Perhaps it borders on cliché, but the influence of the saying oft-associated with P.T. Barnum that, there’s no such thing as bad publicity, continues for some to ring true — at least for some. While its broad applicability is dubious at best, many have felt intuitively that there was yet some kernel of truth in that saying that is maligned nearly as often as it’s repeated. The evidence of this instinct can be seen in today’s marketing landscape where newspapers run Page 6 gossip columns and major clothing retailers invoke tone-deaf designs alluding to the Kent State shootings. Some companies and organizations have certainly made the conscious decision, both in the past and in the present day, to push to the boundaries of social acceptability as to shock their way into the public consciousness. However, many other businesses take a more conservative and traditional approach and attempt to gain brand recognition through other means such as informing the public about the benefits of their product, social media management & outreach, using strategic product placement, offering free samples, SEO, and using other marketing strategies.

However, what often makes for interesting study is what went wrong when the more conservative approach backfires – and it can backfire if executed clumsily or in a tone-deaf manner.  A Brookings study found that anti-Affordable Care Act (ACA) advertisements backfired in the four states with the highest per-capita spending on them. The study found a positive association between anti-ACA advertisements and enrollment rates in the states. It hypothesizes that the media exposure provided by the negative press may have nevertheless informed the public about a new benefits program.

The reasons for a backfire are numerous and related to the nature of the marketing campaign but they can range from an oversight of an unfortunate double meaning to the overstating the benefits of the product. In any case, negative publicity can often have somewhat unintuitive and unanticipated effects. Some argue that certain individuals or businesses may want to even consider seeking out negative publicity. While brands, including law firms, must be more cautious in their approach to negative publicity, in some cases negative press – whether desired or inadvertent — can nevertheless be turned into a positive marketing opportunity.

Stanford Study Shows Fledgling Companies are Often Helped by Negative Press

A February 2011, Stanford Graduate School of Business study published in Marketing Science showed that, in some instances, negative publicity could nonetheless lead to an increase in sales. However, the study noted that the public’s previous awareness of the brand was critical to understanding this effect. The study found that when brands with previously strong public awareness experienced negative publicity, sales typically fell. But, when a relatively unknown brand or individual received negative publicity, in this context sales increased. The study advanced the explanation that the relatively unknown companies exposure to negative publicity is tempered or even overtaken by the exposure the company receives which established brand awareness.

The study examined 240 fiction titles that were reviewed by the New York Times. The study’s data showed that positive reviews always had a positive effect of sales showing increases between 32 percent and 52 percent. When authors with an established brand experienced a negative New York Times review their sales decreased by 15 percent. However, when an author who was previously unknown received a negative review, their sales increased drastically with a 45 percent increase. Another study where one set of participants read negative reviews about new authors while a control group completed unrelated tasks also arrived at similar findings.

The study authors also noted that, “…whereas the negative impression fades over time, increased awareness may remain, which can actually boost the chances that a product will be purchased.” What this means is that unknown individuals and brands may have little to lose when it comes to negative publicity and they suggest that, “smaller [motion picture] producers may want to allow, or even fan, the flames of negative publicity.” But they do caution organizations that have cultivated a brand name against the dangers of negative publicity citing a 25 percent drop in sales after the circulation of a rumor that alleged McDonald’s used worm meat in its hamburgers.

However, some established brands are nonetheless able to take negative publicity and turn it around into a positive marketing campaign that leverages the increased brand awareness while simultaneously rehabilitating the brand’s image.

Even Established Brands can Harness and Direct Negative Publicity

In April and May of 2014, POM, the makers of POM Wonderful became a repeat feature on the John Oliver Show for rather undesirable reasons. Following news reports that POM overstated health claims, the show’s host and namesake skewered the language used to describe the prostate health benefits used in marketing the product. Oliver suggested that viewers place stickers on the bottles insinuating that the juice “contained dogs” and derided the product as “puppy juice” and “snake oil” while suggesting that viewers may need to consume the juice in enema form to see the health benefits promised.

While many companies may have ignored this instance of bad press on late-night television or issued a generic press release, POM approached the situation more creatively. In a follow-up segment Oliver remarks that several days later POM sent a small fridge containing several cases of the product along with a letter. Oliver reads the letter on the air and the audience finds that not only is POM willing to embrace the not so subtle humor that is being directed its way, but also it does so in a dry, witty manner and offers something of a half-apology while complimenting the intelligence of the audience:

We really have spent $35 million dollars to finance world class research on the health effect of pomegranates. That research isn’t definitive, but it actually is promising. We think consumers know that they can’t actually cheat death by drinking juice.

They then take it one step further turning Oliver’s own joke around by concluding:

As for the idea of a POM enema, we’ll take it under advisement. What you do with the cooler full of POM – is your business.

And in a little under 4 minutes of air time, POM had turned a spate of negative publicity into an opportunity to market to the coveted, and difficult to reach, 18 to 34-year-old demographic. While there is plenty here that would make a more conservative company uncomfortable, this success was only possible because of the brand’s willingness to take ownership.  Success was achieved by embracing their unintended marketing backfire and engaging with the audience on the audience’s terms and in its language.

A similar goal was achieved in the case of Michael Vick. At the time of his arrest and conviction Vick was signed to a more than $100 million NFL contract, multiple endorsement deals, and was considered to be one of the most marketable athletes in the United States. People were both horrified and confused how someone with everything could finance such heinous activities. Vick went to prison, was suspended from the NFL, and marketers could not distance themselves quickly enough from athlete. Some predicted he would never be reinstated by the NFL.

After his release from prison, Vick began outreach efforts. He worked with the Humane Society by making public service announcements and by appearing personally at events. He contributed toward a large donation made by his team to fund and support dog fighting prevention organizations. Vick donated $200,000 to build a football field in an north Philadelphia neighborhood.  He accepted an invitation to be a commencement speaker for a Philadelphia school for troubled teens.

While Vick’s image is arguably not anywhere close to where it was prior to his arrest, today, Vick is once again accepted by many in the public at-large. His name is now associated with a man who came from a troubled background but was able to turn around his life and rehabilitate himself. However, there are some – particularly dog and animal lovers – who will never forgive Vick for his past actions. Thus, in this example too the impacts of negative publicity seem to cut deeper and leave longer-lasting scars when the brand is already well-established and the actions strike at an aspect of an audience member’s fundamental identity. People may be willing to forgive POM for exaggerating its benefits because many young people only have minimal knowledge of the product and, at some level, expect some salesmanship. Those expectations coupled with a well-crafted campaign can wash away most of the negative impact for POM.

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How Can a Law Firm Leverage Negative Publicity?

Now, before you think that this piece is going to recommend engaging in negative publicity for your firm, let’s review the basics.  All advertising by a lawyer is governed by the rules of professional conduct that have been adopted in that state.  Many states, including Pennsylvania, have adopted an adaptation of the Model Rules of Professional Conduct, in which generally, Rules 7.1 through 7.6. These rules constrain the tactics and techniques a lawyer and a law firm may utilize when advertising or communicating to the public about the firm’s services. For instance MRPC Rule 7.1 reads, “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.” Likewise, Rule 8.4 prohibits statements by a lawyer or law firm that implies that the firm of lawyer can improperly influence a government agency, like a prosecutor’s office.

Thus, through provisions like these, SEO for law firms is a more conservative endeavor by nature. Furthermore, your name and firm name are brands that you do not have the luxury of changing readily or easily.  While a consumer brand or conglomerate can simply drop a brand or rebrand a product, such actions are not a luxury lawyers typically have. When one is developing a brand, the impacts of negative publicity can be more damaging and have a longer-lasting impact on your business.

Furthermore, aside from the advertising rules, a lawyer’s ability to carry out his or her legal and fiduciary duties along with the imposition of character and fitness requirements by state bars and potential disciplinary actions, rarely makes personal negative publicity advisable for a lawyer.

While negative publicity that detracts from one’s character is never advisable, other forms of uninvited attention can occur nevertheless. For instance, media reports that question the motives of a lawsuit provide a lawyer or lawyer an opportunity to speak directly about the goals and principals held by the firm or practice. Reports of an unfavorable verdict can often be cast in a light that does not necessarily focus on the number, but rather on the some positive aspect of the experience whether it be the firm’s strategy that limited what initially appeared to be a more expansive liability or the grounds on which you prevailed. Long-held and consistent charOf course, fledgling firms and practitioners who have yet to establish a strong brand identity will find strategies of this type more effective and with few or no lingering negative perceptions.

In short, even bad news often has some positive aspect embedded within. However it is not only the substantive elements that matter, but also the approach your firm takes in response to the news. Further, that approach should vary depending on the the particular news and your firm’s market position, i.e. whether anyone has heard of you before.  In many cases where a law firm finds itself receiving potentially negative press, taking ownership of the situation while drawing out the positives can shift perceptions and turn bad news into good marketing.

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