So to follow up on yesterday’s post, how should you handle a Qualcomm situation? Of course, there is no “one size fits all” answer, but it seemed to me that this situation was most analogous to an organizational crisis. As a result, I looked at a number of crisis management articles and books for my presentation, and I settled on two in particular: Former Medtronics CEO and Harvard Business School professor Bill George‘s “7 Lessons for Leading in Crisis” and British consultant Anthony Holmes‘ “7 Principles of Crisis Management.” I incorporated some of their advice into the suggestions below. Although some of the suggestions are a matter of common sense, they may become obscured in the fog of litigation and therefore bear repeating.
1. Identify The Scope of the Breakdown
A client must first acquire a full understanding of the scope of the problem. Is it confined to one person or have a number of employees failed to gather or produce the information at issue? Where was the breakdown? Is it the result of an honest mistake or does it appear to be an effort at concealment? These and other questions need to be addressed immediately.
From this point forward, one should expect that each and every step that is being taken will be second-guessed or evaluated by the court, and most certainly by opposing counsel. This may mean having to revisit the search process from the very beginning. As the opposing side and the court may assume the worst about the conduct of the individuals involved, to protect everyone’s interests, it is important to demonstrate that a thorough and prompt follow through has been conducted. Depending on the severity of the breach in question, it may make sense for the investigation or search to be handled by new individuals, or in a very serious case, by another law firm. If there are concerns that the employees in question were involved in the alleged misconduct, this will be essential. Even if they are not suspected of misbehavior, having a fresh set of eyes or someone who is not emotionally engaged or committed to prior events will allow for a thorough and dispassionate search to be undertaken.
2. Engage an “Ombudsman” – Don’t Become Atlas
The impulse to minimize the situation or postpone an evaluation of the mistake is a powerful one.
Probably for this reason, Holmes’ first principle is to “obtain multiple opinions in the decision making process.” Whatever the scope of the problem, reaching out to a trusted or objective advisor, whether it is the firm or company’s general counsel, or a mentor, outside counsel or trusted consultant on whom a decision-maker has relied upon in a past, is critical. This is particularly important in a crisis, as there is a tendency to turn inward. George has characterized this as allowing yourself to become “Atlas,” to carry the weight of the organization on your shoulders. Focus on remedying the problem, not the organizational or personal failures that may have led to the present crisis.
Again, using Qualcomm as an illustration, the trial team in that case would have been well served to vet the discovery of the emails with a lawyer unconnected with the case. Perhaps that objective eye might have helped them appreciate the enormity of the problem that they were facing.
This ability to communicate with objective advisors is complicated by the crucible of litigation. For that reason, it is important to make sure that the privilege is maintained during the course of this dialogue.
3. Maintain a United Front
Dwelling upon the breakdown in communication or mistakes that contributed to the present problem will not improve the situation. Whatever the degree of culpability, avoid the temptation for finger-pointing. It is not only counter-productive as it distracts from the task at hand but it reinforces that someone is seriously and truly at fault and simply allows the opposing party and the court the opportunity to allocate blame. It may also embolden an adversary to pursue a “divide and conquer” strategy that will only compound the problem.
4. Reduce Time Pressures
If time pressure is a factor, to the extent possible, seek an extension of any pending due dates that may compromise the decision-making process. This will permit a full investigation, the opportunity to consult with an ombudsman and the opportunity to remedy the situation.
5. The Decision to Come Clean
By this point, you will have conducted your investigation, you will have a full understanding of the severity of the problem, you will have conferred with all decision-makers, and you will be ready to address what happened. Whether the situation has been brought to your attention by the opposing party or whether it is a situation that your organization has discovered on its own, there will likely have to be a reckoning with a court as to what occurred.
Don’t allow inconsistent positions previously taken to influence the decision. In Qualcomm, it appears that the trial team and client may have disregarded the import of the emails because it challenged their fixed assumptions about the case and might have been fatal to their claims. Rather than looking at the case with a fresh eye and determining what the consequences might be by electing not to disclose, they put their careers at risk.
Gather and present evidence of efforts to remedy the situation. Although a subjective or good faith mistake is not a defense, it is nevertheless important to allay any argument that the client has flouted or disregarded the court’s authority. Consequently, it would be prudent to be prepared to present evidence to the court of other aspects of compliance and the steps that have been taken since learning of the problem to remedy any failure to provide the information.
Resistance is Futile. One need only review the Qualcomm decision to sense the irritation, if not outright anger, of the court at Qualcomm’s efforts to justify its conduct. Whatever the merits of a defense addressing the underlying conduct giving rise to the court’s review, the best approach may be to accept responsibility, provide transparency to the court about what took place and about the investigation, and assure the court that effective measures have been undertaken to avoid future problems.
Don’t Underestimate the Power of an Apology. The idea of an apology or mea culpa is anathema to many in litigation. However, few approaches defuse the emotional force of a contentious situation more than a genuine expression of condolence and acceptance of responsibility. Some consultants in the crisis management community have long advocated the value of an apology in litigation; as Jim Lukaszewski of the Crisis Guru Blog wrote:
Many in the legal profession remain against aggressive apologizing, claiming that it will increase lawsuits and payouts. But years of evidence is accumulating that prompt acknowledgement coupled with clear apologies and sensible offers of settlement can eliminate the litigation phase of legal interaction between victim and perpetrator, in favor of an attitude of settlement.
That same rationale may apply in these situations. Although the apology may have a ripple effect on the rest of the litigation or perhaps other litigation, that concern may be akin to worrying about closing the barn door after the horse has departed. If the violations in question are serious, an apology may go a long way to alleviating the court’s concerns about your client’s good faith and the unlikelihood of future violations.
6. Never Waste a Good Crisis
Every crisis should serve as a catalyst to improve and strengthen an organization. See it as an opportunity to implement better controls and strengthen internal communication.
In sum, as a crisis can emerge in any number of unexpected ways, navigating through these troubled waters requires a clear head, the opportunity to reflect, and a willingness to take an unconventional approach.