Companies today live in a fish bowl of public scrutiny. Their actions are monitored under a microscope like never before. At a moment's notice, a company's practices and culture can be thrust to the forefront of public opinion. (I need not engage in public corporate shaming to illustrate the point. A moment's reflection will evoke numerous examples of companies whose conduct, although legal, was judged harshly by the public.) What does this environment mean for those of us, such as corporate executives, lawyers and compliance officers, who share responsibility for keeping our organizations on the straight and narrow path toward their business objectives? It means we have to broaden our perspective and increase our line of sight.

We must consider not just the legality of corporate conduct, but the impact those actions may have on a range of stakeholders—including customers, shareholders, vendors, regulators, and the public. Companies and their lawyers have been conditioned to focus on legal obligations, but external constituencies often adopt a broader perspective. They see the law not as an end unto itself, but as a means to achieving a higher end—fairness and justice. Their views may not dictate a company's actions, but they should be considerations in the counsel you provide. The disconnect companies often experience when their legal activities nevertheless engender social condemnation can arise from the failure to consider and appreciate the broader values against which stakeholders evaluate and judge corporate conduct.

Avoiding this pitfall can be difficult. Legal obligations, some gray areas notwithstanding, define objective, enduring standards. Social values, by contrast, can be subjective, amorphous and shifting, but that does not mean they are any less real. It is this reality that animated one of the most quoted Supreme Court pronouncements, Justice Potter Stewart's formulation of the definition of obscenity in Jacobellis v. Ohio:

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it ….

The simple truth is that the difficulty in articulating a value does not negate its existence or power. For the stewards of an organization's values, the most difficult but important responsibility can be to articulate values that are not immediately apparent or easily defined.

Trial lawyers are used to this challenge. We know better than anyone that narrow, purely legal arguments alone are unlikely to sway a jury. Jurors evaluate the evidence and apply the law through the lens of their own concepts of right and wrong. A lawyer that is content with merely checking the requisite evidentiary boxes without presenting them as consistent with shared, higher concepts of justice is likely to be disappointed with the verdict. We know, sometimes from a painful experience, that the most persuasive case is the one in which you can argue that your position is not merely legally right but consistent with basic principles of right and wrong.

Over the course of the three decades I have been representing clients in trial, conducting and reporting investigations of government entities facing institutional crises, and providing risk management advice, I have observed how profoundly internet communications, primarily social media, has changed the environment in which we counsel companies facing allegations of wrongdoing, whether those allegations come from an enforcement agency or the public. How companies should respond to these challenges must reflect the ever-changing fish bowl environment in which we now operate.

Of course, the need for public accountability for a company's conduct existed prior to the internet. Traditional media has always served a watchdog role and continues to do so. The internet and social media, however, have democratized and intensified public scrutiny. In connection with my role in investigating the Bureau of Alcohol, Tobacco & Firearms (ATF) raid on the Branch Davidian compound in Waco, Texas, which resulted in the deaths of four law enforcement officers and a fiery conflagration that killed many of the compound's residents, in 1994, social media was in its infancy but we quickly realized its impact and the need to account for it. Questions about the ATF's actions often originated through online postings that were later picked up my traditional media. We recognized that in order for our findings to be credible we needed to address these questions. Consequently, we began tracking online postings about the raid so that we could be sure we addressed the questions and criticisms. This resulted in a report that was universally praised as thorough and tough but fair. We achieved this result by understanding, respecting and responding to the public's concerns.

Fast forward to today's digital age, whether defending a case in court or, as is becoming increasingly commonplace, conducting an independent investigation to restore public confidence in an organization's integrity is heavily focused on monitoring online media. By the time we are ready to tell our story, our audience, be they jurors or the public, will likely have been exposed to a cacophony of views within minutes via Twitter about our conduct, and these views may have only the most tenuous connection to the facts. For lawyers representing companies that become so embroiled, social media has given us new appreciation for how Alice felt when the Queen of Hearts proclaimed, "Sentence first—verdict afterwards."

So in this new fish bowl of constant public scrutiny, how do we ensure our companies are judged fairly? Here, I offer 10 lessons learned from experience defending clients in the courts of law, and in the court of public opinion, that you can apply when faced with a public crisis.

One: In the public's eye, you are not innocent until proven guilty. The initial reports may have turned the public against you. Your first challenge is to create space that opens the public's mind to considering your explanation. Articulate your organizational values, commit to upholding them, assure the public of a thorough, objective investigation, and a public accounting of the findings.

Two: Establish credibility with your audience. At the beginning of a trial, the jury knows little, if anything, about the lawyers who will be advocating for their respective clients. But, through voir dire and opening statements, one of the trial lawyer's tasks is to establish common ground with the jurors. If they identify with you, they will be more open to listening to your argument. This lesson applies equally to crisis response, in which your "jury" may be critical stakeholders or the general public. It is essential that the face of your response is able to establish credibility with your audience. In the case of an investigation, this is usually established through assigning responsibility for it to an individual or organization that has the credentials and track record the public will accept as demonstrating integrity and independence. Sometimes, however, having someone in the organization serve as the face of your response can be the most effective approach.

Three: Let your audience know you share its values. If your audience believes you do not share its values with respect to fundamental concepts of right and wrong, they are not likely to consider your explanations on your organization's behalf. Your initial statements should convey that you agree that those who engage in misconduct should be held accountable, and that those values will inform your response to the allegations.

Four: Any statements will be received as a promise you will be expected to keep. Of course, public crisis response differs from trials. In trials the opening statement is given after the key facts are known, whereas the opening statement in an crisis often must be made before the facts are known. In fact, the purpose of an investigation is to obtain the facts. So what do you promise? You promise to be honest. And how do you keep that promise? First, do not make factual statements until you know the facts. Do not blame operator error, for example, unless and until you know it was not an equipment failure. If there is information that is still unknown, admit it and promise that when you do know, you will provide the information. Remember, your goal is simply to create space to persuade your audience to give you a chance to prove to them that you can be trusted.

Five: Keep your promises. You do not get a second chance to make a first impression. If you break a promise, you risk losing credibility with your audience and your investigation may be viewed as a whitewash. Keeping promises is often easier said than done as facts may reveal a much more serious problem than anyone initially anticipated. Or, the truth may compromise other important organizational interests. Nevertheless, your challenge is to find a solution that preserves the organization's credibility without unduly compromising its business imperatives. If that cannot be done, however, it is essential that you recognize the consequences, be intentional in your choices, and expect to be held accountable for them. Sometimes, short-term pain cannot be avoided when an organization is trying to move past a crisis.

Six: Be objective. As difficult and painful as it may be, fiercely defend your independence. Your real value to the organization is to keep it from succumbing to the powerful temptation to ignore or deny unpleasant truths. Undoubtedly, you will not be the only one investigating the facts. The media, activists, regulators and others may be doing so as well. If you succumb to the temptation to spin, you can be assured the truth will come out and your organization will be judged not only for its missteps but for its lack of candor.

Seven: View the facts through your audience's eyes. Often the biggest challenge for a lawyer is to remember how to talk and think like real people do. Facts and questions that have no legal significance may be front and center for your audience. There is not an experienced trial lawyer who, having worked relentlessly to anticipate every question a jury could have, has not been gobsmacked by a question the jury sends out during deliberations. "Why do they want to know that? What does that have to do with anything?" we ask in frustration. It is not what you think that matters, it is what your audience thinks that matters. Remember, the message received is the message.

Eight: Embrace the bad facts. The public, like jurors, knows a bad fact when they see one. If you do not address it, rest assured that your critics will. Often it is the failure to acknowledge an undeniable bad fact that causes your audience to reject your whole case on the maxim, falsus in uno, falsus in omnibus; false in one thing, false in everything.

Nine: Do not just report facts; tell a story. People relate to stories and are persuaded by them. Stories are how we organize our world. Organize the facts into a compelling narrative that aligns with your audience's sense of right and wrong. If something went wrong, say plainly and directly what happened, why, how, and what your people will do to make amends, and ensure the error will not be repeated.

Ten: Accept responsibility and apologize. That is what responsible people and organizations do when a mistake has been made, and it is what the public demands. Yet it happens too rarely. Promise to do everything you can to make sure that the mistake does not happen again. And keep that promise.

In an age of unprecedented transparency, in which virtually anyone with internet access can focus public scrutiny on a company's practices, corporate executives and their counsel must anticipate the very real prospect that they will find themselves in the spotlight. Applying these 10 lessons will help you navigate your company through crises and get back to business.

David Douglass is Managing Partner of Sheppard Mullin's Washington, D.C. office. He represents public and private companies in investigations and litigation. He has also conducted special investigations of the ATF and U.S. Secret Service for the Department of Treasury. Currently, he is serving as court-appointed Deputy Monitor for the New Orleans Police Department overseeing its compliance with the terms of a Department of Justice Consent Decree. He is a fellow of the American College of Trial Lawyers. He can be reached at [email protected]