Recently in Crisis Management Category

It seems to me, looking at this phenomenon over the 53 year history of my practice as a conflicts specialist/litigator, that most of what I have to try (or where I have had to be sufficiently aggressive to cause my adversaries to lower their demands to an acceptable level) could have been remedied in one tenth the time & for one tenth the expense.

The introductory phase of conflict presents rather similarly across the range of dispute causes/subjects.

They begin and develop in the same manner. There is a grain of dissatisfaction over some subject/event/program or other that is either not identified as it first begins to sprout or is given almost no weight.

Ignore Some Irritations

Many times, ignoring that first flicker of annoyance is the sensible thing to do, judging by hindsight because it never developed into fulminating melee.

Sensible people appreciate that no relationship, business or personal, is without occasional inconvenience.

Sensible people absorb the minor shocks/vicissitudes of ongoing relationships because the value of the relationship itself is an overall positive. With quality control relationship management the difference between the ebb and flow of normal relationships and problem development is much more discernible.

But that is relative, not an absolute, and the value morphs as the relationship develops over years - sometimes becoming more valuable and sometimes less.

There is a dependent relationship that is expressible quantitatively between length of relationship/severity and frequency of difficulties/quality of reward for staying in the relationship. An econometrician could assign values to each of these factors and the passage of time would cause them to move along lines that diverge and intersect in trends to provide a mean scale within which, given a large enough sample, one could posit relative satisfaction generalities and, by measuring deviations from the mean, posit the potential for eruptions. I promise that at this point I will stop all this econometric mumbo jumbo and get down to brass tacks.

The major target of this discussion is distributive systems, vertical in the instance of managing franchise and dealer relationships. The application is the same in all business relationships that endure over a significant period of time, but I am going to use the vertical distributive relationship as the focus of this article.

Frequently people enter commercial relationships with unrealistic expectations. This is sometimes the product of hype and sometimes worse than that. If there is no enforceable agreement providing for a term of years, the situation is easily remedied.

The remedy is not always cheap as investments in infrastructure may have been made in expectation of success.

If there is an agreement for a period of years the exit cost is often extremely high, both in terms of cash and other non cash elements (think move out/covenant not to compete/transfer of customer loyalties). Often the deal is as expected but does not succeed for other reasons, some economic and some just a failure of relationship management skill.

Those involved can sense when the tension begins to rise and can also appreciate when the tensions increase. They suppress the angst for as long as possible because they simply dislike confrontation and don't want to waste money lawyering up every time there is a pissing contest. Somehow they never just sit down and try to find a path to YES. Maybe even if they did that path would not be available for one or both. Why is that so frequently the case?

The process of a relationship becoming disputatious is similar to that of an illness progressing from a sneeze or cough to pneumonia. The issue is when to intervene and how to arrest this progression. There is no magic point. How that point is identified is affected by attitudes of caring or not caring; of follow up quality control communication or simply leaving the strategic health to the care of the tactical functionaries. But everyone reports to upstairs, and dissatisfaction where the rubber meets the road becomes amplified as it effervesces upward.

Large institutional companies operate upon the assumption that all is automatically normal and positive because in some sense the belief is that anything but utter calamity is affordable and someone down below may always be thrown under the bus in the process of cosmetic accountability.

But most of us aren't General Motors and most of us can't afford the General Motors attitude - nothing matters because we are professional grade people. Sadly, even calamity failed to alleviate the kind of arrogance that persists even today in that company - and in more like it.

In many companies there is official doctrine. One must agree with the official proclamation of what and where and how or be moved out of the organization. This reduces the potential value of internally generated relationship quality control.

In short, people are afraid of speaking up when their doing so could be extremely helpful if only there were open minds.

Where the game is to "make it" through your assignment and move on, leaving problems to the poor bastard who will take over from you in this position, effective trigger point spotting will simply not occur. In so many companies there is the middle management belief that upstairs never wants to hear anything except positive reports and will punish in one way or another those who raise "issues". They really don't give a damn, won't bother monitoring what is going on until it is lawyer up time.

Even at the General Motors level of wealth that system doesn't work. What then for the rest of the rational commercial world?

But, When Is It Just Too Much To Take?

Real people managing real companies that have to face real vicissitudes of relationship quality fluctuations have to be alert to trigger points that, if left unattended to, may sour important ongoing transactional success. Left unmonitored, even the best commercial relationship tends eventually to unravel.

For instance, your largest customer begins to believe that he is too important to you and that you will absorb all sorts of impositions in order to keep his business. This would include, stretching/exceeding credit terms, taking unauthorized discounts and allowances, making demands that you the seller, absorb the freight, seeking "gifts" and inclusion in perquisites that few others ever receive. The list goes on and on.

Many companies fail to recognize at an early point in this progression that some relationship discipline must be imposed to prevent this kind of malignancy from metastasizing. While the customer may be important to you, on these facts you are also important to him as a critical supplier on whose products or services he makes a lot of money downstream.

Doing nothing leads only to ultimate confrontation, because the more the customer gets away with these ploys the more he demands. Too much is never enough.

I start trial in such a case in three months. My client let this customer get away with far too much for too long, and when the axe finally had to fall, the customer sued. This particular scenario is one in which the customer has used similar tactics on others of his critical suppliers and has also ended up suing them.

The abusing customer should never win, but everything positive that might have been preserved is destroyed by failure to see the truth about the coming threat in time to defuse it.

Why The C-Suite Gets Bad Information

It is perhaps not fair to expect the people at the low end of the ladder to deal with their opposite numbers in client companies in handling potential problems. In an ideal environment they would report the issue upstream and a conscientious middle manager would take it to his boss for consideration. Then one of those people would take the initiative to contact his opposite number in the other company and deal with whatever it is that needs attention.

No one will say this, but making people fearful of expressing themselves in any way but the approved way for fear of infliction of punishment is precisely what Lenin and Stalin did following the Russian revolution. If you thought of how something may be working in your company to make it look like that, perhaps the failure of that method and the need to correct those impressions would be easier to recognize.

In a more advanced mode there could be a company ombudsman to whom people could go with identified oncoming issues, and the ombudsman would pull the laboring oar in getting upper management to address it positively. And if the ombudsman also had the authority to go consult with critical professional resources (legal, financial), including outside resources, the ability to head trouble off at the pass would indeed be enhanced.

Novel Retainer

I have my own way to handle this problem. I urge non litigation clients not to hire me on an hourly fee structure, but rather on a monthly or quarterly retainer that covers absolutely everything other than litigation/arbitration and out of pocket expenses.

That prevents people not calling me for assistance because they dislike knowing that when I pick up the phone the damn meter starts running. I am available 24/7 under that arrangement. The initial period of the retention is one of adjustment regarding whether the anticipated work turns out to be more or less than anticipated for the flat fee retainer, but as time passes the retainer gets adjusted up or down to keep it fair to everyone.

I urge consideration of this mode of relationship configuration upon my brother and sister attorneys. It may be less remunerative in the short term, but it builds a much better attorney-client relationship, so that in the longer term the economics are rather favorable.

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Just back from the wars, so to speak, I found that most folks are too socially emasculated through the process of institutionalized position sensitivity to even have an inkling about what to do when a dominant position person goes off the deep end and his actions threaten to destroy businesses if not brought to a screeching halt. Such was the war just concluded, in which we represented numerous franchisees of a franchisor who's point person thought and acted like a white bread Benito Mussolini.

This was a renewal issue in which the franchisees had the right to renew on the same terms they currently enjoyed unless the franchisor was then selling new franchises, in which instance they would have to sign the then current franchise agreement in order to renew.

Obviously, new franchise agreements are historically upon worse terms for franchisees than expiring agreements. At least that is the predominant experience in the franchising business.

Money, restrictions, franchisor prerogatives and other matters that impact the relative economics of a franchise relationship tend to move in favor of the franchisor with each new iteration of the agreement.

This franchisor was a more than over the hill operation and had not sold new franchises for about twenty years. It had seen the attrition of most of its franchisee population and did not even have an operations manual.

Peter the Point Man decided that the value of being his franchisee was far above then current relative economics and that he was not going to be so foolish as to honor renewal terms, no matter how clearly they may be stated in the soon to expire current agreements of my clients. They were the best performing franchisees, historically, in the system and had been there for about forty years. Had Old Pete been possessed of any good sense, he would have paid them to show him how to operate the company owned units which lost money while theirs prospered every year more and more.

Any econometrician would tell you that in these circumstances the relative value of the relationship among the parties were indeed skewed, but in favor of the franchisees rather than the franchisor. Had Old Pete simply gifted these franchisees with the entire company, he would have come out far better off economically compared to facing years upon years of continuing losses eventuating in the bankruptcy of his company.

These franchisees had been clients of mine for over thirty five years, having once before been confronted by an earlier edition of delusional point person. I sued the franchisor on their behalf then, and the results of that litigation was the ultimate cause of their having favorable contract terms now.

My clients believed that when renewal time came around this Bozo had plans to try to rip them off, and so we had almost a year head start in setting Him up for his comeuppance.

Franchisors love discussions. Discussions leave no tracks. Writings are tracks, and thus are despised by franchisors, especially if they have an agenda to be predatory and need deniability in case there is strong push back by the franchisees. Peter the Point Man, however, failed to recognize that our insistence upon having email confirmations and exchanges to prevent negotiations from being nothing more than conversations was providing us with a plainly visible trail of the development of his entire program to rip us off.

His arrogant lack of subtlety even went so far as to acknowledge his obligation to negotiate terms with us and then insist that the negotiations be restricted to only those issues raised by the franchisor.

He even went to the trouble to have his lawyers send us a proposed contract amendment saying just that.

No one signed that, on advice of counsel.

He then told us that business requirements prevented him from being able to negotiate the renewal terms right now and offered a one year extension of the same terms to accommodate his claimed business needs. In fact, what he did during that extension period was to have his lawyers create a spurious FDD, which he registered in Virginia so that he could claim that he was in reality engaged in selling new franchises and therefore exonerated from having to negotiate new terms with us or to offer renewal upon the same terms as before. He then imperiously insisted that we sign his new franchise agreement, which was full of incredibly stupid positions that no competent franchisor would ever put into his agreement.

To be sure, he also changed the economics drastically in his own favor (as if that needed to be said). The State of Virginia took one look at his company financial reports and immediately slapped him with an initial fee impound.

My clients had been successful business operators for over forty years, and had been in only one real battle royal in their entire lives, the earlier litigation with this same franchisor under other "leadership". They found it very out of character for me to insist that they seriously do things to bring about the entrapment of the present franchisor management. I had constantly to explain to them that if they didn't handle the situation as a prelude to a main battle they were going to lose their businesses.

They, like most folks, erroneously believed that they had obvious rights and that that was all that was necessary for the correct result to ensue.

They were initially incredulous when I explained to them that there is no right on earth that is self-executing, not even those in the Constitution. If you don't stand and defend your rights, they can easily be taken from you, and this was an obvious situation in which that was exactly what would happen unless we succeeded in entrapping the franchisor into revealing his hand in an evidentiarily usable manner.

They had never heard of such a thing, and their regular lawyers had no inkling or experience with this sort of confrontation technique. They were always fearful of giving offense and messing up their negotiating posture. They refused at first to believe that there was in this instance no such thing as negotiations and accordingly no such thing as a proper negotiating posture. Fearful of burning bridges and self-destructing, it required a lot of tough love quasi-military training to get them to go along with my urgings.

Only as the unfolding of the fact pattern revealed that I had absolutely correctly assessed the risk and danger profile did they come to accept the ancient truth that the only way to deal with a bully is to whip his ass half to death - or at least until he came to terms.

Peter the Point Man had no experience in working with a company that was actively selling franchises. His overlord had once before been with a franchising company that had, under his leadership, gone into bankruptcy. Between them both, they were playing with far less than a full deck - were several bricks short of a load.

Accordingly, they compounded mistake upon mistake. They failed totally to do what every real franchisor always does to market a franchise program. They even sent us a letter half way through the litigation saying that they hoped soon to have an operations manual ready for review. The list of bozo mistakes would provide a standup comic with at least fifteen minutes of material.

They informed the court that their position was that the issuance of the spurious FDD was all they needed to prove that they were indeed engaged in selling new franchises. They could not have posited a more ridiculous strategy. This was the easiest possible position for us to defeat. Four days before we were to take their depositions in anticipation of an immediate preliminary injunction hearing, they had an epiphany, and about a week later the case was resolved upon very favorable terms for my clients.

The lesson here is that while it is nice to have polished manners and live by reasonable rules of commercial civilization, there comes the moment when those rules do not apply. If you continue to live by those rules you will simply be eaten alive. In times like that you need representation that understands and understands how to execute battle plans that level any playing field.

When someone decides that a business relationship is there to serve the terms of an agreement rather than the agreement being there to serve the quality of the business relationship, the result will be calamity if not immediately changed. Usually that change can only be brought about by aggressive confrontation.

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As always, you can call me, RIchard Solomon, at 281-584-0519.

There are in every segment of our economy, at every moment of the day companies/people who sense that some significant project for which they bear responsibility is starting to move in a bad direction.

Whether it is:

1. A franchise system filling with disenchantment due to market changes for which requisite adjustments have not been found and made-

2. A fashion house trying to cope with designer disputes and threatened license terminations-

3. Dealers that need to be terminated in order to more effectively aligning the company's direction with its marketing strategy or foreign trade issues -

4. How to build a more international network and mitigate exposure to foreign jurisdictions should things not go as planned -

The list is endless - that movement from well being to impending serious difficulty arises.

The people to whom you regularly turn for guidance in more normal circumstances are less helpful when life starts to get tougher.

They may have long tenure and vast company and specific industry knowledge as well as knowledge of the people involved. However, theirs is not responsibility for stepping away from the immediate picture and providing calibrated options that can with econometric reliability be sorted and prioritized.

Finally, let us assume that the situation/company/relationships now coming into higher risk are worth saving. Some are so desperate that the die has been cast.

Most of these relationships are founded upon written agreements containing clauses taught in law school or by long custom that are terrible impediments to braking as brinks are more closely approached. Feeling trapped by inopportune language, most law firms I have encountered advise the pulling of triggers, giving notice of claim or default, stated in those stilted lawyerese that so endears our profession to the rest of the world.

But contracts have other clauses, largely unwritten in the traditional sense. They have become incorporated into the business model of the agreement by the force of experience and change. Lawyers who can read often can't find these clauses due to lack of substantive insight. They may be legal scholars, but this isn't a law school final exam.

If pulling triggers for fear of being accused of not exercising one's rights and thereby losing them could without sacrifice of position be replaced, would you consider it?

And what factors would you have to take into account to decide to take a more unorthodox approach to dispute avoidance that could save the deal/relationship/realignment project that you really wish to implement?

Begin with the metrics. The metrics are not a set of likely numbers if one approach is chosen. The metrics are differentials between performance number sets when alternatives are not only netted against each other, but considered in series. Yes. You can do both. If you know you can still fight if the preferred approach doesn't work, with no loss of position, could you ever even think of not doing this as I suggest you should?

Obviously this is not addressed to scorched earth egoists who like fiddle music in the midst of conflagration. Most companies are rational. It is to those rational companies that our approach makes the most sense.

Few people are always or absolutely right. In most instances there is room for adjustment. The passage of time alone suggests market changes that make old agreements less suitable to modern issue resolution.

Lawyers who believe only in contract language can never accomplish what I am speaking of.

If you would like to explore this avenue to rational prosperous relationship preservation, give us a call 281-584-0519.

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My education and experience in crisis avoidance and - if that fails - crisis management began rather early in my now more than 50 year professional practice.

The purpose of this article is to illustrate how the seeds of disaster are planted and grow, slowly at first in many instances and then explosively, and how best to avoid or manage those life threatening events.

The context is a story of three companies' experiences. One probably could not be avoided, as it was the product of the human tendencies that operate as it approaches critical mass and then explodes.

The other two were instances of avoidable mismanagement coupled with refusal to deal with anything that was not openly supportive of the agenda of a limited leader/owner - bullying as we conveniently call it today.

1. Let's deal with the giant company syndrome first.

It was the company's heyday. It led its field in almost everything it attempted. It had more money that just about any enterprise on earth. Its sales were more than the gross national product of several countries combined and its profits were mind boggling.

Department heads worried more that if they failed to go over their budgets the budgets would be reduced the following year. While enjoying an as yet unearned designation as an antitrust specialist, I was the lowest of the low in an enormous group of highly educated experienced people. What I really got to do was observe and learn.

No confidential information will be revealed in this article. Everything here is of public record and very old. Most of the people involved are long since gone to heaven.

In retrospect I think it is probably impossible for normal human beings to remain modest, humble and maintain their essential humanity in the face of so much wealth and power. I am not against wealth and power, but in this instance we are speaking of national level wealth and power - supernormal even for large companies.

Oddly enough, while antitrust enforcers sought and failed to bring it down, it ultimately brought itself down with inbred delusionality.

2. What I quickly learned was that most crises come from management blindness and resulting gross miscalculation.

The notion that one may be possessed of so much power, authority and wealth as to be immune from disastrous consequences is practically always the seed from which the tree of emergencies grows. This company was an extreme example of that, far more so than any other place I have ever been.

What I observed that opened my eyes to the notion that no one is sufficiently powerful to be immune to disaster was a trio of catastrophic instances of management arrogance and of management being oblivious to the opportunities for change in the marketplace.

• The management arrogance incident involved attempting to destroy a critic who had put his finger on a fundamental product weakness.

• No one was to be permitted publicly to suggest that this company was imperfect.

• The corporate braggadocios included such things as boasting that it was four deep in every position - the definition of wastefulness - and that its law department was The Praetorian Guard of the World's Largest Industrial Organization.

You just can't make this kind of stuff up.

The consequence of the incompetent attempt to destroy the critic was the establishment of organized insistence upon better automotive safety and the enactment of laws addressed to that and several other issues on which prior to that moment in history the company had had its own way. The genesis of the plot was laid to the law department.

Oddly enough, at the same time, its most effective potential competitor came out with a revolutionary design named The Ford Mustang that swept the market with excitement. Lee Iacocca really was the smartest man in the room.

Within a very short few years the Japanese, led by Honda, took up where Ford had begun and the era of the giant, powerful, fast, quick, gas guzzling behemoth of an automobile began to fade.

Ultimately, the product of such ingrained arrogance was the failure of the entire company and a federal bailout to try to save the jobs it potentially represented. In such a rarified atmosphere it is probably unrealistic to expect what would seem rational to normal people.

A large portion of the difficulty and expense of dispute resolution is that there are pre-emergence symptoms that are not recognized and dealt with.

Financial advisors evaluate and assist in the management of financial variables. There are other kinds of variables that impact the humanities side of company performance as well as its financials. If these are taught about in school, few people get passing grades and most don't take the course.

Business degree curricula being certificate oriented and template compliant regimes such as they are, the analysis and competent management of non-arithmetic variables are beyond their scope and capability.

What is taught is that nice people do right and you are a nice person so you must be doing right all/most of the time. Since neither proposition is regularly true in most instances, troubles happen.

No amount of instruction can rule out disputes. Disputatious situations will arise no matter what. What is unfortunate is that they are not identified with sufficient anticipation and not competently managed so that their impact is negated or minimized. Dispute anticipation can't be taught. This comes only with years of actual dispute management/resolution experience that enables one to see what it was that caused the disputes to arise in the first place and in retrospect identify when a dispute began to take root.

I have spent so much time over so many years going through case files and interviewing the people involved in so many lawsuits that a sensitivity to moment of arising and methods of avoidance simply became part of my psyche. In later years I can recall conversations with client managers in which the real goal was not in the resolution of the situation but in the avoidance of blame for its having happened. This, simply put, is unnecessary.

How does one go about not having to worry about blame for difficulties?

Dispute forecasting is both art and science. It does not readily lend itself to hourly rated retention, as the passage of time during which difficulties are identified/anticipated, how best to manage them is identified through collegial consensus, and the chosen method(s) implemented make hourly rated expenses prohibitive. Mission creep and the incentive to maximize billing poison the quality of the endeavor.

In addition, the resource to provide the expertise is not usually conducive to appointment to officer or director status. The resource needs to remain outside and to be involved in doing the same things for other companies in order to maximize its usefulness. A resource with only one client quickly becomes more fearful of alienating that client than focused on confronting root causes of difficulties. The ability to move on without suffering economic dislocation is indispensable to this kind of work.

How then does one establish and carry out being someone's effective dispute avoidance/management resource?

I believe the most effective relationship in the performance of these functions is a continuous presence/availability. Now that we have such things as email and electronic file transfer, we do not need to be constantly under foot. We can be available for face to face meetings at client need or convenience, but most of this can be performed remotely.

Retention terms should be periodic but not hourly. The resource and the client can come to mutually acceptable terms per month or quarter so that mission creep and billing incentives are removed from the scene. Since this kind of work requires the establishment of trusting relationships with relevant management and open channels of communication with no increase in project cost, this longer periodic arrangement fits/works better than any other.

The alternative is what companies suffer through now. A conflict on any given situation begins to arise. It is swept under the rug for as long as possible. Eventually it grows, like Rossini's description of slander, from a whisper to cannon fire. During this period of development, memos are written, emails are sent, and angry conversations occur that are later received in evidence or memorialized in deposition testimony transcripts and dueling affidavits. When the lawyers finally get involved the situation is on fire, the expenses are horrific (including management dislocation), and in many cases the resulting damages can destroy or financially undermine a company.

This unfortunate set of circumstances is no longer necessary. People need to feel free to deal up front with negative issues without career threatening consequences. When significant disputes can be avoided through competent variable management techniques, these negative impacts can be eliminated or so mitigated that threat levels are not critical. Of course conscious, intentional misconduct is an exception that nothing can eliminate. However, vindictiveness and scofflaw behavior are rare notwithstanding all the attention they get in the newspapers and on TV.

Most folks want to play reasonably close to the rules. The more you think about this the better it sounds and the more you will want to consider this approach.

Tamerlane group's purpose is to prevent you from shooting yourself in the foot when you see a bad event threaten to develop. Our focused expertise in crisis management can prevent these situations from developing if we are called before someone makes self-humiliating public statements/files absurd lawsuits. 

Trouble hides in the weeds for a while before it actually strikes out and bites.

There is little difference between finding out where and what it is and snake hunting.

In the corporate world, the two most probable snake hunters will be the General Counsel and the Chief Financial Officer.

The CEO/Chairman may liminally sense it but people in that role tend to deny it for as long as possible.

They don't want to be distracted or confronted by it and they don't want to think about the expense of dealing with it. That allows it to fester a bit.

Eventually someone with awareness of the situation will walk into the General Counsel's or CFO"s office and start a conversation that leads to revealing what is hiding in the weeds..

The GC or CFO will be the person who brings it to the attention of the CEO, at which point the CEO recognizes as the result of that conversation that this must be dealt with or the costs associated with dealing with it will get out of control.

Real trouble can't be dealt with via publicity or advertising.

General Motors has been advertising for years that its management are all "professional grade" and they are going to take at least a $ 750,000,000 hit for shoving its faulty ignition switch issue under the rug for several years and for power steering malfunctions of several year's standing - about 3.5 million cars.

Toyota is about to take a similar hit.

Johnson & Johnson has been doing this for decades.

Someone in the past knew of the problem and decided to try to conceal it and fix the aboveground part of it on the cheap. That almost never works. The company is just deluding itself.

Scores of other companies do this every year.

They never seem to learn.

Denial is a very strong impulse.

Waiting to deal with it until after your potential adversaries have already lawyered up is a very wasteful approach. You can make a much better arrangement for your company if you lead the way. The humiliation and injury to sense of integrity associated with GM's head engineer on this particular matter testifying under oath at his deposition that he does not recall the matter; when it came up; making any decision not to fix the defective cars that already went out to the market, but just to correct it going forward are simply tragic.

When those who know are so afraid to tell the truth for fear of being fired, your company had made a terrible blunder.

Even if GM can afford $300,000,000. In addition GM has now taken the Chevrolet Cruze off the market and Edsels itself beyond anything in history. Professional grade? Yeah right! This is what comes from head in the sand techniques of dealing with impending crises. These were known long ago and nothing helpful was done.

Your company may not have the financial depth to take these hits periodically.

My belief regarding who are the first to begin to register impending trouble is based on the fact that it is always the General Counsel or the CFO who is the first to call me and suggest we visit.

They are the two most likely places that management go to for consolation and direction when bad things are on the horizon. They are usually the people in whom most managers have the most confidence.

Those are the guys to talk to if you are a crisis avoidance specialist.

Sometimes it is their outside law firm if company management does not want it known that they have brought in a crisis specialist,

If potential crisis is perceived it should never be taken by a company's regular law firm.

The reason for that is that they have an inherent conflict. Their first concern is always going to be for self preservation. Either they may have had a hand in the trouble - think Enron - or they tend generally to be ultra possessive about other lawyers being allowed to get close to their clients. If you have ever watched them at a convention with a client person, it is fun to watch them cling to these folks constantly to avoid any other lawyer getting a chance to be alone with them, even for a second. If you know what to watch for, it is hilarious.

Many a crisis situation has been mishandled for just that reason. Confidentiality obligations keep me from telling some horror stories.

They tend to call who they know. The worse the matter is perceived to be, the more likely it should and will go to a specialist rather than to their usual law firm.

There may be liaison with both groups for a short period, but the crisis specialist has a different perception of how potential bet the company situations should be handled. For one thing, putting a lid on the PR folks is an immediate must. What goes out of a company has to be carefully and centrally controlled, and PR template denials are usually the worst opening gambit. If you are being compelled to say something by a stock exchange you are very late in knowing about the issues arising.

But even then the PR auto deny gambit is usually a wrong move. In this day of people tweeting their bloody lives away, control over unvetted public statements by the company itself must be as tight as possible.

Sometimes it isn't a business dispute, but a problem of some key person or group being involved in improper and potentially embarrassing conduct, the scope of which is limited only by the human imagination. Corporate board room types are not well versed in how to manage this kind of damage control, but the first place the news will go is to the GC or the CFO in all likelihood. That is the moment when (after the CEO is advised) the potential crisis management specialist needs to be called.

Misconduct by a key person may be exploited for economic advantage and it may have been engineered deliberately just for that purpose.

Anywhere in the world. Any kind of matter at all.

The difference between the normal course difficult situation and the impending potential crisis is that the latter cannot be dealt with using template approaches.

Template approaches are taught in every law and business school and is practiced by every medium/large law firm and PR group.

Why that is inappropriate and why it usually leads to a terrible result is another story, but it usually does not get you where you want to be. In a really terrible situation, a bet the company problem template approaches are regularly disastrous.

Finally, another nice attribute of the crisis specialist is that, since he won't be anything like the people you socialize with, you are done with him after the conclusion of this one situation.

You can then go back to the golf pals with no bad blood hanging over those relationships.

For the 5 Most Fascinating Stories, a weekly report, click here & sign up.

As always, you can call me, RIchard Solomon, at 281-584-0519.

The next major economic blunder I witnessed enabled me for the first time to take the matter out of the hands of the blunderers.

A major client had acquired the leading company in its industry segment. The government attacked the acquisition under the antitrust laws.

The company's large Wall Street outside law firm with a partner on the company board recommended that the company simply roll over and agree to divestiture because no company had ever beaten the government in a merger case brought under Section 7 of the Clayton Act.

I opposed that and, to make a long story short, that was the first time the government ever lost a merger case under Section 7 of the Clayton Act.

It was then I began to realize that not having over the horizon insight into crisis avoidance/management did not have to be an incurable disease. You must immediately look beyond your normal representational resources for a specialist who can handle bet the company situations.

Later, after I had established my own law practice as a boutique business litigation resource, I had many more occasions to be that specialist.

A couple of other stories will help the reader with insight into how I handle potentially disastrous situations by going outside the box and looking back into the interstices of how the issues began to develop. I can now usually head them off or resolve them if I wasn't lucky enough to have been brought in at the very beginning before it went viral.

These examples developed in the following manner and they blew up in the clients' faces at just about exactly the same moment.

1. CEO - Great Leader, Terrible Witness

In the first such instance my client's former trial firm had garnered the account by agreeing with everything the head honcho said, telling him that he was absolutely right and that if he didn't make his stand on the issue in this case he could kiss his business advantages goodbye.

None of that was true and a competent law firm would have known that. To this day I don't know whether they knew it and misrepresented the situation in order to get the case or whether they really were that ignorant. They made their stand and lost the case. That was the point at which I was contacted.

The client wanted to appeal. The client wanted to sue the lawyers for not putting the president back on the witness stand for further testimony.

What an appeal would have accomplished would have been to take a lower court's correct rulings and have them confirmed by a federal court of appeals for a more potent precedent to be used against the company in all future cases on this pivotal issue - and there were a lot of them waiting in the wings.

When a franchise company loses a major case its franchisees see it as a wounded animal and close in for the kill.

I almost got fired because I urged them not to appeal but to simply take the defeat and move on.

I again almost got fired when I privately told the president that he was the worst prepared witness I had seen in years and that putting him back on the stand would have only made things much worse.

But I urged him not to sue the other lawyers because there were far more important things needing attention and there was no high probability of success in the malpractice suit anyway.

I think I was kept on because I was willing to be the first lawyer to say no to the president and take my chances on his being mature enough to recognize what it takes to do that.

There were more than a couple dozen other cases pending in courts all over the country to deal with, all previously "handled" by the same predecessor law firm, and they were all potential time bombs. We either favorably settled or tried to a victory over 15 of these lawsuits, whereupon the company started to shrink from the sheer weight of pervasive contention.

2. Winning Lawsuits versus Good Business

Winning lawsuits does not automatically translate into marketplace success, and this company turned out to be a one trick pony left behind by advances in its core technology.

Illustratively, when I suggested diversification over dinner one evening, the response was "When I want a goddam lawyer to tell me how to run my business I'll ask him".

The opportunity to avoid becoming irrelevant arose early and often. The company was enabled by a technological change in its industry, and it had mastered that technology. However change continued and its owner refused to adjust even though many asked him to.

"That's not part of our franchise" was his stock response to requests from his franchisees for support on the implementation of the newer technology in their franchises.

Told that the new technology was not part of the franchise, they opened separate businesses to exploit the new technology, using other names, and paid no royalties on that business.

Then the owner of the franchisor became furious and began accusing these franchisees of stealing from him. These were many of those other lawsuits I inherited from the prior law firm that had obviously not done any homework or saw the problem and pretended it wasn't there for the sake of the monthly bills.

The hardest of these were the California cases where covenants not to compete are not enforceable in franchise settings. Fortunately for my client, counsel for the franchisees was no more astute than that and mispleaded their claims so poorly that they could be defended to the point at least of them paying us money in most instances as the price for a release from an unenforceable covenant not to compete and a franchise agreement.

Configuring a potential loss into a revenue event allows it to be reported rather favorably.

3. Mass fraud claims

Next, in another case over 120 franchisees joined together as joint plaintiffs in a gigantic racketeering and antitrust case with pendant fraud claims, asking the court for $ 62,000,000. The company's CPAs threatened not to give a going concern opinion because of that case.

As tough as it was - and 120 plaintiffs with the same history tend to be believed by judges and juries - the franchisees actually paid us $ 750,000 to settle the case they had brought.

The real point of this story is that the owner of this franchisor had so cowed his officers and senior managers that they were afraid of making any gesture in the direction of the newer technology.

The man bullied everyone but me, it seemed. One of his officers once told me that they tried to keep us apart because at least now they were not losing lawsuits and they wanted us to continue as the company's counsel.

In the end our attorney client relationship was somewhat taken for granted to put it nicely and I asked them to obtain other counsel.

They threatened in writing to sue me for leaving them and went around telling people in town that they had fired me for incompetence.

No one believed that and I just ignored it.

That was the right decision. The company has since slipped into almost total oblivion, still unable to accept the notion that it has to evolve in order to enjoy continued success. I can keep the wolves from the door, but no trial lawyer can force any company to open its eyes to realities it wishes were not so.

The last of these stories involves another franchise company whose owner rose to the point of being delusional about almost everything.

4. Wasting your empire.

This last company, also a franchisor, benefited mightily from the advent of the personal computer. Its market position was so strong for several years that it could require its franchisees to buy their PC and other inventory from them and to pay in advance for it. It too was the largest distribution resource in its field.

Ultimately the market began to evolve and its hundreds of franchisees were seeing other avenues they wanted to investigate. The VAR and VAD - value added retailer and value added distributor - were making their entrance into the market and wanting recognition.

The company began to lose its grip on its franchisees, partly from the changes in the market and partly from the delusionality of its owner.

It had come to me before becoming my client and been turned down because the lawsuit it wanted to bring simply did not include any valid claims. When I told this to its in house general counsel his response was that they would find and hire a lawyer who agreed with them. They did. They lost.

The owner had once borrowed a rather small amount of money - around $ 250,000 - giving a note that, in the event of default, would be convertible into a large percentage of the company's stock. The note holder sold the note to someone else, which was his right to do. The maker, owner of a by now very successful franchising company, decided that it was inappropriate for the holder of the note to sell it and announced that he would refuse to pay it. The note holder gave notice of intent to convert the note into shares of the company, which the owner refused to recognize.

The head of the company refused to honor what was essentially a slam dunk obligation and hired the same firm to represent him and the company in that debacle as well. He lost control of the company; had to pay the note plus interest; and had to pay the expenses and attorney fees of the suing note holder. The franchisees, as could be expected, saw this as the pregnant moment to strike and they did so.

While this was going on I had favorably settled or prevailed in 14 straight franchisee cases in courts all over the United States. Ultimately those victories were to no avail.

That franchise system is now no more than a shadow of its previous self. Its former owner fled to a pacific island and continued to get into more trouble until he was kicked off the island.

The enterprise was literally wasted because its controlling interest refused to deal effectively and immediately with impending negative prospects.

As odd as one might think it, similar lapses occur all over the United States. Company leadership seems to feel that by taking a fresh look at a bad situation there is an inherent exposure to criticism. Fear of "embarrassment" and wishful thinking lead to these companies doing and saying the wrong and most damaging things imaginable, urged on by the two most inept resources at hand.

One should never follow the advice of its PR people when bad things happen. PR people do not deal in reality and do not know how to address tough situations in other than formulaic ways, assuming that all situations, no matter what, can be made to fit into their templates. That is simply wrong. At its best it is inadequate.

Similarly, a company facing distress should not give responsibility for addressing it to the accountants or law firms that were associated with the conduct that is being challenged. Those law firms and accountants are almost always preoccupied with covering their own potential liability and for that reason have a poisonous conflict of interest. Get new resources in there and see whether there is a more realistic way to go about addressing difficulties when they arise. For examples of what to do or not do, seehttp://www.franchiseremedies.com/Franchisor_Mishaps.htm.

If you really do want to minimize injury and damages from impending difficulties, you need to make yourself open to critical assessment.

People with confrontation avoidance capability need to be able to speak to you about the situation in real terms in real time.

You are not right because you say you are right.

Even when you really are right the circumstances may be such that you would better serve your own interests by considering compromises of less than indispensable issues and principles.

Disputes are never about "the principle of the thing". They are always about several principles that are vying with each other for priority of consideration.

With the passage of an amazingly short period of time the leading principle may seem less important and other considerations may call more heavily for your attention. Life is fluid, not static.

Get an expert and watch better things happen to you.

As always, you can call me, RIchard Solomon, at 281-584-0519.

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