LESSONS LEARNED #7

SHAKESPEARE WAS WRONG . . . ABOUT THE LAWYERS

By James E. Lukaszewski, APR, Fellow PRSA

As Published in PBI Media LLC's PR News, December 11, 2000

Copyright © 2000, James E. Lukaszewski. All rights reserved.

Attorneys are coming into crisis management big time, and they're talking more about what they do. You may not like it. You may not want it. You may feel it is uncomfortable and often entirely wrong, but until you can offer advice and guidance with the power and self-evident authority attorneys have, my advice is to suck it up, figure out how they do it, and get better at it yourself. But you'd better hurry.

David M. Bernick, a litigation partner at Kirkland & Ellis, recently wrote an article, "Corporate Crisis, the Attorney's Role," for the October 16 issue of The National Law Journal. In the June 2000 issue of Reputation Management magazine, former White House Special Counsel Lanny J. Davis showcased his talent as a crisis litigation communication specialist. He's also portrayed in the November 27 issue of Forbes as a "scandal-buster."

Just as in PR, there may be as many approaches to crisis management on the legal side as there are practitioners. Using the Firestone tire controversy as an example, Bernick describes what he calls the "conventional wisdom" on managing corporate crisis as "a decisive executive act, one that accepts responsibility and unilaterally solves the problem . . . may have been an early casualty in that process." He adds that the crucial issue is "how to develop an effective, cohesive management team that is tailored to the problem at hand and a plan for the deployment of that team." Useful point.

Davis takes an entirely different approach - one that is perhaps more PR-sensitive. It's a variation on the theme posited by Marion K. Pinsdorf, senior fellow in communications, Fordham University Graduate School of Business, in her book, Communicating When Your Company Is Under Siege. The concept is "tell it early, tell it all, tell it fast." To this, Davis adds the concept of "tell it yourself." Davis also uses what he refers to as a "predicate story." He describes this as a "complete disclosure to one or more news organizations, which are given exclusive access to all the information ahead of time."

The predicate story idea is similar if not identical to the PR concept of inoculating the media or at least a portion of the media before serious good or bad news is about to become public. But you never know, a popular new label may make management and the attorneys will sit up and take notice in new ways.

According to Davis, "The best of all worlds is to have an attorney in the room who has experience both as a litigator and in press/PR and politics" (like Mr. Davis?). "That way he or she can credibly engage and challenge the attorneys - on their terms, using their vocabulary - who are expressing concerns about preemptive, full disclosure . . . Such a debate will be invaluable for the CEO and other senior business officials to hear, so that they can assist in making a tactical decision based on real-world risk/benefit analysis rather than blindly following the advice of the attorneys who might be chasing the ghost of following a course that has 'zero risk'."

Davis' comments probably were made before the SEC's latest regulation on disclosure. Such a limited communications strategy would probably require careful analysis before execution by a publicly held company in a material situation.

Bernick's approach is more restrained and makes some useful recommendations about the role of attorneys in the crisis situation. He suggests that lawyers could:

• Articulate the appropriate standard for the company's action. That standard must be high, but can incorporate important limitations. For example, defining the appropriate standard was an important aspect of the response mounted by German companies to recent claims regarding the use of forced labor during World War II.

• Identify all aspects of the problem. The broader the picture the better. This places company conduct in proper context and may dampen expectations of simple, fast solutions.

• Counsel the company to stand by individuals under attack. The failure of the enterprise should be admitted where appropriate, but the company should stand behind its people when singled out in the press or in litigation.

• Help frame a transparent process for ascertaining the facts that count on a realistic timetable. Complex problems usually become understandable in pieces and with time. Ideally, an investigation should begin by pinning down important facts that are readily accessible and announcing a process for developing additional facts reliably over a longer period of time.

• Facilitate rather than negate well-informed public relations activities. The easy antagonism of legal and public relations advice is a path to mutually assured destruction.

• Assume that all will come out. After high-visibility litigation, there will be no secrets. This has been established again and again. Liberal discovery rules, combined with perceived public interest in the litigation and the considerable financial incentives of the plaintiffs' bar, have assured that the litigation process is particularly effective in ferreting out all historical and scientific details.

Despite these two interesting and different approaches, fundamental questions about PR in the legally driven environment still follow a well-known pattern:

• Is spilling your guts an effective communications strategy?

• What does the CEO truly need from his legal and PR staff when crises occur?

• How much does the practitioner really need to know about the legal process to be an effective counselor in the crisis situation involving litigation or the potential for litigation?

• Where does privilege fit into all of this? What is it? Who has it? How do you keep it? How do you lose it?

• Can you play games like the "predicate story" under the new SEC disclosure guidelines?

For the crisis communications manager, my advice is to ignore Shakespeare. It's getting too interesting. We are going to want the lawyers around to see how all of this plays out. And, it's our partnership and collaboration with attorneys that will bring us to and keep us at the table when our strategic skills and savvy are most needed.

The comments by David M. Bernick, Esq. are excerpted from, "Corporate Crisis-The Attorney's Role," The National Journal, Monday, October 16, 2000, p. B6. The comments from Lanny J. Davis are excerpted from Reputation Management magazine, June 2000, pp. 62-64 and from Forbes magazine, November 27, 2000, pp. 80-82.

James E. Lukaszewski APR, Fellow PRSA, is chairman of The Lukaszewski Group, a consultancy specializing in litigation visibility and crisis management. 914/681-0000; www.e911.com. Copyright © 2000, James E. Lukaszewski. All rights reserved.