Monday, September 23, 2013

Guidelines for Working with Attorneys

Wisdom from the Crisis Guru # 994
From Chapter 9, pages 300-304, of “Lukaszewski on Crisis Communication, What Your CEO Needs to Know About Reputation Risk and Crisis Management” by James E. Lukaszewski, ABC, APR, Fellow PRSA

9.5.1 Some General Rules
  1. Establish a litigation communication strategy that includes attorneys. Prohibit all attorneys from talking to reporters, even to take messages, unless specifically authorized and trained to do so. Reporter calls should be forwarded automatically to the appropriate communications source for the case. Reporters always call the attorneys. They know attorneys love to talk about the law. The problem with any other strategy is that, whatever information the reporters gather from the attorneys only gives them a significant tool to get information from others.
  2. If you are the defendant, the attorneys work for you. You tell them what to do. You take their advice and listen carefully, but follow your bellybutton, experience, and instincts on how to get things done, and what the priorities really are. The lawyer, who is your advisor, must work within the parameters you set. It is your bus. There is no need to apologize for anything you do, even if it’s really stupid. Rank has its privileges (RHIP), and clients have these same privileges.
  3. They are required to be generally knowledgeable. Here are some examples from a recent conversation in which the lawyers mentioned topics they felt they needed to control, when, in fact, these topics were far more in communication territory:
    1. Activist issues: They are largely a communications problem.
    2. Customer concerns: They are client problems far more than lawyer problems.
    3. Educating the community is mainly a communication concern.
    4. Public opinion and the court of public opinion are in the domain of communications.
  4. Listen carefully and push back. Attorneys are expert questioners, something that is implicit to their nature. Some questions need answering; lots are less relevant to the situation at hand or can be set aside to a later time. Sometimes this questioning is just a controlling behavior. Questions can be extremely helpful and penetrating, but they can also be a tool used to keep the herd moving in a given direction or to override other voices. Listen carefully and push back when it is appropriate to let other voices get through.
  5. The goal remains settlement (my non-legal opinion only). Unless fraud, deceit, or some other shenanigans on the part of the plaintiffs (which does happen) can be proven, the case is going to settle long before it is litigated. One ongoing question to ask the lawyers as the case proceeds is: “What’s your assessment of the real chances of litigation success versus going for settlement right now?” If you prepare only for trial, the case can drag on for a long, long time and you may indeed end up going to trial, whether or not a trial will be the best result for your case. 

  6. Settlement talks are always supported by the court. My recommendation is always to hire a separate law firm to manage the settlement, since litigation does have to proceed until the matter is resolved. I always have contended that the two strategies are incompatible in the same law firm, no matter how large that firm happens to be. There is an inherent conflict between the litigator and the negotiator.
  7. Remember the power of victims. The longer you wait to contact the victims directly to find out what they really want – or worse yet, if we attack them – the tougher settlement becomes. The way to work this situation is to move ahead quickly rather than delay, hold back, and over-lawyer the situation. When you have a 20-day deadline, meet it in ten. When you have the option to short-circuit the process in a way that might benefit the victims, move quickly. Moving fast simply denies the plaintiffs the hang time they might use to ruminate, to think things up that are negative, or to give the lawyers and their media contacts time to dream up more questions. With increased time, the visibility opportunity for the plaintiffs tends to expand while the defendant may begin to look desperate. None of this matters, of course – it’s the settlement that matters.
  8. When you are given a time estimate by your law firm to get work done, press to make things happen faster. If the attorneys forecast one or two months to accomplish something, it will more likely take two or three extra weeks past that deadline estimate. You have to keep the pressure on to get work done. If you are familiar with Parkinson’s Law (Cyril Northcote Parkinson’s cynical observation that work will expand so as to fill tie time available for its completion), you may understand why I saw that Parkinson may have been an attorney. Beyond the legal issues, you are going to be faced with a number of circumstances in which speed will be of the essence, e.g., activist action, bad news, employee or community concerns, explosive visibility. For these situations, turning on a dime is essential. Most “turning on a dime” situations start as communications issues. Settlement activity can cause this urgent “turn on a dime” atmosphere as well.

The Litigation Process, a Roadmap

These two flowcharts work together. The civil litigation court procedure map is designed to illustrate how the case gets started and the general steps in a civil trial.

The criminal court procedure map, which follows, fills in much of the detail about the trial itself. Each is quite helpful in assisting a novice in understanding what the next steps are in a trial setting. The most important elements to remember about the trial setting are these:

  1. The judge is privy to all information relevant to the trial, whether or not the information is ultimately introduced into the case.
  2. Many of the motions that occur before the trial have to do with admitting or denying admittance of evidence and information related to the prosecution, plaintiffs’ or defendants’ case. It’s a very interesting process to see how information or knowledge is included or excluded from the deliberations of the judge or jury.
  3. Generally, the entire trial is planned out from beginning to end before the trial ever begins.
  4. Even jury instructions are largely completed before the trial itself begins.




By James E. Lukaszewski

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James E. Lukaszewski, ABC, APR, Fellow PRSA is the author of Lukaszewski on Crisis Communication, What Your CEO Needs to Know About Reputation Risk and Crisis Management, available now at Amazon.com.

Learn more from Jim by attending one of his many upcoming seminars or webinars. On September 27th, 2013, you can hear Jim talk about Crisis Plans in 10 Steps: Proven Templates and PR Best Practices for Managing Crises in the Digital Era, a 90-minute webinar with Bulldog Reporter.

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