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One of the most acute causes of stress in any crisis situation is the issue of confidentiality. It is correctly believed that information about the situation and about what might be done should be managed with utmost security against leaks.
It is not likely that only one person in the company will be aware of the impending crisis. It is important to gather those who do know about it and to pledge everyone to absolute secrecy until you can get your hands around the problems, the issues, the facts and the tactical options and limiting circumstances. It would be best if, for the time being at least – a few days – the key people are asked to limit even what they say amongst themselves about it. Conjecture is frequently off the mark and off the mark conjecture can only make matters worse and increase stress.
Someone has to be in charge. That person needs to seek out crisis management representation counsel immediately – within a day or two, not a week or two. One lawyer in house (if there is in house counsel) and maybe one from you outside law firm only if absolutely necessary, but no more than that.
This is not a beauty pageant. Quickly identify one or two crisis specialists. Call them immediately, no matter where they are located. Location is immaterial in crisis matters. Expertise and insight are all that matters. If you spend some money on some plane tickets, so what. Set up an immediate face to face meeting, your place or theirs. If it’s to be your place, hold the meeting off campus. You don’t need the crisis specialist showing up at the receptionist’s desk and being treated like any ordinary first time visitor. You also don’t want to bring your receptionist into the loop here. Meet off premises.
Talk with this person about what is happening as you believe you see it. Ask if similar matters have been dealt with and get a conversation going on what was done and what results were had. Don’t ask for references. No one wants his company’s name used as a reference in a crisis situation. Telling a new client who you managed a crisis for is the mark of someone who can’t keep confidences. If this first person seriously impresses you with comprehension and capability, easy adjustment from day to day as things morph into what the ultimate dispute will really boil down to be, hire him, then and there.
Experienced crisis representation specialists will bring their toothbrush to that first meeting and be prepared to stay and get to work immediately. We are talking hours here, not weeks.
Tell him about the people he will be working with and make him aware of what he needs to be cautious about. Be direct. Political correctness here can produce problems that you don’t need.
Tell him about the adversary. Tell him about the claims, issues, and problems as you see them. Tell him where the “files” are on everything that relates to the dispute(s) and to the people arrayed against you.
Sort out the housekeeping issues, like retention, controls, procedural protocols. He will ask you to have all the “files” assembled in one place in locked file cabinets and in the electronic equivalent of locked file cabinets. He will tell you that nothing is to be deleted, erased or modified from that moment on. Everyone who is involved must be told immediately not to delete or modify any information for any purpose whatsoever. No one would ever believe that deletions and modifications were not for improper purposes. Meta data discovery will reveal changes, as the genealogy of documents is disclosed in their Meta data. Your position is not going to be perfect. No one’s position is ever perfect. People are human. One needs to deal forthrightly with that humanity. Any other approach will make innocent mistakes look like intentional wrongdoing. Actually, dealing forthrightly with your mistakes makes you a very credible witness should it come to that. Mistakes are forgiven. Mendacity lingers forever and colors everything else with its aroma.
Once you retain crisis counsel, set up an immediate meeting with the key people involved (that same day if possible). Introduce them to the person you just retained and then let him handle the meeting. He knows what to do, and if he needs support from you, he will have no compunctions about asking for it.
We have just described the first forty-eight hours of you crisis. Take a breath.
The only public statement that will be made will be made by the person in charge. That statement will be as follows: “We are sorting through the facts and the issues, and when we believe we have competent command of the situation, we may have a statement to make.” That’s it. Nothing more. If you can’t resist the temptation to be interviewed – if you have a celebrity need that you cannot control – you can expect that shortcoming to come back and bite you hard in a very painful place.
If your adversary has already lawyered up, your counsel will wish to open a channel to them. What he hears from you needs to be considered in light of what he hears from the opposition. That channel has to be open.
If you have followed this suggested procedure, you will be 72 – 96 hours into the crisis and you will have a big leg up on getting a handle on managing it, no matter how the requirements of managing may change as the situation develops. If you identified the problem earlier on and retained crisis counsel before it started to blow up, you would be much better prepared for the event, and possibly the blow up might have been sidetracked and other ways found to begin to deal with it.
In my worst case scenario, the client actually lost a key case and had filed a doomed appeal before I was brought in. Twenty six lawsuits involving over 175 franchisees later, we had it under control with no more lost cases. That worst case scenario lasted six years and losing the company itself was a real possibility early on. Auditors had to be given assurances that lawyers hate to give and usually do not give. But we got it done and sanity was restored. I have had two other situations that were almost that acute. In one we prevailed in or favorably settled fourteen cases and the company was later acquired. In the other situation it required reorganization of the company, but the components were spun off and acquired in leveraged buyouts by management who successfully operated them from then on.
This is no picnic, but it can be mitigated by immediate involvement of experienced crisis counsel.
Copyright 1997 - 2008 || Richard A. Solomon
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