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
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- Hillary Clinton, the Sixth Amendment, and Legal Ethics - October 10th, 2016
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