Evan N. Zeppos, Zeppos & Associates; Jeffrey P. Clark, Reinhart Boerner Van Deuren, s.c.; Charles B. Palmer, Michael Best & Friedrich, LLP; Nathan A. Fishbach, Whyte Hirschboeck Dudek, S.C.; and David B. Kern, Quarles & Brady, LLP.
Natural disasters, OSHA citations, accidental fatalities, or corporate misdeeds — those are just a few of the unexpected events that could leave a business client in crisis. Lawyers can play an important role before and during a crisis to ensure that their clients effectively navigate the stormy waters.
Wisconsin Law Journal editor Tony Anderson met with a panel of four lawyers and a public relations specialist, who have helped their clients prepare for and deal with a variety of crisis situations. What follows is part one of their roundtable discussion.
WISCONSIN LAW JOURNAL: Whether dealing with a fatality or a corporate officer who gets in trouble and suddenly the corporation is trying to figure out how to deal with a crisis situation, what do you see as the first response for the lawyer? What is the lawyer’s role in helping clients deal with crisis management?
Jeffrey P. Clark
Jeffrey P. Clark is a shareholder with Reinhart Boerner Van Deuren, s.c. His practice encompasses civil litigation, including environmental, health and safety litigation, administrative proceedings and audits, and has recently evolved to add business disaster prevention and recovery services as well.
Clark actively participates in professional organizations that work to prevent and manage community emergencies and disasters. Clark represents manufacturers, employers, healthcare organizations, real estate developers, contractors, and individuals. He has represented clients before the Department of Natural Resources, the U.S. Environmental Protection Agency, the Occupational Safety and Health Administration (OSHA), state courts in Wisconsin and Colorado, and federal trial and appellate courts nationwide.
Clark received his law degree from the University of Wisconsin in 1979.
Nathan A. Fishbach
Nathan A. Fishbach is a shareholder in the Milwaukee office of Whyte Hirschboeck Dudek, S.C. His practice is in general litigation, concentrating on complex civil and white collar matters. He has handled a wide variety of matters since receiving his J.D. from Villanova University in 1977. He spent 13 years in the United States Attorney’s Office for the Eastern District of Wisconsin, from 1980 until 1993. Fishbach’s practice areas include Environmental, Health & Safety, Health Care Law, HIPAA Practice, Business Litigation and White Collar Compliance Defense.
He co-authored with Professor Jay Grenig "Wisconsin Practice: Civil Procedure Forms," a three-volume book, for Thompson-West. They are currently updating "Wisconsin Practice: Methods of Practice."
David B. Kern
David Kern, a partner at Quarles & Brady, LLP, practices labor and employment law, and chairs the firm’s Labor and Employment practice group. His practice includes an emphasis on discrimination litigation, employer counseling and collective bargaining, client representation in state and federal courts and before the Wisconsin Equal Rights Division, the Equal Employment Opportunity Commission, the National Labor Relations Board, and other state and federal agencies.
Kern has written and spoken on a variety of employment-related issues. Among other things, he co-authored, "Wisconsin Employment Law," for the State Bar in 1994, and worked on supplements and subsequent editions from 1995 to the present.
Kern is a 1979 graduate of the University of Michigan School of Law.
Charles B. Palmer
Chuck B. Palmer is a partner and a member of the Employment Relations Practice Group at Michael Best & Friedrich, LLP. His practice focuses on labor negotiations, employment litigation, Equal Employment Opportunity law, wage and hour, restrictive covenants, independent contractor and employment contracts, workers compensation and Occupational Safety and Health Administration laws and regulations. Prior to joining the firm, he was a founding shareholder of Palmer & Finerty, S.C.
Palmer has handled many OSHA citation cases, including fatality cases. And he has led labor negotiations for high profile employers and has led clients through union corporate campaigns.
Palmer received his law degree from Marquette University Law School in 1990.
Evan N. Zeppos
Evan Zeppos, APR, founded Zeppos & Associates in 1994. Zeppos has more than two decades of experience as a public relations counselor. Zeppos has a blend of national, state and local involvement on major issues management and public relations challenges and opportunities.
Previous and current a
NATHAN A. FISHBACH: It would seem that the first 24 hours of any crisis is the most important. At that point, you frame the issue in the public’s mind and, to some extent, in the regulator’s mind. At that point, it’s the job of the attorney to take control of the situation, determine what is known and what is not known, and try to structure the appropriate response based on very limited facts.
CHARLES B. PALMER: If a lawyer can be involved early on as a company is setting up a crisis management program, I find that to be very valuable when creating the team that will respond to crisis situations. No one can predict exactly what may happen, but training and planning can serve as a resource when a crisis does occur. If you’ve thought about it ahead of time, you can be more effective.
Stress is a big killer of common sense. If you’re stressed out, you don’t necessarily respond as you normally would. Going into a crisis unprepared can oftentimes have bad results, so if the lawyer can help set up the crisis program early on, that can be very helpful. Look at what the company’s potential crisis might be and try to guide them through planning for that, so that you can prevent legal liabilities, communication errors with the press, loss of credibility, and so forth.
JEFFREY P. CLARK: I work on some task forces and committees, including the Waukesha County Emergency Planning Preparedness Groups they take an all-hazards approach. The all-hazards approach looks at the risks that a company, a business, an entity, or an organization might face. You basically do a risk assessment, and you prioritize what those risks might be. The key, as everyone has been saying here, is to be prepared in advance of the crisis.
What I see businesses beginning to do now is to develop disaster recovery. Business continuity is the latest way to look at that. Bring some of the same business planning tools to work to handle a crisis or a disaster in advance of the crisis striking. They’re good at analyzing problems and solving problems and dealing with issues and prioritizing resources and developing action plans.
Bring that same focus to bear on what can generate a crisis or a disaster. Pull key stakeholders into the process as you do your planning and then become very focused and be disciplined, establish objectives, try to measure your progress in meeting those objectives. Then you do drills, and you do exercises.
I recently observed a local business in town which is doing precisely this. Their particular scenario involved a tornado striking the downtown area and affecting their offices where they were basically put out of business, needed to evacuate their office space, loss of power to the building, sustained some injury to their employees.
They looked at how they would recover from that situation, and how they would work with vendors
The point is to develop this plan in advance, sort of think about who your spokespersons might be. You want to speak with one voice during a crisis and not have multiple voices giving inconsistent information out. You literally think about where to operate an emergency command center. Who will be your incident commander?
That may not be the CEO of the organization. Sometimes it’s not best to have your CEO as your spokesperson.
Businesses, by just bringing some real focus to this in advance can really help to be prepared, to be nimble on their feet when the crisis happens and not to be responding in a chaotic fashion.
EVAN N. ZEPPOS: Let me go back to something Nathan mentioned and put it out in front of the group because it shows one of the places where the initial tug comes between lawyers and their clients and communicating, whether it’s internally or externally.
Nathan said in the first 24 hours you define a crisis. I wish those days were still here. Twenty-four hours to deal with something? That would be great. The fact of the matter is, you have literally minutes to deal with some of these situations. Now, it’s such a tightly compressed timeframe
Speed is of the essence in dealing with these matters. It goes back to something Chuck and Jeff were talking about before. You do have to have plans in place. And it’s absolutely essential for companies to have a crisis communications plan.
So many companies will have a recovery plan, an ongoing business plan, a first aid plan, and things like that. But we suggest to counsel that, if you aren’t looking at the communications aspect of it separately, you’re leaving a big gap. I think the reason it’s such a big gap is because what’s on the line for the company is not so much that a tornado hit you or that you had an alleged inappropriate release into the Onion Creek from your company’s wastewater treatment facility, but it’s how you handle the situation.
Because you only get a little bit of time to be perceived as how you’re going to handle it, having something on paper ready to go immediately that might be 85 percent on mark so that you do have a little time to take the 85 and add the additional 15 and get a hundred percent. I’m on point now, that’s where you really want to be.
The challenge further is that lawyers by their nature are trained not to have to do that. They want more facts. "We just got this lawsuit. We can’t say anything about it." Well, it’s 3:30 and it’s going to be on the news in 90 minutes, whether you like it or not.
"We won’t have the facts until tomorrow." By tomorrow your brand is damaged in the court of public opinion. What you’re really dealing with is the brand identity, the equity of your company and not just in a financial way. How do your vendors see you? How do your customers see you? How do your business associates see you?
How do your employees see you, how do your neighbors see you, how do the families of employees see you? Those are the things that are really on the line.
DAVID B. KERN: I also think that lawyers by their nature tend to issue-spot, which is a positive in terms of crisis planning and crisis management. But our focus is fairly narrow. We think about legal issues, legal liability, upside and downside risks. That’s why I think effective crisis management really needs a team approach. We can bring a lot to the table as attorneys. But we need someone bringing different perspectives two heads or three heads or four heads are always better than one when it comes to anticipating and assessing the real risk and how you’re going to manage it.
CLARK: I think a key here is the three C’s. One is communication, which we’ve been talking about. The second is cooperation, and the third is collaboration. The type of risks that businesses in our society at large faces right now requires those things, that we do communicate effectively and that we get out of our silo approach.
Different silos will prepare for different contingencies or have different areas of responsibility. We have to get the silos to integrate and connect. I find many times as a lawyer I’ll be in some of these planning meetings at the community level with businesses and public sector agencies, and I think a lot of our legal skills and the issue-spotting that Dave talked about serves us well. We can see the big picture.
We do need to collaborate and we do need to work with people in a cooperative fashion. I’m looking at a business continuation plan that our law firm has developed. Right here at the top is "Have your media statement prepared. Who’s in your command center? Who’s going to be communicating with the media and the key stakeholders?" Those could be your clients. Those could be your suppliers, not just the media.
Someone with Evan’s background and experience in dealing with the media and effectively communicating should be a key member of the team. The whole spirit should be one of cooperation and collaboration and pulling the different resources together. And the team needs to meet in advance of the crisis.
You can never predict the exact nature of the crisis, but it helps if your team is used to working together. There are some things that technology now helps us with, for example, a calling tree at our law firm. We have the key emergency numbers of our stakeholders, outside and inside resources, on a card. We have a telephone conference bridge. So if an emergency or a disaster occurs, the key players in our firm will be able to get together in real time on a telephone conference bridge and talk through issues. That is a key to effective communication.
WLJ: When helping a client put together a crisis management team, who needs to be a part of that team?
CLARK: For any plan to be effective, management of the organization has to have a stake in it, has to support it. If management is not supporting the effort, the rank and file will quickly learn that and it probably won’t be effective.
Others include human resources, members of your executive team, information resources, telecommunication, your voice data people, people who operate your facilities. These are the type of people that a business typically will want to have at the table as they put their crisis management team together.
FISHBACH: One of the things that I’ve learned from working with Evan is that lawyers are very often concerned about the court of law, but they are not concerned about the court of public opinion. What a public affairs consultant brings to the table is how to focus the court of public opinion in any given situation.
What I’ve found is that when you’re discussing in terms of either a plan or once a crisis occurs, the issue you face is where do you want to be in terms of your stakeholders 30 days, 60 days, 90 days out. Once you focus on that issue, then a plan falls into place on how you react to the crisis.
Frequently corporations have two approaches. One is "No comment." The other approach is they go through a whole litany of what happened and their anger at what happened. Neither approach is the appropriate one. What the corporation has to do is determine a way to state to their stakeholders what they’re going to do to rectify the issue without looking like they’re stonewalling the situation or saying something that you really have no knowledge about.
ZEPPOS: Let me just mention several other components that I think ought to be in a crisis management team. And I’ll use it to draw the distinction between a crisis management plan and a crisis communications plan. When you say "management," I see ownership … someone who can make the decisions. Because the decisions have to be made promptly.
Number two, there has to be someone from an operations standpoint. If you’re running a company that’s making dipsticks, you need to know who’s running the plant, so that you take control of the facility operationally.
Number three, you have to have someone who’s got a strong legal background in it. I don’t say that because I’m sitting here with four lawyers.
Finally, if you don’t have someone who’s got a communications orientation, I think you’re going to find big gaps in the way you approach it. I’ve had the honor to work both with Nathan and with Dave on projects. When you have lawyers who start to think like PR people, but know they’re not and you have PR people who start to understand how lawyers have to approach things, but know they’re not lawyers, that’s the situation you really want.
So if I’m in a situation, I say, "Jeff, what documents do you have to turn over which ones are public?" Because I know those are the ones that the media’s going to get access to, or an anti-stakeholder group is going to get access to, or government officials are going to get access to. I love it when a lawyer says, "Here are the documents we have to submit next week." So I can see in advance, if you’re dealing with an evolving situation, what it’s going to be like.
In a crisis, one of the cardinal rules is don’t make short-term decisions. Think mid-term, think long-term, so you’re dealing with something and in 30 days your brand is still protected. The integrity of your company is
there. Your employees and associates say, "Hey, we came through a very difficult situation badly but we’re better for it today."
Those are the types of working relationships that you’re really trying to have. Whether it’s Chuck dealing with an OSHA investigation or a death on site, or Nathan dealing with an indictment on a criminal matter of a corporation or an individual within a corporation, all of those things come into play.
PALMER: I think some of your big stakeholders in the process are your employees. How you handle the employee communication relationship in the face of a crisis can be a key to the survival of your company. Employees make a pretty quick judgment in these crisis situations as to whether this is a place they want to be for the rest of their careers or not.
One of the players that I like to incorporate into a crisis management plan is a key person in your employee-assistance program or a clinical psychologist, someone that can help counsel you about dealing with the employees.
You get on a job site in a fatality situation, and there’s a huge impact on the employees who were working with the individual. One of the employees may really think that they’re the one who caused the fatality. And they’re going to be interviewed by the press. They’re going to be talking to law enforcement. They’re going to be talking to government officials. They can have a significant impact on your company. And dealing with those individuals and those around them can be so important.
KERN: Looking at who ought to be the players on a crisis management team, I do think information technology is absolutely key. In the older world of 20 years ago, that wasn’t such an important element. But, I’ve got clients that will set up Web sites with real-time information to stakeholders. It’s IT person who’s got to protect the organization from spam or other interference of an electronic nature. That instantaneous communication vehicle is so important that I think those folks have got to be on the ground floor in terms of any planning.
Having said that, I think it’s always important to bear in mind that the public’s memory is just incredibly short. When you’re planning a message to stakeholders, you don’t need to say too much. You don’t have to lay out the brief in your press release. You need to say one, or two, or three succinct points. That’s what the reporter wants. That’s what’s going to end up in the paper. That’s what people will read.
FISHBACH: One of the things that a public relations consultant brings to the table that we as lawyers have difficulty recognizing sometimes is what phrase from a document will be of interest to the public or the reporters as opposed to the lawyers. The lawyer will read, we deny liability. When, in reality, a public relations consultant will look at the document and see all the nuances that harm the client’s image in the public or with the regulators. They can read a document and have a different interpretation of the document that than we would have as lawyers.
ZEPPOS: It’s not necessarily that reporters are trying to get companies. I don’t subscribe to that view. You understand that reporters have jobs to do. They’re going to get their job done, and sometimes they have to be a little pushy and aggressive to get it done.
People get a little buzzed and hyper and the adrenaline kicks in during a crisis. Reporters do too, so do vendors, and so do other stakeholders. You have to be cognizant of the fact that everyone’s moved up four or five levels. If you have that preparation and training, whether it’s running a drill or running media training or a crisis communications training, those are the things that make people feel more comfortable.
FISHBACH: I represent many municipalities and publicly traded corporations. In those instances or even if they’re not publicly traded, the public still deals with the corporation on an ongoing basis. The public expects openness.
You have to try to strive for openness in a way that will not harm your case legally but, on the other hand, provide the information so that business can go on. Very often the business or the municipality feels personally attacked by the whole thing. What I tell them is, "This happens to everyone." It’s inevitable that a municipality or a corporation will have a crisis. The issue is not that you have the crisis, but how you react to it.
WLJ: Given the immediacy of the demand for information, how do you facilitate collection and presentation of the facts in as timely a manner as possible?
CLARK: One aspect is to try to have someone who’s going to deal with the communication of that information. I think it’s normally helpful to have one person do that or a couple people who are really integrating their efforts, so as not to speak with multiple voices. Candor. Tell the truth. If you don’t know an answer, don’t be afraid to say you don’t know, but you’re investigating.
KERN: I agree. I do think without sounding like I’m creating full employment for lawyers it’s important for the lawyer to be in on whatever decision is made at the moment about whether to go public with this message and whether it is appropriate. That’s partly because some of these issues are counterintuitive. If you get involved in a whistle-blower sort of a situation, an employer’s typical reaction may be, "This person is disloyal, this person has attacked the organization, we need to show in a strong way that we’re striking back."
The exact opposite may be required. They should say, "We respect this employee’s right to raise this issue; we take these issues seriously; and we will investigate and we’ll resolve it properly for the protection of life, property, whatever it might be." Employers don’t sometimes come naturally to that sort of a perspective.
FISHBACH: Depending on the situation, what I try to do is show a very proactive stance. For instance, I’m going to hire a former FBI agent or former IRS agent to review the matter. That shows openness. It shows a willingness to review the situation. It shows we’re moving forward. You’re not saying "no comment." You’re not denying anything. It depends upon the given facts and circumstances, because once you have a review, other issues can arise. But in terms of trying to move the matter forward, that’s one approach and it’s worked very well.
ZEPPOS: I will
tell you and this has got to be as clear as it can be "no comment" is a loser. "No comment" means you’re guilty. "No comment" tells the press, dig harder. "No comment" will be held against you in a court of public opinion for a long time.
People have to understand, cliche as it is, we do live in an information age. There is instantaneous communication. If in the first 20 minutes you’re asked for a comment on charges of an ex-employee who’s a whistle-blower and you say, "No comment," the reporter will walk away and he’ll post it on the Web site "The company had no immediate comment." In 30 minutes it’s on the Bloomberg Wire; "The company had no comment." All the analysts are reading it and saying, "Oh, the company is in the bunker."
In 45 minutes you get a report that you’re monitoring and saying, "Hey, we’re out there with no comment. We have to change that right away and quickly." Once it’s on the page, you may still get hit with, "The company initially declined comment but later said…" Now, you’re three-quarters guilty.
CLARK: I agree with that. But I think there’s one issue we should touch on. When we bring nonlawyer experts or consultants such as yourself into the process which I sense a consensus here what do we do with the famous attorney-client communication privilege? What do we do with attorney work product and so forth?
How do we structure the relationship with a consultant such as Evan? I’d be interested in a perspective from Nathan who used to be a federal prosecutor. At one point he’d be looking for smoking guns like that and waivers of privilege and so forth, and now he’s representing the business community.
FISHBACH: There have been cases relating to whether or not there’s a privilege between an attorney and a public relations consultant. Quite frankly, they’re a mixed bag right now. In reviewing the situation, the attorney has to be very cognizant of the fact that whatever is said to the public relations consultant by either you or your client might be deemed either a waiver or a privilege.
You have to be very circumspect as to how much discussion there is about the underlying problem. The question is how you frame the issue going forward as opposed to what happened in the past.
So, obviously, you have to be very careful when you retain a public relations consultant. What I generally do when retaining a public relations consultant, my law firm retains him, not the client, in the same way that an investigator might be retained by the attorney.
CLARK: Especially where litigation is a prospect. We can say it’s anticipated and structure it as attorney work product perhaps. That’s not a guarantee, but at least you try to be sensitive to that concern.
FISHBACH: You have to be sensitive that anything you provide might become public. Very frequently when Evan’s brought into the situation, the documents are already public. So he’s working from documents that either will be released to the public shortly or have been released. So there’s less of a concern that there might be an inadvertent disclosure.
KERN: Although my sense, Evan, is that there are probably times actually with some regularity where you are excluded from discussions between the control group and attorneys. And probably, for your own sake, you would prefer to be excluded and then be told what you know you can go public with.
ZEPPOS: You have to start from the standpoint that the law is unclear. I’ve tried to follow the cases and look at them, and they go back and forth. Some of it has tended to favor protection of the relationship. Some of it has torn it right down. I think you still have to be careful of the issue, period
It’s a challenge in every step of the way. I’m very cognizant of it. And a lawyer might say, "I think I need to show you a very sensitive document about this." And I will say, "Are you sure you should?" I’m as cognizant of it as any of you. "Do you want to just talk to me about it, kind of give me a sense of what’s really there so at least I can counsel and advise from a communications standpoint?"
FISHBACH: One of the values that a public relations consultant brings to the table is you can show him a document that is public and he can tell you the 20 questions that come to his mind immediately. They’re questions that we, as lawyers, might not even think about.
ZEPPOS: Part of our job is to say, "Here’s what you’re going to face when this becomes public. Here’s how your employees are going to react. Here’s how your customers are going to see this. If this goes into the newspaper, here’s how the story will get played. Here’s how it will get written. Here’s what we might be required to do from a response standpoint." That’s the type of thing that allows lawyers to give even better advice to their clients moving forward with a situation.
Tony Anderson can be reached by email.