Stay Calm and Carry On

How to Stay on Point When in a Crisis

JAY SULLIVAN

Arguably, there is no greater danger than to get between a parent and their child. If that parent is a female grizzly bear, run.

From 1989 to 1991, I was in-house counsel at a crisis shelter for runaway and homeless youth in New York City. Kids came to the agency for reasons both desperate and disparate. While most were homeless because they out­grew the city's foster care system, many had fled homes that were abusive or so dysfunctional that the teenager decided she might be safer looking for shelter elsewhere. Occasionally, kids came from loving, supportive families struggling to deal with the teenager's mental health or substance abuse chal­lenges. We never knew what difficulty might walk through the door. Regard­less, as the legal team, we needed to know and protect the child's rights while also protecting the child. When I teach negotiation skills at law firms, part of my job is to help lawyers recognize that if you go for the jugular, you can destroy a client's possibly ongoing relationship with the other party. When the other party is a child's parent, there is more at stake—and more finesse to the discussion.

As lawyers, we are bound not only by a code of ethics but also by the law itself. At the time I worked for this population, New York's Runaway and Homeless Youth Act¹ allowed any teenager over the age of sixteen to seek protection at a shelter for up to thirty days against his or her parent’s permis­sion. This allowed time for the family situation to stabilize and for others to intercede to help assess whether the youth should return home.

Our shelter was a massive building on the corner of 41st Street and 10th Avenue, at the entrance to the Lincoln Tunnel.

Me: I'm here to help reunite you with your son. John doesn't want to speak with you right now, and under the law, he's entitled to do that. Would it be helpful if we sat down on the bench over here and discussed what we can do today?

Parent: No! Give me my son!

Me: I understand it must be very frustrating to not be able to speak with him right now. I certainly would be upset if someone kept me from speaking with my child. John is asserting his right to stay in the shelter at this point, and we need to honor that right. Would it be helpful if we discussed what we can do today?

Parent: No. Give me my son. [Sometimes accompanied by expletives and fingers jabbing in the air.]

Me: That's not going to happen today. The law allows your son to refuse to speak with you right now. If we sit down and talk, we can discuss what we can accom­plish today. Would that be helpful to you?

Parent: No.

Me : Then what would be helpful to you?

Parent: It would be helpful if you gave me my son.

Me: I understand you want to see your son. That's not going to happen today. I would be glad to discuss what we can accomplish. Would that be helpful?

Surprisingly, at that point, the conversation usually changed. After a few more rounds of “No,” the parents would eventually sit down and talk. While it sounded like a very free-form conversation, the process worked because of a few key elements:

I delivered a clear, consistent message: They were not going to speak with John today.

I bolstered my position by referencing the law.

I validated the emotion in the situation.

I offered them control of the conversation.

I stayed calm and didn't get defensive or angry: I knew they themselves were in crisis as much as their child was.

I dealt with this scenario about once a month. While the parties involved were individuals, the issues were as significant to them as any faced by governments over arms negotiations gone awry or large corporate entities up against a recall or scandal.

The same five elements are important when advising a client in crisis. Law­yers guide their clients through a variety of crises. Often, the client is unable or would be ill-advised to speak for herself. Whether that client is a minor or a major corporation, the skills involved in protecting them remain the same. The client needs a clear, consistent message from their attorney, as well as an example of how poorly the situation may wind up if the client does not heed the advice. You have to acknowledge and address the client's emotions and give them control because, ultimately, they will decide on the course of action. Finally, you'll remain calm rather than heighten the tension. For instance:

Mr. President, it's important that you do not testify before the Special Counsel.

The Special Counsel will ask many challenging questions and any slip up could result in a perjury charge and possible jail time. I know this is a witch hunt and you are being treated unfairly. There is no “witch hunt exemption” in the per­jury law, so regardless, you could be prosecuted if your story isn't 100 percent accurate. Ultimately, it's your decision. Remember that the judge or potential jury will unlikely be part of your base. I'm glad to walk you through this analy­sis as many times as it takes and to answer any questions you may have.

In this chapter, you will learn how to manage a crisis in the moment. You'll learn to:

1. Hone a clear and succinct message.

2. Support your message through stories or by leveraging authority.

3. Address the emotion expressed by others.

4. Offer the other person a semblance of control.

5. Control your own emotions when challenged.

6. Stay focused in the face of a myriad of distractions.

You will also learn to use the same skills to heighten the sense of urgency in others when that emotional response will help your position.

While some other chapters in this volume focus on theory, this chapter focuses on action; the physical things negotiators and lawyers can do and say—or avoid doing and saying—that will allow you to have more impact as you manage your way through a crisis.

I'll be drawing on both my nine years of experience as a lawyer and my twenty years of experience helping lawyers and other business profession­als communicate more effectively with clients, the courts of law and public

opinion, and regulators. The points shared are simple and straightforward. The tricky part is using them consistently in the fast-flowing and chaotic at­mosphere of a crisis.

Crises come in many forms. An effective response will depend on context.

Is your client “in crisis” meaning they are in such a heightened state of urgency that they can’t think clearly and are likely to say or do (or Tweet) something they shouldn’t?

Is your client accustomed to dealing with challenging circumstances, and they need your guidance around how to handle what to them is simply “today’s” crisis?

Are you responding to a crisis “manufactured” by a party with a narrow agenda? Are you the party with the narrow agenda trying to create an element of conflict that best promotes your agenda?

In the first three scenarios, you are trying to deescalate the situation. In the final scenario, your cause is better served by promoting conflict.

Regardless of the scenario, the factors anyone should consider are the same. In this chapter, we'll focus on the steps you need to take regardless of the context for the crisis. I'll discuss each element from the perspective of deescalating the crisis.

Hone a Clear and Succinct Message

You can't guide people through a crisis if you don't know the path to the exits. Therefore, you need to understand your own position well and articulate it clearly for an audience that is less familiar with the facts than you are. A clear message has five key components:

• It's short. Keep your core message to ten words or less in length.

• It's simple. Keep the vocabulary as straightforward as possible and mini­mize any jargon. (I'll talk later about language choice as a means of guiding the conversation.)

• It's upbeat. Focus on how to resolve the conflict rather than dwelling on the problem.

• It's framed as a benefit. The listener (i.e., the person you are addressing) should be able to understand the benefit to them immediately.

• It's repeatable. You'll have to say it several times in the same way for the other party to hear it clearly.

Keep It Short

The longer the message, the harder it will be for someone to hear it, under­stand it, and convey it to someone else clearly and simply. Ten words is about the most anyone can hear and repeat easily.

Keep It Simple

In addition to being short, the message should be delivered with simple language.

At work, we all spend more time talking to other people who do what we do and less time talking to people who do something else. Medical profes­sionals spend more time talking to other medical professionals, accountants spend more time talking to other accountants, and so on.

As a result, we all get sucked into using jargon particular to our roles at work. The extra difficulty for us as attorneys is that our field is so var­ied, and our work is often so specialized, that we frequently cannot even understand each other if we don't challenge or rethink our own jargon. Jargon can get in the way.

To remind yourself to keep the message short and the language simple, think:

“Mr. Gorbachev, tear down this wall.”

“No new taxes.”

“There was no collusion.”

The veracity of messages is also important. You'll want to avoid messages that themselves become the new crisis. We have all had moments where we made a statement and immediately said to ourselves, “Wow. That sounded so much better in my head than it did out loud.” Often it wasn't just a word choice; it was the substance of what we conveyed. For most of us, that hap­pens in an innocuous situation, such as responding to a spouse asking, “Do you mind if my mother comes to stay for a few days?” But if we are represent­ing a client in a public situation, we have to manage our language and mes­sage more carefully.

Early in the Donald Trump administration, a White House spokesperson said the White House was relying on “alternative facts” when they rebutted easily proven data regarding the size of the crowd at the inauguration. She re­peated the phrase throughout the on-air interview. “Alternative facts” became the next day's crisis and has become a punchline of sorts.

This problem is easy to avoid. Your message should make sense on its face.

Keep It Upbeat and Focused on the Benefit to the Listener

“We will decide as soon as we get the data” and “We won't decide until we get the data” both convey the same content: data first, decision second. However, the first phrasing—in the positive versus the negative—suggests we are trying to be proactive. We're eager to comply with a request. We want to move things forward. We just need information to move forward in the right direction. The second, negatively phrased statement can be heard as evasive, reticent, or timid.

When I spoke to parents on the sidewalk of 41st Street, I tried to always couple “You won't be talking to John today” with “Let's talk about how we can fix this.”

Every corporate lawyer has had to tell his or her client at some point, “You can't do that.” More successful lawyers phrase the entire conversation as: “Let's discuss options for getting there.” The lawyer will include the client's preferred option in the list but bury it at the bottom.

Repeat It Often

For a message to work, the other party must hear it clearly and recognize it as the message. The first time you say something, no one hears it. The second time you say it, it sounds vaguely familiar from somewhere. The third time you say it, the listener finally hears it as the message you are trying to deliver. This is true even if you start by saying, “The main thing I want you to know is X.” Repeating your message reinforces to the audience that this is the key takeaway.

The essence of being a good communicator is to think about how the lis­tener needs to use your information. Always ask yourself:

Why is she reading my email?

Why is he attending this meeting?

What are they hoping to get from this presentation?

The more you consider your audience's needs in the moment, the more effec­tive you will be as a communicator—especially in a crisis.

Very often, your audience will need to repeat your message to someone else so that the third person can make the decision. If the listener didn't hear your message clearly, she can't repeat it to that decision maker. She'll invari­ably deliver a twisted version of the message, not intentionally but because she didn't hear your main point as the message.

Staying on message is also the best way to deal with other voices that want to twist your central idea for their own purposes. You've chosen language that advances the agenda you want and frames the discussion to meet your needs. Having a short, sensible message that you can repeat easily and that will stay with the audience is your best defense to that offense.

Keeping your message short also helps you circle back to it when you are responding to questions. If possible and appropriate, it's best to wrap up your answers to questions with “... and that's why [message]” whenever you can.

You can easily ground your thoughts if you have a clear central idea. Rou­tinely, when speaking to a high-stakes audience, such as the press or a large swath of the public, we can get flustered and lose our train of thought. Having a clear, concise point helps us get out of the weeds and return from a tangent to get back on course.

Your choice of language will increase or decrease the crisis. Sometimes, depending on your goal in a debate, you may want to escalate the sense of crisis. Doing so involves the right word selection. If you want people to pay stronger attention to your information, frame it in terms of how it impacts an individual rather than as a data point.

Nobel prize-winning economist Daniel Kahneman, in his 2011 book Thinking, Fast and Slow, shares how framing an issue can determine the au­dience's reaction to it.² If you are trying to downplay an issue, frame it purely as a number, which doesn't engage an audience emotionally. Saying “The vac­cine carries a 0.001 percent risk of disability” does not elicit the same level of concern as saying “One child in every 100,000 will be permanently disabled by the vaccine.” The second framing of the issue causes individuals to im­mediately think of that one child and creates a heightened level of concern. Speaking in terms of relative frequency of a rare occurrence makes the event seem more likely than speaking of it in terms of absolute probability. You can use your word choice to promote the use of vaccines by talking about num­bers or discourage it by creating a sense of crisis.

The same approach will be employed against you by the media, depending on whether they support your position or object to it. Go on CNN's website and scroll down the column of headline banners. At least one or two will read, “John Doe Breaks His Silence about X.” “Breaks his silence” suggests he has been dodging questions, holding back, or somehow prevented from speaking until now. The tone creates a sense of urgency—I am suddenly curi­ous to read what John Doe has to say, even though I wasn't aware I had been interested before seeing that headline. It also creates a sense of scarcity; appar­ently, someone's been depriving me of John Doe's thoughts until now. It's basic economics that scarcity increases the value of things, even if those things are the opinions of someone we don't know.

If you are representing a client and want their thoughts noticed in a crowded, frenetic news cycle, have your client “break their silence.” It's more interesting than you “issuing a press release.”

The same is true when your client “speaks out,” rather than just “speaks.” “Speaking” isn't particularly challenging for most people and isn't noteworthy. “Speaking out” suggests taking a stand, perhaps at some personal or profes­sional risk, even though, technically, it's just speaking.

Media outlets that want to help get your message out will use the “breaking his silence” or “speaks out” approach even if you don't position your informa­tion that way.

The flip side is when your client has been screaming from the mountain­tops but to a press that is hostile to their position. In that case, the media will instead use “finally comments on” to describe any statement you issue, even if you comment on an issue within a reasonable time frame.

In both cases, the media are trying to redirect the audience's attention away from the substantive issue and toward your client’s responsiveness to the issue. If the media's behavior is in your favor, run with it. If their positioning makes your job more challenging, respond to the comment calmly. Assert that you have responded timely and reiterate your message.

Back Up Your Message with Substance

A message itself is a conclusion. In fact, sometimes it's just an opinion. It car­ries weight because of the clout of the person saying it or because of the data behind it. You can “prove” a message in two ways: by sharing evidence, or by referencing an authority.

Share Evidence to Bolster Your Message

Evidence to support your message comes in the forms of stories, anecdotes, facts, examples, and statistics. When a client is experiencing a crisis, you need evidence that everything will work out—both when speaking to the client and when speaking on the client's behalf to other parties.

Stories and their shorter cousins, anecdotes, resonate with all of us.³ Be­fore widespread literacy, the history of cultures was captured in their stories. When you tell the story of what happened to your client, or what happened because of your client's actions, think in terms of how the story will impact the listener's senses. Listeners need to experience a story; we experience events through our senses. Is there a way to tell your client's story that will transport the listener to the moment? What would they see if they had been there? What would they hear, smell, touch, or taste? The more vividly you can anchor the story with sensory elements, the more it will impact the listener.

Stories have a structure—a beginning, a middle, and an end. The begin­ning usually positions the events in time or place.

“On a cold evening, two years ago, just before Thanksgiving.. evokes an image more than “On November 17, 2016....”

Avoid being overly dramatic with lines like “It was a dark and stormy night” unless you want to be compared to Snoopy.

All stories end with a line that tells you the story is over. Aesop's Fables, from ancient Greece, all end with “and the moral of the story is....” They hit you over the head with the message and tell you the events are concluded. Fairy tales end with “... and they all lived happily ever after” to accomplish the same goals.

“That's why you must acquit” or “So, again, my client is cooperating fully with the government in this investigation” tells the audience you've finished with your story.

The middle will vary in length and in subtle ways based on your needs in the moment. Which details you include and the way you describe them might change depending on the audience.

Stories don't need to be long or elaborate—usually, shorter is better.

An example is different from a story. Think of stories as “past tense” and examples as “future tense.” An example could be posing a hypothetical or creating an image of what would happen in the future if the client took certain action. Examples can create powerful images for audiences. However, talking about the future usually requires making allowances for numerous variables. The further you get from the known facts when creating an example of future impact, the less powerful your example becomes.

Facts are data points, such as the number of votes cast for a candidate in an election, the number of people poisoned by an E. coli outbreak, and the number of gallons of oil leaked from a tanker. It should be hard for someone to contest them. The tricky part with facts is how they are put into context. After the financial collapse in 2008, I worked with countless clients on pre­sentations where they had to share dismal performance numbers with their boards. They needed to present numbers in context. Many of the presenta­tions sounded akin to: “We lost $500 million last quarter, which is good news because we had anticipated losing $800 million.”

What sounds like bad news on its face is good news when put in context.

Statistics are amalgamations of data points that allow you to bolster an argument. Stats are powerful tools, but when using them to defend a client in crisis, be prepared. An experienced challenger will ask the underlying ques­tions that might undermine the value of the stats. There's a quote usually at­tributed to British prime minister Benjamin Disraeli: “There are three kinds of lies: lies, damned lies, and statistics.” Statistics can be used and manipulated to support just about any premise. Every large law firm tries to market itself as “the biggest and the best.” The devil is in how they qualify the statistics. “We're the biggest and the best... at M&A in telecom, in New York, on Tuesdays.” The validity of stats lies in the qualifications.

Let's pull the ideas of stories and statistics together. There's a great quote that a senior leader used in a moment of crisis. “One death is a tragedy. A million deaths is a statistic.” He knew the story of one person's struggle and ultimate loss tugged at heartstrings and left a powerful impression, and also that statistics are so overwhelming they seem more like reference points. It's a powerful lesson to learn about bolstering your message. Now comes the context. The quote was, of course, by Joseph Stalin, who said it to dismiss concerns that his massacre of his own people would provoke outrage. Lesson learned.

Whether to use a story, an example, or a statistic will be driven by two elements: What's the most dramatic and readily available to you, and what is your client's bent—intellect or emotion? First, in any given situation, you may not have an easily packaged story that proves your point, references some­thing with which your client is familiar, and provokes a strong reaction. You may need to find a statistic that will work instead. In other cases, the opposite will be true—statistics may not support your argument as well as one very dramatic, recent, high-profile example. Use what you've got.

Second, if you know your client well, you'll have a sense of whether that person will be more persuaded by a story that pulls at emotions or echoes quantitative analysis of a situation. If your client is more persuaded by emo­tion, and you have a dramatic story available that supports your point, lever­age that. If your client has a more intellectual bent, be ready with the statistics, assuming there are some at your disposal.

How do stories and similar devices come into play during a crisis? Let's look at the various contexts.

If you are dealing with a client in crisis, a story or an example of how oth­ers overcame similar challenges can help calm your client. Similarly, if your client is insisting on taking a course of action you think will lead to disaster, a story of similar results can help them see the folly of their ways.

If you are speaking on behalf of your client who is under attack, you'll use statistics to blunt the scope of the matter, as mentioned above in the section on messaging, or tell stories that divert the focus of the conversation. When you frame your situation in comparison to a well-known event, you start to control the narrative. If you represent a family whose teenager has been shot by the police, you heighten the sense of crisis by saying, “It's Ferguson all over again.” The #MeToo and Black Lives Matter movements are examples of strength in numbers and in comparison. Regardless of the type or extent of harassment or abuse someone has suffered, by attaching the #MeToo char­acterization to their story, they are now included in the world of longtime, systemic, often violent victimization. The plural “Lives” in Black Lives Matter ties a single event to a greater, horrific whole.

Here, too, the language you choose is important. Let's say your client is a large, global company accused of covering up the evidence of its faulty wid­gets. The press will immediately dub the situation “Widget-gate” to draw par­allels to the Watergate coverup and to heighten the sense of crisis. In this case, your goal is to reframe your challenge to minimize the perceived scope and lessen the severity. When they call it “Widget-gate,” you politely draw a clear distinction and refer to the “simple procedural inquiry” with which you are “fully cooperating.” Tone remains important as well. Responding to allega­tions of “Widget-gate” with “WITCH HUNT!” won't help you much in the long run.

Leverage Authority

Your main authority in some instances will come from your own status. (Think of every exasperated parent's fallback argument: “Because I said so!”) Between college and law school, I spent two years teaching English at a high school in Kingston, Jamaica. In addition, I lived at and helped run a nearby orphanage. I was barely older than some of my students and was often overwhelmed by the needs of the boys at the orphanage. But at school, I had the imprimatur of “teacher,” and at the orphanage I was a de facto author­ity figure. Both gave me status, which gave me authority. As the attorney of record in a matter, as the policy director of whatever agency you serve, or as the assistant district attorney, you have inherent clout. (Of note: the above example of teaching and working at the orphanage is less than eighty words. Anecdotes don't have to be long to accomplish the goal.)

The other authority you can leverage is your own command of the facts and the law. There is no substitute for being prepared. Many lawyers and other professionals can bluff well. But even they come across with even greater con­fidence when they know they know their stuff.

Referencing a statute, citing a detail the rest of the audience doesn't know, or quoting an authority on the topic can enhance your credibility in the mo­ment, and communicating in a crisis is all about getting from one moment to the next. When I was dealing with both teenagers and parents who were in crisis, I had the benefit of knowing the law. I was a relatively new attorney, so I didn't know a lot of law, but I knew what I needed to know, and I knew more than the other person. When dealing with clients in crisis, it helped me give them confidence. When dealing with other parties, it let me speak with confidence in the face of confrontation.

Sometimes a blanket statement such as “Studies have shown that...” will bolster your position, whether you're trying to decrease or heighten the sense of urgency.

To see how many of these elements converge, consider the case of the awful murder of Mollie Tibbetts in Iowa and the thoughtful, beautiful, passionate, and compassionate letter from her father. Mollie was killed by a Hispanic, un­documented man. The senseless crime was used by some to try to galvanize support for tougher immigration laws. As threats were made against the local Hispanic population, Mr. Tibbetts wrote a letter for the local paper to deescalate the crisis. As the father of the victim, Mr. Tibbets has ultimate clout when speaking out. His message was delivered with calm, dignity, and directness. He even used occasional humor, which always cuts through the anger that often imbues a crisis with sincerity. Most important, he spoke from the heart. He seemed to be channeling his daughter's spirit in his message rather than a lawyer's carefully crafted statement, but it's something from which anyone— lawyer or not—can learn about how to react in a crisis.

Address the Emotion

Communicating during a crisis is complicated because, in a crisis, the emo­tions of those involved are by definition heightened. It's important to address those emotions before dealing with the facts. Every attorney on the losing side of a case, on the steps of the courthouse, acknowledges, “Of course, we're disappointed. But we will be appealing.” They address that emotions are involved. When leaders of the US Federal Emergency Management Agency stand before the microphones after a flood, fire, tornado, or other disaster, they don't rattle off statistics. They begin by acknowledging that they are working in communities that are in pain, that are suffering, and that need help and reassurance. For most people, emotions are stronger than reason. If you don't deal with the emotion, the other person can't hear or process the rational argument that actually fixes the problem.

There are three steps to addressing emotion in a conversation.

First, name the emotion. In professional contexts emotions are often con­sidered illegitimate:

This is work.

This is business.

I should not bring emotions to the workplace.

That's ridiculous. People get emotional all the time at work. They are happy when things are going well. They are upset and stressed when deadlines are missed or budgets are exceeded.

Emotions are especially an issue when your clients are in crisis. They them­selves are in the news. Their neighbors know they work for Enron or the other corporate pariah of the moment. When the economy collapsed in 2008, some of the companies that were expected to receive a bailout told their employees not to carry any bags or wear any garments that identified them as associated with the company, at least until the crisis abated.

We can't ignore that emotions are involved in all aspects of our lives. When we name the emotion, we give it credibility. In a way, we give it the respect it deserves:

I know you are frustrated.

I understand your doubt.

I hear your skepticism.

When we name the emotion, we let the other person know that we un­derstand that this issue isn't just about facts—it's about feelings. This puts the technical issue in perspective. Naming the emotion also allows you to manage this aspect of the conversation, meaning you get to decide, in subtle ways, what emotion is being addressed. Your job when helping a client through a crisis is to deescalate the crisis. To that end, there's one emotion you should avoid naming. When someone is angry, don't say, “I know you're angry.” It's been my experience that line will elicit one of two responses:

RESPONSE #1:

“Damn right, I'm angry! I'm pissed.”

Now you've elevated the tension and made your job more difficult.

RESPONSE #2:

“I'm not angry! I'm not angry!” said defiantly and angrily.

Once someone has denied the obvious emotion they feel, you can't address it, and it becomes the undercurrent that colors the rest of the conversation.

If you are struggling to identify the emotion in the situation, or if the other person is genuinely angry, reframe their emotion as “concern.” “Concern” is a great catch-all for emotions. In general, people don't enjoy feeling angry. It's a painful emotion, and it's exhausting. When you reframe “anger” as “concern,” people often feel a sense of relief. You're helping them deal with this uncom­fortable emotion by showing them they are rightfully “concerned” about the issue. A few people will push back and say, “I'm not concerned! I'm furious!” But most will opt for feeling “concerned.” By the way, I understand your con­cern that this might seem like manipulating people's emotions. In fact, you're helping them manage their emotions so you can deal with the underlying problem.

Second, relate to the person. If emotions are in fact legitimate, it's appro­priate that you, as another human being, should feel them too. Therefore, take a moment to close the gap between you and your audience—whether it's your client or a more public setting—and accept the emotions as understandable.

Try simple statements like “I, too, would feel this way if I were you” or “I thought so as well when I first heard this news.”

You'll then create the needed space to resolve the emotion by offering a way out.

“I thought so as well, until I learned about X.” You proffer more informa­tion as the key to how you overcame the anxiety you felt, akin to what the audience feels now.

When you relate to the other person, do so only if you can do so sincerely. If there's no way you can identify with what the other person is expressing, don't try it. You will both be, and appear, disingenuous. That will undermine your credibility.

Third, leave out “But” or “However” after acknowledging the other person's emotions or the mood of the public at large. “But” and “However” have a magical way of destroying all the goodwill you created when you named the emotion and identified with the person experiencing that emotion. Those words undermine the value of what came beforehand.

If I say to you “I know you're frustrated with this situation. However,...” I run the risk of sounding dismissive. The message conveyed is “I don't really care.” When I go to walk downstairs dressed for an event and my wife says, “Honey, that's a really nice tie, but...” it doesn't matter what's coming next. I'm changing my tie.

Avoiding “but” and “however” are especially important when apologizing, and they aren't the only way that people qualify their contrition. In a corpo­rate setting, leaders apologize only when it's been made clear that they have offended wide swaths of people. When the apology is framed as “If I have offended anyone, I am sorry,” it comes across as tone-deaf. Are you not aware that you have offended someone? Is there any doubt as to your misstep?

On September 13, 2018, my wife, Mary, took my Jeep into the dealership for a routine service check. The dealership changed the oil, rotated the tires, and checked the brakes. A few hours later, Mary picked up the Jeep. Five minutes into the drive home, she felt the car shake violently, so she slowed down mo­ments before the front driver's-side wheel came off the car, shot across a lane of oncoming traffic, and landed in a reservoir. Mary, an excellent driver, man­aged to maintain control of the Jeep and pull to the side of the road to safety. What could have been a tragedy was reduced to a harrowing story of survival.

When the tow truck brought Mary back to the dealership so she could get a replacement vehicle, the young, somewhat panicked attendant efficiently completed the paperwork for the loaner car but acknowledged what had happened by simply saying, “Yeah. I heard”—which didn't go over well with Mary.

The next day, the service manager at the dealership called. He apologized profusely, expressed his understanding of how serious the incident was, and took full responsibility. Had he not addressed the emotion in the situation, my subsequent discussions with the dealership would have been very differ­ent. (For instance, I would be mentioning the name of the dealership in this book.) From a customer service perspective, the service manager did the right thing. What about from a legal liability perspective?

The service manager knew no one had been hurt. Had someone been in­jured in the incident, creating the very real threat of a lawsuit, should he have taken a different course of action? Some lawyers would advocate that, had someone been injured, the dealership should refer any questions or com­ments to their attorneys and not speak directly with the injured parties. In this case—a tire falling off a car shortly after the tires were rotated—there was such a clear indication of liability that it's unlikely that an acknowledgement or denial of guilt would impact the outcome of a lawsuit. In other cases, where liability isn't as obvious on its face, what should a lawyer do? Short answer: talk to your client. Is there an ongoing relationship between the parties in­volved? Is there a base level of trust? Would an apology and an acknowledge­ment of responsibility heighten that sense of trust and thereby decrease the likelihood of a lawsuit?

Studies have shown that if doctors apologize for mistakes, they decrease the chance of a medical malpractice claim.⁴ Strong doctor-patient relation­ships are built on trust. Patients are invested in the relationship. In general, we all accept that people make mistakes. When someone we trust makes a mis­take, we forgive and move on. If there is no trust, or simply no relationship, we're less likely to be forgiving. As attorneys, it's important for us to under­stand human dynamics in general, as well as the relationship between our cli­ent and the other party in a conflict in order to guide the client appropriately.

When I worked with teenagers in crisis, I routinely saw young adults de­cide to return to family situations that were unhealthy. Sometimes, I knew they were choosing the lesser of two evils—returning to a family situation that was unsupportive but tolerable, or going into foster care, with its inherent uncertainty. (“The devil you know....”) But often, understanding their choice was a matter of being less strategic and more sympathetic. Everyone, no mat­ter what his upbringing or life situation, understands that the desired human experience is to grow up in a safe, loving, nurturing family. Just because a teenager's life experience hasn't provided him with that situation doesn't mean that person has given up hope on finding that. Hope on the part of our clients sometimes gets in the way of them hearing our sound legal advice. We need to be aware of the emotion underlying our clients' decisions and address those emotions in order to give our clients sound advice.

Emotions don't come into play only with teenage clients. Let's say your corporate client is facing bad press because of a product malfunction, the bad actions of a corporate executive, or the unanticipated consequences of its advertising campaign. The general counsel or chief communications officer who contacts you has spent the last few hours being yelled at by everyone in the C-suite and dodging calls from the press. They are stressed. Stress is an emotion. You have to be the sympathetic ear, the steady voice, the strategic counselor—in that order.

Let's say you are counsel to the mayor of Atlanta in mid-2020, as violent protests erupt as a result of the police killing of George Floyd. You might ad­vise your client to address the protests rather than the police brutality that led to the violence, to leverage her platform as the city's ultimate “law and order” authority figure. But to restore order, Mayor Keisha Lance Bottoms spoke from the heart, not the handbook. She addressed other parents of young Black men with sympathy and understanding and equal fury. Addressing the emotion in the situation first allowed her to address the strife in the city with strength. Addressing only the protests and not the underlying emotion would have only exacerbated the situation, not deescalated it. That's why un­derstanding your client and their relationship to the audience is essential to navigate the crisis and determine how liability from a legal perspective fits into liability from a reputational perspective.

Offer the Other Person a Semblance of Control over the Conversation

People don't like to be “talked at,” especially when they are in an emotional state. If, after acknowledging the emotion in the situation, you say to someone “Let me tell you why that's not the case” or “Here's why we did things that way,” you're talking before they may be ready to hear you. You run the risk of coming across as controlling and pushy. Instead, offer the other person options. People feel helpless and frustrated when they feel they don't have control over a situation.

The parents I would deal with out on the sidewalk often felt as vulnerable as their child when he or she ran away from home. Now, in addition to any other chaos in their lives, they were threatened with someone—the state, a child-care agency, me—interfering in their relationship with their own child. To help them calm down, I needed to give them some semblance of control in the moment. I couldn't give them control over the situation, but I could give them control over the conversation.

If instead you ask, “Would it be helpful if I explain how we got to this point?” then the other person gets to make a decision. Making decisions im­plicitly puts us in charge in the moment. If the other person says, “Yes, that would be helpful,” you can now explain the situation. If he says, “No, that's not helpful,” you respond with, “What would be helpful for you to know?” Again, you're not giving up control of the situation, only the conversation.

Sometimes you have to run through this conversation loop a few times for the person to start calming down. Eventually, the other person hears your message and begins to focus on what can be accomplished.

This process works well not only when you are dealing with an individual experiencing a private crisis but also when you are addressing the press in the midst of a public crisis. When you are addressing the media, you're not ad-

dressing the reporters in the room; you’re addressing the audience they reach. While you don’t have control over how they eventually share your message, you’ll have the best outcome if you still follow the process outlined above. Name the emotion. Relate to the audience if appropriate. Avoid “but,” “how­ever,” and any other words or phrases that qualify the integrity of the emotion. In the case of a press conference, it’s not appropriate to ask permission before you explain the situation. Instead, you can begin by stating, “I think it may be helpful to you if I explain the following.” Then provide your response. This has a more open tone than saying, “What I want you to know is....” You come across as trying to facilitate a solution rather than push an agenda. In almost all cases, it’s best to avoid “What I want to tell you is.................... ”

The other word to avoid in a crisis is, “Look....” “Look” has become the go-to beginning of many statements and is usually delivered with a tone that says “Shut up and let me talk,” and it is often accompanied by the conde­scending finger-jab. Listen to any of the panel discussions on FOX, CNN, or MSNBC. As the moderator goes around the horn asking for input, more than half the time the speaker starts with “Look...” which creates an antagonistic tone and suggests everyone is at battle. If your goal is to come across as a reasoned professional who aims to move the discussion forward, you want to decrease the tension, not heighten the anxiety.

I have referenced throughout this chapter my conversations with the par­ents of my client, the teenager at the shelter. In those conversations, I was speaking as an attorney directly with the “opposing side” in a conflict. You could argue that I should have told the parents, “Go get an attorney and I’ll speak with that person, but not directly with you.” That would simply never have happened, and it’s where reality and the suggested legal structure collide. Every lawyer is actually a “lawyer/something else,” with the “something else” determined by her or his area of practice:

Lawyer/Social Worker

Lawyer/Marriage Counselor Lawyer/Family Therapist Lawyer/Claims Adjuster Lawyer/Corporate Raider

Lawyer/Scientist

When I worked at the shelter, I was a lawyer/social worker, representing a client who usually wanted some kind of family reunification. When I prac­ticed insurance law, I was a lawyer/claims adjuster, albeit on a large scale for multimillion-dollar professional liability claims. Even in that situation, I had to keep in mind the relationship of the parties and that the way I handled the conversation could impact the ongoing business between my client and the other party.

It's not just a matter of picking one of two hats to wear in a given situation. Our role exists on a spectrum, with a bit of both roles at play in every conver­sation. One of the challenges we face when communicating with or on behalf of our clients during a crisis is how to leverage the skills of both elements of our role to guide them through the process.

Control Your Emotions

In most human interactions, you get what you give. If you project negativ­ity or defensiveness, that's what you get in return. If you project calm and openness, you're more likely to experience the same from the other person. Your own calm demeanor makes it hard for the other person to continue to be combative. Calm is not the same as passive or disengaged. It means you manage your body language, facial expressions, and tone of voice to project involvement, interest, and commitment. Consider the following:

Breathe

If you are about to face the cameras at a news conference or meet with a reporter inquiring about a client's behavior, take a moment beforehand to take a few deep breaths. This will help you center yourself and calm your nerves. Especially if you don't consider yourself to be an anxious person, you may not realize the higher levels of adrenaline running through your body before you go in front of the cameras or speak to the press. You'll be surprised how you can feel your heart rate slow down and your nerves abate if you just take a moment to relax your breathing. Try what's called “square breath­ing.” Breath in for four seconds. Hold your breath for four seconds. Exhale slowly for four seconds. Wait four seconds before inhaling again. Two or three rounds of this breathing method before you enter a conference room, walk on stage, or meet with a client on the verge of a meltdown will help you maintain your composure and remain the calm voice in the room. When I met with clients or parents in crisis, my ability to stay calm helped the other person to eventually do the same.

Manage Your Body Language and Tone

Avoid any body language that can be perceived as controlling or closed off. Relax your arms by your side and keep your hands open rather than clenched. If you put your hands in your pockets, you can appear to be too relaxed or disengaged. If you fold them across your chest, you might be misperceived as remaining closed off from other ideas.

Equally important (if not more important) than the actual words you speak is your tone. These cues will affect how others interpret what you say. You can come across as self-assured and assertive or as tentative and uneasy. Many people have adopted a habit referred to as “upspeak” where their voice inflects up at the end of a sentence, suggesting they are asking a question rather than making a statement. It's a manner of speaking that is more preva­lent among younger generations and is often intended to make the speaker sound more conciliatory and less forceful. Unfortunately, it can also come across as less confident or poised, which can undermine your message.

The easiest way to minimize upspeak is to use crisp gestures when speak­ing. Your gestures don't need to be large or over the top. They merely need to be definitive.

The vocabulary equivalent of upspeak is “qualifying language.” Qualifying language is any phrase that qualifies the integrity of the content we are shar­ing. The most common examples are:

“Kind of”

“Sort of”

“Basically”

“Essentially”

If I say “It's basically X,” I'm telling you “it's not X. It's near X, or in the vicin­ity of X, but it's not X.” If I say that to the press during a crisis, the first thing a competent journalist would ask is: “What's the gap between X and where we are?”

There are so many times when we as lawyers must qualify our statements. We'll never tell a client “You will win the case.” We can't guarantee it. As a re­sult, we often adopt a more qualified tone and approach in general. However, that doesn't serve us well in a crisis. It's not helpful to tell a client in crisis “We probably need to do X?” with our voice inflecting up at the end as if it's a question. If we're speaking to the press, it isn't helpful to say “We're sort of upset with the court's decision? We're going to appeal?” You can't advocate with questions, and you aren't leading unless you sound sure of yourself.

Maintain Your Eye Contact

Looking down at your notes when someone is asking a question or challeng­ing an idea can make you seem dismissive. Look at your notes when you need to while you are speaking, but look at individuals when you are both deliver­ing your content and listening to their questions.

The best way to manage your eye contact and settle your nerves simulta­neously is to speak to one person at a time for a full thought. When you’re talking to that one person, he or she is the only person on the planet at that moment. If you scan the room, you will notice all the activity around you. You’ll either get distracted or become overwhelmed. If you talk to one person, you’re much more likely to adopt a confident, conversational tone and appear more comfortable with yourself and your surroundings. If you look comfort­able with yourself in front of the camera, you’ll be more convincing.

If you are speaking to the media, focus on and talk to that individual re­porter, not her ultimate readers or listeners. If you are giving a statement on camera, envision a single individual listening to you on the other side of the lens, not the mass audience you might be reaching. It’s not in the nor­mal human experience to speak to thousands or tens of thousands of people. There’s no way to do that and sound natural. Instead, just talk to one person at a time, or envision one—ideally friendly—face. You’ll bring a stronger, more confident voice to that conversation.

Be Conscious of “Personal Space”

If you move too close to someone when they are in crisis, you can come across as threatening. If you move away from someone who has asked a tough ques­tion, you can be perceived as evasive. Find a comfortable distance from the other person and maintain that distance during the discussion.

Stay Focused in the Face of Distractions

In a crisis, focus on the most important elements to be addressed. The Hol­lywood films The Right Stuff and The Martian—both about NASA scientists dealing with crises in outer space—provide great lessons on how to act during a crisis. One line used in both movies is “Work the problem.” Space is only somewhat less forgiving than the press can be, and the dangers of a vacuum are as tangible whether you are in orbit or are facing a microphone and can’t think of what to say next.

You “work the problem” differently if you are helping your client through the crisis or addressing the press on behalf of your client.

When dealing with your client, your job is to constantly remind the client of the real issue at hand. You are likely to see that problem more clearly than the client because he or she is in crisis and you are not. As side issues arise, you must have a very clear sense of what's important, so you can decide in the moment if that's something to address or to table until later. If you know yourself well enough to realize that you can sometimes allow your atten­tion to wander, or unwisely try to deal with multiple issues at the same time, you'll serve yourself and your client better by resisting such impulses. Warren Buffett once said, “Make two priority lists. List A contains your top priorities. Your goal should be to never deal with List B.” The instinct for some of us is to try to manage everything at once. Bad idea. How do you know what's most important? Listen to your client. If you've done a good job listening up front, asked the right questions, confirmed your understanding of what's important, and checked in again occasionally, you'll know where to put your energy. Once you and the client agree on what's most important, you can make an informed decision about what not to address.

In the case of communicating with the press in a crisis, you “work the prob­lem” first by controlling the message by defining the problem. You can change the audience's view of the crisis by characterizing your response to it. Politicians are masters of this, as are the panels of commentators on the evening news. Each side frames the issue presented in a way that supports its position.

Second, you “work the problem” by ignoring the tangential issues. If you're giving a press conference and the press is trying to get helpful, accurate infor­mation to the public, you'll listen carefully to their questions and respond as succinctly as possible. In that setting, their questions aren't side issues; they are the main reason for your briefing. If you're dealing with a hostile press, their questions are intended to derail you or to reframe the issue in their own preferred language. In that case, simply repeat your message so that you con­tinue to control the dialogue.

Earlier in this chapter, I discussed ways to respond to tough questions. Keep in mind that questions that begin with “Wouldn't you agree that...” or “Don't you think that....” aren't questions at all. They are statements by the interviewer thinly disguised as questions. The interviewer wants you to commit to a statement worded in a way that gives the interviewer the exact sound bite they are seeking. When you hear a question that asks you to con­firm language you didn't use, be very leery of agreeing. Instead, reaffirm your main message.

Conclusion

During a crisis, everything is heightened—awareness of timing constraints, the importance of snap decisions, your adrenaline. You’ll perform better in the moment if you’ve honed a clear and simple message, stick to that message and repeat it often, address the inherent emotion in the situation, manage your own emotions by staying calm, and avoid getting sidetracked.⁵

NOTES

1 N.Y. Executive Law §532.

2 For Kahnemans discussion of framing, see, Daniel Kahneman, Thinking, Fast and Slow 334-76 (2011).

3 The U.S. Supreme Court has echoed these sentiments:

A syllogism is not a story, and a naked proposition in a courtroom may be no match for the robust evidence that would be used to prove it. People who hear a story interrupted by gaps of abstraction may be puzzled at the missing chapters, and jurors asked to rest a momentous decision on the story’s truth can feel put upon at being asked to take responsibility knowing that more could be said than they have heard. A convincing tale can be told with economy, but when economy becomes a break in the natural sequence of narrative evidence, an assurance that the missing link is really there is never more than second best.

Old Chief v. United States, 519 U.S. 172, 189 (1997).

4 Jennifer K. Robbennolt, Apologies and Medical Error, 467 Clin. Orthop & Relat. Res. 376 (2009).

5 The author acknowledges the assistance of Allison Barrett of Exec∣Comm, LLC, in the preparation of this chapter.