This article is part of research presented at the 2015 International Public Relations Research Conference. For similar research visit IPR’s Law and Public Relations research section.

Public relations practitioners have long known saying “I’m sorry” in a crisis causes negative collateral consequences. These consequences frequently are lawsuits that use organizational statements of apology, empathy, sympathy, and remorse as evidence of wrongdoing. Lawyers routinely censor what practitioners say for fear of providing legal fodder for potential plaintiffs. This frustrates practitioners and leaves them wondering “what is the benefit of winning in a court of law but losing in the court of public opinion?”

Knowing the contours of American evidence law can help practitioners fashion a legally defensible crisis strategy that includes apology, sympathy, empathy, and remorse. Having the ability to write these PR responses and knowing the potential legal consequences is a huge benefit to public relations counsel and their organizations. Studies show that frequently the public, especially in the United States, expects organizations to own fault in a crisis situation. In fact, litigation studies show that organizations that admit to wrongdoing actually have fewer lawsuits filed against them post-crisis. However, a good lawyer advises his or her client to be risk adverse. In the case of a crisis a lawyer advising a client to admit fault publically to gain public support is not providing sound legal representation. Likewise, the PR practitioner who tells his or her client to ignore the public is probably committing public relations malpractice.

The rules of evidence in the United States operate at two levels—federal and state. The Federal Rules of Evidence created in 1975 are extremely important because they govern all evidentiary issues in federal court and are the model used in 38 state’s rules of evidence. Under the Federal Rules of Evidence Rule 401 any evidence that has probative value, in other words is relevant, is admitted into evidence unless that evidence is prejudicial. The Federal Rules of Evidence Rule 801 disallows hearsay, out of court statements, from being admitted into evidence. However, there are exceptions to the hearsay rule. Under Federal Rule 801(d)(2) statements made by a party opponent, i.e. the person or organization being sued, can be admitted into evidence because the statement is not considered hearsay. This means that if a representative of an organization makes a statement that is incriminating that statement can be brought into evidence even if the speaker does not testify. This has a huge impact on public relations because it means press releases, social media postings, statements at press conferences, and any communications with media can potentially be admitted at trial as evidence of legal fault.

In response to the rising number of lawsuits, particularly medical malpractice suits, states began to pass new evidence rules that allowed for mortification statements to be excluded at trial. Currently 27 states and the District of Columbia have evidence laws, known as “I’m Sorry” laws that exclude mortification statements from entering into evidence. Of those 28 jurisdictions with “I’m Sorry” laws, 49 percent have laws that still allow admissions of fault into evidence regardless if the admission is couched in terms of mortification. Jurisdictions vary in their approach to “I’m Sorry” laws. Some jurisdictions specifically spell out what apologetic or empathetic statements are. Other jurisdictions, such as North Carolina and Illinois, even exempt benevolent actions, such as paying victims’ bills, from entering into evidence.

Given the complex nature of evidence rules it is important for practitioners to know how their work may be used in a courtroom. In light of these evidence rules, PR practitioners should ask themselves four questions when crafting communications for potential litigation.

Is this crisis likely to result in a federal or state lawsuit? Remember in a federal suit there is no such exemption for mortification strategies. It is best for the PR practitioner to have a crisis that will be in a state court in a jurisdiction with an “I’m sorry” law on the books. This is counter to what most lawyers want. Lawyers on the whole prefer federal courts because of the advantage of having a larger jury pool who is unattached to the underlying crisis. Jurisdiction is a legal question that can be an issue within the lawsuit. However, if a practitioner has an idea of where a lawsuit will be filed they can better prepare the crisis statements to comport with the jurisdiction’s evidence laws.

Who is my audience in my crisis communication? In all jurisdictions with “I’m sorry” laws the “I’m sorry” exemption states that the statements made must be directed toward victims and their families. This may affect a practitioner’s mode of delivery. In a large crisis it is easy to see how traditional means of PR communication, e.g. press release, press conference, could be used. However, in smaller crises with a limited number of affected victims practitioners may have to use other means of communication.

Am I expressly admitting fault in my statements? As mentioned above, 49 percent of jurisdictions with “I’m sorry” laws still allow for admissions of fault to be admitted into evidence. All federal jurisdictions allow these types of admission statements into evidence. Because of that, practitioners should craft crisis communications carefully. While this is a difficult task, practitioners may have the ability to craft communications that convey apology, sympathy, and empathy without fault. Of course, parsed statements of guilt may ring hollow; however, it is a legal reality that practitioners must live with.

What is my organization doing in addition to our PR strategy? It is important in crisis communication that practitioners know what the organization is doing outside of its PR efforts. Carefully crafted PR communications can be undone legally by actions that show guilt. It is important to note there is no exception in the law for non-verbal behaviors that suggest fault. Knowing what an organization is doing in the face of a crisis can assist practitioners in producing better communications and post-crisis responses that avoid legal pitfalls.

It is important to note that PR communications can, at worst, be used as evidence of at trial. These communications are just evidence and not dispositive of fault. Juries can use evidence any way they see fit. They can rely on it, ignore it, or interpret it any way they wish.

Knowing evidence laws provides a new opportunity for PR practitioners to communicate with organizations on how best to craft crisis responses. It also provides practitioners with valuable information that can be used when discussing crisis response strategies with organizations and their legal counsel. Perhaps most importantly, knowing the rules of evidence in American courts allows practitioners to fully understand the implications of their crisis response strategies. In examining current federal and state laws concerning evidence, it seems that the legal status of mortification strategies is changing and becoming more protected. This presents new opportunities for practitioners, legal counsel, and crisis communications strategy.

Cayce Myers, Ph.D., LL.M., J.D. is the legal research editor for the Institute for Public Relations. He is an assistant professor at Virginia Tech’s department of communication where he teaches public relations.