This is an abridged version of an article that appeared on October 1, 2014, on the CrisisResponsePro paid subscription portal. To take advantage of all of the content, data and collaborative resources CrisisResponsePro has to offer, contact us at (800) 497-1737, email@example.com, or crisisresponsepro.com/signup.
On June 7, a Walmart tractor-trailer on the New Jersey Turnpike smashed into the back of actor and comedian Tracy Morgan’s limo, critically injuring Morgan and two others as well as killing fellow comedian James McNair. The next month, Morgan and the others sued Walmart for their injuries in federal court in Trenton.
On Monday, Sept. 29, Walmart responded with a court filing that ends up being a great example of lawyers not considering reputational repercussions from legal proceedings: Walmart is claiming Morgan’s injuries resulted at least in part from his failure to wear a seatbelt. Naturally, the claim was immediately picked up by national media outlets and has made headlines for the last two days.
To give Walmart some credit, claiming the victim may be responsible for his or her injuries, no matter how unlikely, is a standard tactic used by defense lawyers in personal-injury lawsuits. It’s called an affirmative defense. Lawyers plead these defenses, even if there is no evidence to support them, because they can’t add the defense later and the legal team hopes through the process of discovery to find evidence to support the claims. If no evidence exists, the claim is dropped later in the proceedings. It’s a fairly typical procedure in personal-injury suits.
But Walmart’s case is not the standard personal-injury lawsuit. Morgan’s celebrity makes this extremely high profile and places it under intense media scrutiny. Part of the discussion between attorneys and media professionals should be whether the negative reputational fallout from invoking such an affirmative defense outweighs any possible legal gain.
To be clear, the affirmative defenses were tacked onto the end of Walmart’s “answer” to Morgan’s complaint. Typically, there is nothing newsworthy in an answer for reporters to write about. But journalists found something in this one — the seatbelt affirmative defense on page 26 of the 28-page document.
By following the standard procedure and asserting this claim, Walmart gave Morgan’s lawyers all the ammunition needed to paint the company as an unfeeling corporate giant and to do enormous damage to its public image.
And Morgan and his legal team did use that ammo. “After I heard what Walmart said in court I felt I had to speak out,” Morgan said in a statement. “I can’t believe Walmart is blaming me for an accident that they caused.”
His attorneys issued a strong statement that attacked Walmart and fed growing support for their client. “Tracy Morgan is struggling to recover and they answer and blame him and the other victims for what they caused,” they said. “That’s despicable.”
By following standard legal tactics for an atypical case, Walmart created a PR mess for itself and gave Morgan ammunition he may use to force the company to settle on highly favorable terms. Walmart should have been more concerned with the media scrutiny around its case and changed its legal tactics accordingly.
— Rachel Gamson
Photo Credit: Shutterstock
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