or ask them to be reassigned to another flight if they’re over sold. There’s an interesting issue beginning to evolve though, and that’s the question as to whether the flight was actually oversold. Remember that the reason they took passengers off the plane was that they needed to accommodate a flight crew that needed to reach a different destination. There’s a question being raised right now as to whether that counts as being oversold.

Companies Pulling Ads From Google

Chrysta Castañeda recently appeared on Memphis Morning News  discussing how companies are pulling their ads from Google because of inappropriate placement. Below is an excerpt from the full interview.

Q. Chrysta, I thought that If I placed an ad online I would get to pick where it goes, wether it’s on a particularly page or before a particular video on YouTube. I’m learning that is not the case.

That is NOT the case. When you buy an ad Google places it where it will. You tell them how many clicks you want and some general information about your business and that’s basically how it works. They’re getting more sophisticated, and I don’t think that’s going to be true for much longer, but ad-placement has been pretty indiscriminate so far.

Q. What’s the worst case that we’ve seen recently Chrysta, what would you say?

The current crisis for Google is that companies like AT&T and other major companies are finding that their content might appear next to offensive videos or offensive sites, such as ISIS video, anti-semitic sites, or other racist types of content. That’s just not appropriate for those advertisers and they’re alarmed by it, so they’re pulling all their ad-buys from Google.

Q. So I’m guessing a Chick-fil-a ad juxtaposed next to a violent ISIS video is probably not good PR?

I’m sure Chick-fil-a would prefer that not happen and that is not good PR. That’s why you’re seeing these drastic reactions, which is ‘We’re pulling ads until you figure it out, Google’.

Q. I’m often surprised by the ads or music that plays before a video, but I thought the company had a say in the ad.

It’s a perfect example of what the problem is, you as the viewer immediately attribute the company with the content of the video-ad.

Q. Is this a case where companies are having to team up with the marketing department in advance and have them take that extra step to make sure inappropriate ads don’t play before their content, because as the web evolves there are opportunities for things to be great but also negative things can pop-up that we didn’t imagine two years ago?

The thing about crisis communications is there’s always the next crisis and the next crisis. And Yes, I’m sure companies across the world are adapting to new threats to their business model, and their goodwill with the public.

Q. I’ve been a little disturbed when I haven’t searched for anything on my phone, but I may have entered a store, or brought up a retailer in conversation, and then I’m getting ads for that brand.

It’s a new frontier everyday, the world is constantly changing and the power of these search engines is amazing, and that’s why companies are concerned with the content that’s coming up.


Trump’s Approach To The Press

Chrysta Castañeda was recently features on WILS 1320 talk radio discussing Donald Trump’s approach to the press. Below is an excerpt from her interview. Listen to the entire interview here.

Q. Trump appears to be combative with the press, how do you think of the way he’s dealing with them at this point?

He’s consistent in his methods and has certainly generated a ton of buzz about how he treats the press along with what he’s saying and not saying. In general I think it’s viewed to be a pretty haphazard approach.

Q. Well what do you think about the way the press is treating him?

It’s very interesting, I was thinking back to prior administrations and there were some reporters who were on the ‘do not call on’ list, and didn’t get to ask a single question for about eight years. I don’t think that’s much different from previous administrations, but perhaps Mr. Trump was a little more aggressive in explaining why he wasn’t going to call on certain reporters.

Q. Do you think the press has earned this reaction from the President Elect in terms of how they’ve been reporting on him?

That’s hard to say, like any spat between people you have to consider who started it, who responded to it, and how they ended up in this situation. I think the press have had a fairly negative view of the president-elect, but they are the people who report the news to the citizenry and so they’re due some respect on that front.

Q. Should he change the way he’s behaving with the press?

At some point he may find that he needs the press to get out his messages, and if so I think a different approach would be warranted.

Q. What about twitter, is that not going to be enough?

My opinion is that the people you reach through social media are not the same people you reach through the press, and your legacy is largely defined by the press not the twitter records. So those may be things he wants to consider.

Q. If the press has been essentially against you for years, how do you change their mind?

Like any relationship it requires a different approach. Maybe he holds more press conferences, maybe he’ll need to answer questions a little more directly, maybe use less combative terms. There’s no indication of that right now, his press secretary certainly came out swinging in this latest press conference.

Q. Do you think the press is truly unfair to Donald Trump, not just the way they deal with him, but in the tone they use to cover him?

I think there are certain viewpoints the press may have about him that get echoed article to article, and that may or may not be completely deserved. I think he also fosters some of his reputation of the press by the way he treats people.

What should counsel do to prepare for adverse media attention in the case of a governmental investigation, crisis or litigation?   

I recently spoke at the Texas Lawyer’s in-house counsel summit about the interplay between communications and legal issues in times of corporate crises, regulatory proceedings or significant litigation.  Counsel frequently face a situation where company statements become adverse evidence at trial.  Sometimes, statements in legal proceedings adversely impact the corporation’s reputation externally.  And, now that every pleading is posted online in Texas in fully searchable form, the communications issues arising from litigation are bound to multiply.

What should in-house counsel do to prepare for media attention around legal proceedings? First, if nothing is imminent, now is the perfect time to begin preparations.  Do you have in-house communications professionals?  What is their scope of work – marketing-related; speaking to financial analysts; employee communications?  Are they tasked with planning for crisis communications?  Does your company have a crisis plan that addresses communications, or is the crisis plan solely targeted to operational issues?  If your company lacks a crisis communications plan, begin developing one now.  There are many phases and inputs to such a plan, but a key concept is that internal stakeholders from the General Counsel’s office need to actively participate in developing that plan.

If your crisis, investigation or regulatory proceeding has already begun, go directly down the hall to speak with your in-house communications team.  If you don’t have one, find an outside advisor who specializes in legal issues.  Above all, avoid having the words “no comment” and “failed to return calls” printed in the newspaper about your client.  It is entirely possible to have a credible, true and consistent statement that expresses your client’s position when the media call, even if you have little advance notice.

As the crisis or regulatory proceeding evolves, in-house counsel must maintain their involvement in the communications cycle, but not for the reasons you (or the communicators) might think.  You are not there to tamp down all attempts to communicate with the media about your client’s position for fear that the legal risk will outweigh the benefits.  You should be involved because your participation helps ensure that the communicators know what’s coming in the legal process.  Your mutual discussions will educate both of you about the inflection points and risks from both the PR strategy and from the legal processes.  Your collaboration will help you develop the best results for your company in the face of a crisis or regulatory proceeding that commands media attention.

Fine Tuning Voir Dire

I recently sat through voir dire as a panel member in one of the criminal district courts in Dallas County.  It’s always good to watch other practitioners go about their art; I always learn a lot (or am reminded of what I already know).  To my fellow trial lawyers who read this blog, here are a few reminders:

  • Communicate clearly about the legal principles at issue. This is particularly hard in a criminal voir dire when you aren’t allowed to discuss the facts, but make sure your questions are crystal clear about how the law works under various situations.  Counsel got tripped up when asking the ultimate “for cause” question, whether each panel member could award the full range of punishment.
  • Listen more than you talk. It takes professional maturity to know that it’s not about you or your mastery of the case; it’s about digging out information about your panel members as fast and as thoroughly as possible.
  • Ditch the pretense that voir dire is a game show and you are the host. No “I can’t hear you”-s after asking how the whole panel is today.  Find a way to be relatable without being insincere.
  • Focus on striking those people who are biased against your side. Never ever lose this focus.  It’s the only thing that matters.  You aren’t trying to impress 72 people; you’re trying to figure out which of those 72 people you can’t live with on your jury for the next two weeks.
  • Don’t ask a single question that doesn’t get you to the previous point. Sit down if you’ve asked all you need to ask.

Should Trial Counsel Speak to the Media?

I’m often asked whether litigation counsel should serve as a media spokespeople when they are handling legal matters of public interest.  As in most things, the answer is “It depends.”  Here are a few key considerations:

  • Is the key message about the legal proceedings, or about the business? If the former, perhaps counsel is a good choice.  If the latter, go with someone else.  Choosing a lawyer as a spokesperson reminds your audience that you’re involved in legal proceedings.
  • Are you close to trial? If so, recall that lawyers are limited in their statements by Tex. Dis. R. Ethics 4.07 so as not to prejudice potential jury proceedings.  The Supreme Court has indicated that the clients themselves are not so limited.  Commission for Lawyer Discipline v. Benton, 980 S.W.2d 425, 428-35 (Tex. 1998).  And on a more practical note, your trial lawyer’s focus likely needs to be on the courtroom, not the media.  But keep in mind there are some legal concepts that only a lawyer will be able to explain.
  • Whose reputation are you trying to promote? Sometimes lawyers will advocate to be the spokesperson for self-marketing purposes.  While there is nothing wrong with being associated with a big trial or deal, keep in mind your key messages and intended audiences so as to not confuse your goals with the goals of your lawyers.  And keep in mind what kind of media profile your lawyer has, which is likely built around the representation of other clients who may or may not be similar to you.
  • What is the long game? Do you intend to try to positively position your company’s profile with other stories either before or after trial?  Perhaps maintaining a single spokesperson throughout the campaign is a good idea, and a lawyer might not be the best choice of spokesperson.

Oil Prices are Falling: Get Ready for Litigation

Oil prices are falling and deals are getting scrapped.  As was the case with the last several business cycles, litigation will undoubtedly ensue.  The old-timers refer to this as “drilling at the courthouse.”  Here are five tips for preparing for possible litigation:

  1. Issue a litigation hold for your documents and emails. Tell everyone in the company –either by email or hard copy document – to preserve and segregate their documents and emails pertaining to the dispute.  Even better, give them a list of key terms and people so that they are assured of complying.  Ask your IT department to affirmatively search for those terms and people in the systems.
  2. Consult outside counsel early, even if you don’t know that you’ll file suit or be sued. Starting early will give you more time to select appropriate counsel, plus give her or him time to prepare.  Consider whether your current counsel may or may not be appropriate for the situation at hand.  Factors that can impact your choice:  venue, legal substance, liability exposure, conflicts of counsel.
  3. Think about who will be a witness – on your side, from the outside, and from the opposing party. For those witnesses under your employment, or who are friendly to you, have counsel interview them to capture their basic memories of facts and their impression of the matters at issue.  An early assessment of whether you have good witnesses or not will be key to your determination of whether to bring, or how to defend, a lawsuit.
  4. Consider arbitration. Whether or not your agreement has an arbitration clause, consider whether it might help.  Arbitration is still far quicker than a court case, and all of those months and years spent slogging through court litigation take a toll – not only in outside counsel fees, but also on your company’s ability to tend to its regular business.  Plus, arbitration is confidential and court cases are not.  Consider entering into an agreement to arbitrate if you don’t have one.
  5. If the public will care about your dispute, think about what you’ll say publicly and how you’ll say it. Many cases don’t trigger public interest, but many do – because of who is involved, how much money is at stake, or because the facts are exciting.  If you’re a plaintiff, think about whether advance publicity will enhance your outcome (but always be mindful of your ethical duties, if you’re a lawyer).  If you’re a defendant, you’d better have something more to say than “no comment” when the media call – and that call may come as soon as plaintiff’s counsel promotes the story or files the lawsuit.