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Licensing, Technology Transfers,
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After 45 years of business law practice, with emphasis primarily upon dispute resolution and diagnosis of dispute causation factors, I have come to recognize things that only a life spent immersed in company difficulties can teach.
Among the more critical of these is that early on willingness to address what can at least be sensed in the near distance, if not fully recognized yet is the most favorable option. The failure to catch the issues early on is the same problem as the failure to diagnose medical issues early on - the damn things get bigger.
Another critical factor is the failure to recognize that those involved at the center of the matter are usually in the worse position to be clinical. There are too many agenda-driven obstacles to clear vision, and too many internal political concerns to enable open, effective diagnostics and treatment option considerations. No one in the middle wants to be the subject of criticism or blame, and defensiveness obstructs clear vision.
Another critical factor is that the positive resolution of negative issues frequently requires the input of several diverse disciplines, and the selection of those ought to be the responsibility of someone who does not have a "dog in the fight". The temptation of the involved is to seek out resources that seem willing to represent that they will protect the interests of the person who hires them, even if that results in impaired remediation of the real situation. In short, you need a disinterested crisis manager if you expect near term positive remediation. That is the only way to deal with crisis in real time and in reality mode.
A company's regular counsel is probably someone that was involved at least tangentially in the matters that are central to the difficulty. A company's accounting firm was responsible for the credibility of the financial statements published during the periods when the factors that brought on the problems were being accomplished. Neither of these resources - regardless of what they may say to be politically correct - can be counted upon to be without their own self defense agendas when bet the company issues arise and need to be recognized and confronted.
When someone should be going into the "boss' office" to sort it out in terns of what it is; how it got to be this way; and what the options are for dealing with it, that someone ought to be a person or firm that you can fire and still have your regular professional relationships intact. Truth to tell, if the news is bad, the first instinct will be to fire that messenger. That messenger has to have a sufficiently strong presence to overcome the instinct to fire him and be able to inculcate credibility in the management with whom he has to deal.
If the situation is one in which the worst thing you could do is put up a confrontational posture, early on disinterested crisis management control over what the company's opening gambit will be really is indispensible. The wrong opening gambit can make everything that follows more difficult, more expensive and take longer to resolve.
Illustratively, in one matter I dealt with in which I was called in very late, the wrong case had been litigated and lost. The company's lawyers then recommended an appeal -a hopeless decision, as there had not been trial court errors that would make an appeal effective. What would have been accomplished is that the company would have a higher court opining that it was culpable instead of just a trial court. Having to advise the dismissal of its own appeal and the replacement of counsel who failed to appreciate the seriousness of the situation was a hard sell. That advice left the defeat unchallenged and we all knew that it would encourage further litigation. But the truth was that the loss could not have been reversed and an affirmation by an appeals court would only have stimulated more litigation than what was being recommended.
To make a long story short, the ensuing litigation was all either won or favorably settled (over a period of five years). Any other approach would have resulted in the failure and bankruptcy of the company.
Had I been on the problems before the decision to fight was made, we would not have picked the worse fact pattern and the worst state law as the theater of conflict. It took much longer to "fix" everything because of late reality recognition.
To this day that company stands out in my mind as a clear example of the consequences of allowing agenda to rule over reality.
We really do know, at least liminally, when something is moving in a bad direction. When we first sense that is the best, least expensive and most effective time to link up with a good crisis manager.
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