Every seasoned lawyer has stories of panicked phone calls from a client — the business is imploding, a regulator is on the doorstep, a product has failed, an employee has committed a crime. These calls have an uncanny ability to come in just as soon as you’ve boarded a plane for your family vacation, taken your first bite of dinner, or gotten on the treadmill for the first time in six months. They also have a way of devolving into emotionally fraught tirades. Lawyers consistently operate in high stakes and high stress environments and they know all too well how demands being thrown at them from all sides can feel overwhelming and disorienting. They should be well-suited to empathize with and guide people in similarly stressful situations. Yet when it comes to helping clients with the bigger picture of a business crisis, many still behave as though their clients “are simply names attached to factual patterns purely for identification purposes.”[i]
Business leaders facing a significant crisis can feel like they are being asked to walk a tightrope without a net while being fire hosed. They are exposed to scrutiny from all sides, physically, mentally and emotionally depleted, and are being asked to make high-stakes decisions. One wrong step could spell disaster. In such a situation they are desperate for advice and guidance. By necessity however legal crises require that clients discuss their woes with as few people as possible. Which means that, for better or for worse, lawyers often feel like one of the few “safe” people with whom a leader can converse. Because they are frequently the only objective or professional outside voice during a crisis, lawyers are uniquely positioned to hear a leader’s concerns, fears, doubts, and worries. In such a situation, leaders look to their lawyers for more than what the comments to ABA Model Rule 2.1 refer to as “technical legal advice.” They are looking for someone who will act more broadly as advisor and counselor to assist them in addressing the complex and seemingly overwhelming issues they face.
A lawyer is not a therapist or a business consultant. They can’t “solve” the crisis for a leader, at least beyond its legal aspects. What they can do is help the leader establish a clear set of priorities to guide them. Setting priorities can be a difficult and daunting task under the best of circumstances. In the midst of a crisis such as a product recall or bankruptcy it can be almost impossible to do without help.
1. Priorities Serve as Critical Signposts During the Overwhelming Pressure of Crisis
A business crisis is disorienting, fast paced, and exhausting. It cannot be successfully navigated without a set of priorities. At a time when a leader can’t see the forest for the trees it is very hard for them to know if they are heading in the right direction. When leaders suddenly face more problems than they can handle at once, however, there is a natural tendency to become purely reactive and to never think through what those priorities should be. Should a leader take on increased litigation risk by making public statements or risk damage to their brand by keeping quiet? Should they engage in preemptive layoffs or accept an increased risk that the business will fail entirely? A few targeted priorities set early in a crisis provide a leader with much needed signposts to answer these types of questions as the crisis plays out. A business crisis requires the leader and their advisor to not just engage in legal analysis but to “com[e] to grips with the complexity of real-life situations psychologically and sociologically as well as legally.”[ii] Setting and articulating priorities helps a business leader answer complex questions in a way that is most likely to lead them to a result they will be satisfied.
There are three key types of priorities: Business, personal, and social. Business priorities are the key things the leader wants to maintain, preserve, or work for in a crisis. These may be things like preserving the business, protecting the leader’s professional reputation, or retaining control of an idea or concept. Personal priorities are those that align with the leader’s sense of self and well-being. Examples of personal priorities would be the desire to stick to particular morals, to comport oneself in a particular manner, or to feel a certain way. Finally, social priorities involve identifying key relationships that need to be protected during a crisis, such as those with a spouse, child, or business partner.
A crisis brings a constellation of pressures to bear. When lawyers represent leaders during a business crisis they are dealing with people under tremendous emotional pressures—perhaps on the literal worst day of their lives—contemplating issues such as the potential of a loss of a business built over decades of work, financial ruin, and the destruction of their reputation and sense of self. Some of the issues the leader is confronting may be tangentially related to their legal issues, such as loss of customer confidence or cash flow issues. Others are intensely personal, such as worry about financial and reputational impacts on themselves and their family, or anger, guilt, shame, and anxiety related to the crisis. The leaders’ time and attention is at a premium and they are carrying a heavy burden of responsibility under enormous pressure as they attempt to simultaneously address the problem that led to the initial crisis, reassure relevant stakeholders, and deal with the resulting legal issues. At a time when they can’t save everything, priorities help the leader figure out where to focus their attention.
2. How to Be a Guide Through the Forest
Setting priorities is simply the process of deciding what is most important. In other words, in a situation where there are more challenges than you can handle what do you try to save and what do you have to abandon? This seems like it should be a simple problem. Small children, after all, are able to do it with ease. They will happily sit and play with a pebble while ignoring fancy toys because that is what the find most interesting. They know their own mind and aren’t particularly interested in other narratives. Adults have a harder time because they have so many other external factors to consider: what is expected of me, how will my decision be judged by others, what choice will make other people happy, is there a right or moral component to my decision? This is even more so during periods of stress, such as a crisis. Helping the leader to sort through this tangle is the role of a guide. Consider using some of these tools to help a leader establish their priorities:
- Engage with the Leader: Be willing to listen when the leader wants to talk. This can be as simple as not hurrying to end a conversation that feels tangential or uncomfortable. If the leader wants to share non-legal concerns, be willing to take the time to hear what they have to say.
- Listen with Respect: Particularly during a crisis, listen with extra respect. A leader who might not mind your taking a call while driving or hurrying to get off the phone for another meeting under ordinary circumstances may feel differently in a crisis when they are already feeling isolated and overwhelmed. Remember how carefully you treated the first partner you worked for? Think of yourself as a junior associate again, and the leader as your partner, and act accordingly.
- Ask Guided Questions: Questions such as “what are you afraid of” or “what do you want to protect” help a client to organize their thoughts. Consider asking the same questions you would ask a friend in similar circumstances, such as “have you thought this through?” or “are you sure this is what you want?”
- Engage in Active Listening: Active listening techniques such as restating what you are hearing or asking open ended questions help leaders to draw conclusions.
- Use the Right Tools: For leaders who are visual thinkers, a mind map or chart may be helpful. Other leaders might prefer to work in writing.
- Create a Useful End Product: it is important to set only a few priorities and to make sure that they are clear and easy to remember.
- Show Empathy: It has been observed for decades that clients “may need and want empathy from their lawyers as much as they want legal results.”[iii] Small acts, such as asking a leader if they are doing ok, make a huge difference in establishing you as a source of trusted counsel.
Only a leader can judge or value their priorities. But a lawyer can offer critical support in helping the leader sort out their concerns and feelings as well as to guide them towards developing priorities that clarify their thinking. The person who defends everything defends nothing. Be sure you are helping to defend something, and the right thing.
[i] John L. Barkai and Virginia O. Fine, Empathy Training for Lawyers and Law Students, 13 Southwestern University Law Review 505, 505 (1983).
[ii] Mark N. Aaronson, Thinking Like a Fox: Four Overlapping Domains of Good Lawyering, 9 Clinical L. Rev. 1, 8 (2002).
[iii] Barkai and Fine, Empathy Training for Lawyers and Law Students, 13 Southwestern University Law Review at 507 quoting Allen E. Smith and Patrick Nester, Lawyers, Clients, and Communications Skill, 2 BYU Law Review 275, 281 (1977).