Build the Evidence

“Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.”

John Adams

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One of the most difficult aspects of defending reputation is the need to establish that the allegations are not true. In other words, the objective is to “prove a negative.” The collection and preservation of reliable evidence is the key to meeting that challenge.

When confronted by an attack on personal or corporate reputation, simply identifying false allegations and declaring them to be untrue is not enough. Whether in a meeting with a journalist, her editor, the owner of a media outlet or its lawyer, the ability to actually prove the false nature of an adverse claim is the key to a positive outcome. Proof is established through evidence. When evidence is authentic, relevant and persuasive, even the most vicious attack on reputation can be quickly and effectively turned back.

The evidence needed to overcome an attack on reputation may take many forms. The critical question to be answered in identifying relevant evidence is, “What facts must I show to convince the average person that the allegations that have been posted or published are not true?” A simple example might be a statement that a company has been placed on a U.S. government list of designated narcotics traffickers. The special designation list issued by the relevant government agency — showing that the company name is not, in fact, included — would almost certainly be all the evidence needed to dispose of such an attack. Likewise, a published photograph that is alleged to show that a corporate official met with a known criminal on a given day can be fully rebutted by evidence that demonstrates that the corporate officer was in another city on the date of the claimed meeting. Although these examples are based on real cases, in most instances, the job of assembling the evidence to fully rebut a false claim is more complex and often requires intensive effort.

As any trial lawyer will explain, the integrity and quality of evidence will diminish over time. The legal term for the process through which evidence is degraded is called “spoliation” and can be the result of natural processes, human intervention, or both. For example, the testimony of most witnesses will naturally become less precise as time passes and memory fades. Similarly, documentation that is not part of an organized recordkeeping system — such as handwritten notes or receipts for goods and services where payment is made in cash — may be lost very soon after the event.

Most organizations that keep business records also maintain retention and deletion policies that set schedules for the regular elimination of files. There is nothing sinister about a record deletion or destruction program — businesses cannot keep everything forever. But the risk of spoliation of evidence that may be critical to effectively combating an attack on reputation is particularly great where critical records may be lost forever due to a regular deletion program.

So, preservation of evidence must be at the top of the list of steps to be taken when confronting an attack on reputation. In many cases, however, the false allegations may relate to events or conduct that took place years, or even decades, in the past. For example, a published claim that a corporate CEO was punished for cheating on a college exam 40 years ago — and from a school that has long since closed — would require outside investigative work to develop the evidence to disprove the story. When evidence must be gathered through external fieldwork, the independent investigative firm should ideally be engaged by the lawyer or law firm representing the target of the reputational attack. The reputation of an investigative firm is, of course, also a critical consideration that will directly affect the credibility of the evidence and the prospect that the evidence will be effective in turning back the attack.

The unspoken message when evidence is authentic, well-documented and persuasive is that if the false statement is not retracted or corrected, the evidence is ready for presentation in a courtroom. That next step is rarely necessary. When a journalist, an editor or the lawyer for a media outlet is confronted by the clear fact that a published media story is false, the outcome of the discussion is rarely uncertain.