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Legal Counsel’s Perspective: Handling A Crisis

By Fred Walter, Esq.

As soon as a crisis occurs, investigations to assign responsibility begin. On top of everything else, managers must recognize that their corporate and personal vulnerability to civil and criminal litigation and administrative penalties is greater today than ever before. A multitude of agencies and interest groups will ask the fundamental questions of who, what, when, where and — most critical — why. Local agencies, such as fire and police (and increasingly in California, the district attorney), will investigate. The media will assert the public’s right to know. Regional and state agencies such as OSHA, AQMD, EPA, and others will arrive on the scene. And then there are the insurance companies and the attorneys for any injured workers and third parties. Without early attention to the organization of your response, your safety professional’s goals may quickly diverge from your attorney’s.

Safety and health professionals and other experts are trained to analyze the “root causes” of incidents. To do this, they immediately start gathering facts — photographs, diagrams, documents, and written and signed statements from witnesses. They draft working hypotheses about what might have happened, sometimes called “cut sets,” which are revised as new information is received. And they summarize their findings and the most likely scenarios of cause in notes or memos. Their purpose is to be able to say with some degree of certainly 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 which supports the ethic of sharing information in order that others may make use of it in preventing similar events elsewhere. All of this is good.

All of this also makes attorneys nervous. In the murky uncertainly of the aftermath, management hires attorneys to do two things: First, to inform the company of its potential liabilities and the pros and cons of alternative courses of action. Second, to 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 safety professionals — to learn as much as they can as soon as they can. Like safety professionals, they also analyze every bit of evidence they retrieve, but they ask different questions: Is this fact friend or foe? How could this fact be used against my client? And: How soon am I likely to be forced to disclose this document/statement/photograph/lab report to a foe?

The most important difference between safety professionals and attorneys, however, is that attorneys are conditioned to not share with others until they must. Attorneys are taught early in their careers, either by their mentors or by the brutality of the litigation process, that the party which controls information the longest usually gets the best result.

Notice that I didn’t say anything about withholding or burying information forever; modern discovery rules have put an end to that. Modernly, attorneys play a tactical game, protecting their clients by maintaining control over the rate of the release of information and the context in which it is disclosed. However, unless the information gathered in an investigation can be effectively protected, everything that is gathered, from photographs to lab samples, from written statements of what the writer heard someone else say to brainstorming notes speculating on why the event occurred — all of it — is fair game for subpoena in any later court litigation or administrative hearing process.

Two legal privileges against disclosure aid attorneys and their clients in protecting information developed in an investigation: The attorney work product privilege protects information developed by an attorney and his or her investigators (including safety professionals). While not fully effective, this privilege is usually very effective to protect an investigator’s written notes and impressions. The second, the attorney-client communication privilege protects exchanges of information between these two and their affiliated representatives.

Management attorneys must be especially sensitive about signed witness statements. While signed statements created just after a traumatic event might preserve the writer’s memory better than on a later day, it is certain that they will be charged with the emotions of the moment. It is natural for near-victims, especially safety people and managers, to feel some degree of guilt after an incident, and today’s emotionally based speculations (If only I had… I coulda/shoulda/woulda … ) can quickly become tomorrow’s admissions against interest.

We also are concerned about expert’s written reports. One person’s hypothetical scenario is another’s speculation. Once the genie is out of the bottle it is hard to get back in, even if a particular hypothesis is discounted by information which comes to hand later.

While there may be some tension between safety and counsel, the best results for management are achieved by assigning an attorney to take over the direction and supervision of the investigation as early as possible. Once legal privileges over the investigation are properly set in place 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. 

ABOUT THE AUTHOR

Fred Walter is a Healdsburg, California lawyer who represents management in OSHA and related matters. To date, he has supervised about seven workplace crisis responses and investigations. Mr. Walter can be reached at 707-431-7900, fredwalter@aol.com, or www.walterlaw.com.

riskVue | The webzine for risk management professionals
November 2002