Crisis Management: The Legal Perspective
By Fred Walter, Esq.
[Reprinted from Safety Professional March 2003]
As soon as a crisis occurs, investigations to assign responsibility begin. Many agencies and interest groups will ask the fundamental questions of who, what, when, where and why. Local agencies such as fire and police will investigate. The media will assert the public’s right to know. Regional and state agencies will arrive as well. And don’t forget about the insurance companies and attorneys for any injured workers and third parties. Clearly, managers’ corporate and personal vulnerability to civil and criminal litigation and administrative penalties is greater than ever before.
Without early attention to the organization of crisis response, a company’s SH&E professional’s goals may quickly diverge from its attorney’s. SH&E professionals and other experts are trained to analyze root causes of incidents. To do so, they immediately start gathering facts, photographs, diagrams, documents and witness statements. They put working hypotheses about what might have occurred (sometimes called “cut sets” ) on paper, to be revised as new information is received. They summarize findings and likely scenarios of cause in notes or memos. Their purpose is to say, with some degree of certainty and as soon as possible, what caused the event and how systems or procedures should be changed to prevent similar occurrences. Their training also instills in them a collegial spirit that supports the ethic of sharing information so that others may use it to prevent similar events.
All of this is good. All of this also makes attorneys nervous. In the uncertainty of the aftermath, management hires attorneys to do two things: 1) inform the company of its potential liabilities, and the pros and cons of alternative courses of action; and 2) limit, to the extent possible, the company’s potential liability in any forum in which it might find itself. To do this, attorneys are trained — much like SH&E professionals — to learn as much as they can as soon as possible. They also analyze all evidence retrieved. But they ask different questions. Is this fact friend or foe? How could this fact be used against the client? How soon am I likely to be required to disclose this document/statement/photograph/lab report to a foe?
Attorneys are also conditioned to not share with others until they must. They are taught that the party which controls information the longest usually gets the best result. This does not mean withholding or burying information forever; modern discovery rules prevent that. Instead, attorneys play a tactical game, protecting clients by maintaining control over the rate of the release of information and the context in which it is disclosed. Unless the information gathered in an investigation can be effectively protected, everything that is gathered, from photographs to lab samples, from written statements to brainstorming notes speculating why the event occurred, is fair game for subpoena in any later court litigation or administrative hearing process.
Two legal privileges against disclosure help attorneys and clients protect information developed during an investigation. The attorney work product privilege protects information developed by an attorney and his/her investigators (including SH&E professionals). While not fully effective, this privilege can usually protect an investigator’s written notes and impressions. The attorney/client communication privilege protects exchanges of information between these two parties and their affiliated representatives.
Management attorneys must be especially sensitive about signed witness statements. While such statements created just after a traumatic event might preserve the writer’s memory better than on a later day, they will likely be charged with emotion. It is natural for near-victims to feel some degree of guilt after an incident; today’s emotionally based speculations (if only I had…) can quickly become tomorrow’s admissions against interest.
Attorneys are also concerned about expert’s written reports. One person’s hypothetical scenario is another’s speculation. Once made public, it is hard to pull back, even if a particular hypothesis is later discounted by new information.
The best results are achieved by assigning an attorney to direct and supervise the investigation as early as possible. Once legal privileges are properly established and with the company’s attorney as a team member, the experts can continue their work and speak freely, leaving any worries about the ramifications of their findings to the attorney.