Crisis Management: It's Like Being Arrested

Law Practice

There are so many directions I could go with the story of the Valley Swim Club, a Philadelphia private club that admitted, then expelled, a group of local black kids from its pool. I could use it to talk about lingering racism in America. I could use it to talk about proof versus belief, and explore whether the evidence supports the proposition that the expulsion was based on race. I could use it to discuss the legal question of whether the club is sufficiently private to escape the reach of nondiscrimination laws, or the philosophical libertarian question of whether society should regulate club membership at all.

Instead, I'm going to use it to talk about crisis management.

I split my practice between criminal defense and civil litigation. Both practices — which are frequently intertwined — involve institutions suddenly finding themselves in crisis. The government has issued a grand jury subpoena for our records! Our CFO was just indicted! Someone just filed a lawsuit accusing us of fraud! We've gotten two calls from reporters asking for comment! Oh, God, they say they have a 4:00 p.m. deadline and need a response right now, or they'll write that we refused to comment!

I've found that the dangers presented by these crises — which arise from the human frailty of the participants — are remarkably similar to the dangers presented when a client gets arrested. Most people, when arrested, find themselves in the grip of an extraordinary compulsion to try to talk their way out of it, to deny or excuse or justify or minimize their conduct, to establish a human connection with the cops arresting them. In this process they blurt out all sorts of harmful nonsense — easily disproved lies that will be used to show their consciousness of guilt, equivocations and half-truths that will bite them later, dangerous admissions. Hence my consistent advice to clients (and anyone who will listen) approached by the cops — for the love of God, will you just shut up, already. You're not helping yourself by talking, and the cops are not there to help you.

My advice to clients and companies in crisis is the same — especially in the opening hours or days of the crisis. The pressure to say something, to try to staunch the public relations wound, to get their side of the story out during the same news cycle, is almost irresistible. They fear that if they don't return the call from that reporter, they'll get the dreaded "Company X refused to comment" in the paper the next day. They fear that if they don't return the call from the investigator instantly, they'll be locked in as a suspect in the government's mind. Every fiber of their being screams for immediate action.

But that's precisely the time — under enormous pressure, with nerves all jingle-jangle, and before time for reflection and investigation — where the very worst decisions are made. Hence, at the Valley Swim Club, you get a statement like this:

"There was concern that a lot of kids would change the complexion … and the atmosphere of the club," John Duesler, President of The Valley Swim Club said in a statement.

See, there's an archetypal rush-to-put-out-a-statement statement. Duesler didn't think it through, or he would have recognized what it sounded like. He didn't vet it with anyone — or if he did, they were also in the grasp of panic. He didn't take time to conduct a thorough investigation of the situation. He didn't consult with professional and detached advisers. Rather, he let the news cycle control him, and rushed out a statement. The result, predictably, was catastrophic — his use of the "complexion" and "atmosphere" code-words became the story and drove the story, and cast crippling doubt on the club's later explanations for its conduct. Those explanations were themselves questionable — how can a club not realize in advance that adding 60 kids at once to the pool with overcrowd it? — but were rendered futile by what sounded remarkably like an admission of racism.

It didn't have to happen that way. The statement "We have not had time to review and investigate the allegations, and will respond promptly when we have done so" works perfectly well. If you can't manage that, just don't return the calls. You might think that the line "Company X did not return calls for comment" looks bad in a news story the next day. But as Duesler illustrates, many of the things that will fall out of your mouth in crisis mode will sound vastly worse, and will poison everything you might want to say later after investigating, reflecting, and getting good advice. "Company X refused to comment," to the extent it is harmful, will be forgotten almost immediately. A panicked statement — or panicked action — will hang around your neck forever. And bear this in mind — if the story is going to stay in the news for multiple news cycles, you'll have other chances to comment. If, on the other hand, it's going to disappear after one news cycle, then you'll be in the clear unless you make it worse.

Slow down. Hold all calls. Call your lawyer, or your public relations company, or your priest. If necessary, go home and sleep on it. But don't say a damn thing just because the reporters or investigators are at your door screaming for you to say something. Don't say anything until you can get together in a room, write all the pros and cons of a statement on a whiteboard, and talk them out. Don't say anything until somebody who is not hyperventilating has read through your proposed statement line by line and asked, skeptically, how it helps or hurts. The reporters and investigators are not your friends. They are not demanding an immediate statement to help you. They want you to panic and blurt something newsworthy or incriminating.

Just. Shut. Up.

Last 5 posts by Ken White

9 Comments

8 Comments

  1. Windypundit  •  Jul 23, 2009 @11:52 am

    Buying a car works a little like this too. You've got the money that they want, and you're meeting in their office, so you can always just go home and come back. No matter what they say, the deal will be just as good tomorrow. So if you feel any pressure to complete the deal now, it's because they are manipulating you. And they're not doing that for your benefit.

  2. Jag  •  Jul 23, 2009 @12:38 pm

    You really need to put this on your business card:

    Front:
    In case of Emergency turn over for instructions

    Back:
    Shut.the.fuck.up.

  3. PatrickKelley  •  Jul 23, 2009 @12:48 pm

    Bottom line, the club members balked at the notion. There might have been a "pissing in the pool" issue at work here too, if just the thought of the possibility of it. Which, well, that would certainly change the "complexion and atmosphere", wouldn't it?

  4. Linus  •  Jul 23, 2009 @1:49 pm

    Something that has helped me to explain this principle to clients in my practice is that I have felt this panic myself. I remember distinctly the paranoia, the rapid heartbeats, the monster butterflies, each one screaming "TELL THEM YOU DIDN'T DO IT, TELL THEM YOU DIDN'T DO IT!!" (as an unrelated matter of fact, I didn't do it.) It takes a mighty act of will to take some deep breaths and realize that no, you're not actually on the cusp of being shot, and that yes, tomorrow will work just fine to deal substantively with the crap. And in the meantime, you can and should call an attorney.

    I've also shamelessly plagiarized from Ken's earlier post about it when talking to clients. So, you know, that's also helped. :)

  5. jack fate  •  Jul 23, 2009 @4:27 pm

    The problem with a lot of racists – overt and/or subtle, is that they tend to not be that bright to begin with. Their bigotry is probably defensible in a legal sense, but that John Duesler's knee-jerk response involved known "code words," that have since replaced the slightly more colorful descriptives of old, says a lot about the origins and motivations of Mr. Duesler and the members of the Valley Swim Club than their lack of sound and smart legal advice.

    (BTW, "SHUTUPSHUTUPSHUTUPSHUTUP" was the first post I ever read on this blog – redirected from Reason.com, I think. Been a regular reader ever since. Even when I want to punch Ken. in the dick after reading a post I vehemently disagree with.)

  6. Rich Rostrom  •  Jul 23, 2009 @6:00 pm

    Taking the devil's advocate side:

    Yes, one may say something really stupid in the grip of panic. Or maybe not. That's a risk, not a certainty.

    On the other side, there is a risk that if one waits 12 or 24 hours to respond to the charge, the hostile interpretation will have already filled public mindspace. Failure to respond will be seen by many as tantamount to agreement.

    There's also the problem that once the story stops being "hot", it will stop being reported. A beautifully phrased and highly effective counterstatement that doesn't get "printed" is not much use. This of course is more likely in a "minor" case that no one cares about the next day. There's a risk that one's "brand" will be irrevocably associated with the initial charge.

    However, it's still a very good idea to stop, think, calm down, and make no statements without review. An hour won't kill anybody, as a rule.

  7. Windypundit  •  Jul 23, 2009 @11:25 pm

    If a member of the press calls you for a statement, ask the nice reporter what his deadline is, then tell him you'll call back in plenty of time. Now hang up and spend some time thinking about what you want to say.

  8. SG  •  Jul 24, 2009 @5:34 pm

    Although I was converted to the "STFU" doctrine by reading several attorneys advocating it, I gotta agree with Rich that in the case of a company in a public scandal that may be dangerous, too. Ken's arguments sure are persuasive, but take for instance the recent outcry against an alleged discrimination on Amazon.com against books related one way or another to homosexuality. IIRC it appeared on a friday. Amazon did not respond before next monday. During the week-end there was ample time for all kinds of speculation and finger-pointing on the 'net…

    Perhaps the nature of the individual/company involved is instrumental here. A swim club is indeed unlikely to suffer much from any kind of internet-age bad buzz online. Amazon, on the contrary, is probably quite vulnerable to that (though they do not seem to have suffered that much, in the end).

    So yeah, for most of us that are neither giants of online sales or president of the US, it's probably better to just STFU. A tight-lipped John Doe must be forgotten more quickly than a talkative, panicked John Doe.

    BTW, great commentary, as always. I wish more journalists wrote like that.

1 Trackback