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The Aftermath of a Crisis:                     Are You Prepared?August 15, 2012Walter & Prince LLPFred Walterwww.walterpri...
The Scene     It’s 30 minutes since a massive explosion rippedthrough your part of a major construction site. Firerescue a...
The SceneYour foreman says that three people are at thefront gate and want to talk to you: A Cal/OSHAinspector, an Assista...
The SceneFirst thing: Take a deep breath.Second thing: Know that you will have to makechoices, and that you will be second...
The Scene“The time to learn how to handle a crisis is not during  one.”  -- Lisa Prince“Disaster Psychology” – Paul Gantt,...
The Legal Context: Them vs.                Us   Fire                             You   Police                         ...
Legal Liabilities:The Litigation Diamond                Third Parties    Employee                           Police,      &...
Constitutional Rights   Right to Demand a Warrant     (4th Amendment – applies to all)     Right to Remain Silent     ...
Privileges AgainstDisclosure of Information            IAttorney – Client Communications  Extends to all forms of communi...
Privileges Against Disclosure of Information             IIAttorney Work Product  Key  Phrase: “in contemplation of litig...
Attorney Work Product Triangle                      Client       Attorney                     Investigator                ...
Privileges AgainstDisclosure of InformationLimited or no coverage for:  Discussions    with brokers    Photographs    W...
At the Start   Decide Level of Protection Needed       Appropriate to the Event       Appropriate to the Potential Liab...
At the Start   Use your Attorney – Client privileges   Consider Using Specialists     Consultants     Investigators  ...
The Working Group   As Small As Possible   Specific Roles     Supervision of the Investigation     Media Contact     ...
Protecting the Working             GroupConfidentiality Protections will apply to: Client representatives Attorney-retai...
Protecting Working GroupsNo protection for:   Broker   Broker’s representatives   Consultants… unless specifically reta...
Issues   Responding to Demands to Enter / Interview /    Warrants   Responding to the Families   Responding to the Medi...
Permission to Enter   DOSH, other agencies need permission    to enter     (Police   in emergency do not)   Pros/Cons o...
Responding to the Family   Initial contact from as high in the company as    possible   Should we say we’re sorry?   Sh...
Responding to the Media   One spokesperson, the higher the better   Create a short message and stick to it   No specula...
Abatement and OPU’s   Is Abatement an Admission of Fault?   Do we have to agree with DOSH’s    expectations on abatement...
Protecting Your           Investigation:     Pros / Cons of Statements             PRO                              CON  ...
Investigation:       Pros / Cons of Interview                Notes             PRO                              CON   Not...
Written Reports   Do I prepare a written report?   When do I NOT prepare a report?   What do I include?   What do I le...
Disclosure of Reports toDOSH:Scope of disclosure to DOSH is defined by Title 8 CCR sec. 1509 and sec. 3203                ...
Disclosure of Reports To DOSH:   Verification that an investigation was done,   Identity of the investigator,   Any uns...
Disclosure of Reports To DOSH:         What’s missing?            Walter & Prince LLP - 2012
Disclosure of Reports To DOSH:           Requirement to include   opinions or conclusions about causation                 ...
Final Thoughts…..•   Each crisis is different. That’s why it’s a Crisis•   Understand that you will have to be flexible•  ...
Resources   Walter & Prince LLP       www.walterprincelaw.com           E-zines, articles and further links       http...
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Crisis Management

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Transcript of "Crisis Management"

  1. 1. The Aftermath of a Crisis: Are You Prepared?August 15, 2012Walter & Prince LLPFred Walterwww.walterprincelaw.com
  2. 2. The Scene It’s 30 minutes since a massive explosion rippedthrough your part of a major construction site. Firerescue and paramedics are on scene attending tothe injured. Most of them appear to be youremployees. You are pretty certain some of themhave died. Walter & Prince LLP – 2012
  3. 3. The SceneYour foreman says that three people are at thefront gate and want to talk to you: A Cal/OSHAinspector, an Assistant DA and an attorney who sayshe represents the family of one of your employees. What do you do? Walter & Prince LLP - 2012
  4. 4. The SceneFirst thing: Take a deep breath.Second thing: Know that you will have to makechoices, and that you will be second-guessed. Walter & Prince LLP - 2012
  5. 5. The Scene“The time to learn how to handle a crisis is not during one.” -- Lisa Prince“Disaster Psychology” – Paul Gantt, et al., Professional Safety, August 2012 Walter & Prince LLP - 2012
  6. 6. The Legal Context: Them vs. Us Fire  You Police  Broker DOSH & BOI  Insurance carrier EPA, AQMD, Etc.  Risk Managers CSLB  Attorneys Media  Experts District Attorney  Investigators PI Attorneys  Mother Walter & Prince LLP - 2012
  7. 7. Legal Liabilities:The Litigation Diamond Third Parties Employee Police, & Kin (S&W) ER District Attorney DOSH, EPA, etc. Walter & Prince LLP - 2012
  8. 8. Constitutional Rights Right to Demand a Warrant  (4th Amendment – applies to all)  Right to Remain Silent  (5th Amendment – individuals only) Due Process / Equal Protection  (13th Amendment and Calif. Constitution) Right to a Fair Hearing (same) Walter & Prince LLP - 2012
  9. 9. Privileges AgainstDisclosure of Information IAttorney – Client Communications  Extends to all forms of communication  Applies to communication by those engaged by the attorney Walter & Prince LLP - 2012
  10. 10. Privileges Against Disclosure of Information IIAttorney Work Product  Key Phrase: “in contemplation of litigation”  All investigation materials  Reports, letters, e-mails, notes, calculations Walter & Prince LLP - 2012
  11. 11. Attorney Work Product Triangle Client Attorney Investigator Walter & Prince LLP - 2012
  12. 12. Privileges AgainstDisclosure of InformationLimited or no coverage for:  Discussions with brokers  Photographs  Written / recorded witness statements Walter & Prince LLP - 2012
  13. 13. At the Start Decide Level of Protection Needed  Appropriate to the Event  Appropriate to the Potential Liabilities I’d Like to Phone A Friend Assign Roles/Responsibilities  Pre-determined to extent possible  Agencies, Employee Liaison, Media Create a Working Group Walter & Prince LLP - 2012
  14. 14. At the Start Use your Attorney – Client privileges Consider Using Specialists  Consultants  Investigators Keep records required by Cal/OSHA, others separate from internal audits/reports/memos/notes Walter & Prince LLP - 2012
  15. 15. The Working Group As Small As Possible Specific Roles  Supervision of the Investigation  Media Contact  Family Contact  Agency Liaison Frequent Check-ins Walter & Prince LLP - 2012
  16. 16. Protecting the Working GroupConfidentiality Protections will apply to: Client representatives Attorney-retained consultants Insurance claims representatives  Based on contractual obligations, not attorney- client protections Walter & Prince LLP - 2012
  17. 17. Protecting Working GroupsNo protection for: Broker Broker’s representatives Consultants… unless specifically retained to assist counsel in the investigation Walter & Prince LLP - 2012
  18. 18. Issues Responding to Demands to Enter / Interview / Warrants Responding to the Families Responding to the Media Abatement Walter & Prince LLP - 2012
  19. 19. Permission to Enter DOSH, other agencies need permission to enter  (Police in emergency do not) Pros/Cons of Denying Permission, Demanding a Warrant Negotiating trade-offs Walter & Prince LLP - 2012
  20. 20. Responding to the Family Initial contact from as high in the company as possible Should we say we’re sorry? Should we attend the funeral?  Who should attend? Scholarship Funds and Donations Walter & Prince LLP - 2012 Walter & & Prince LLP2012 Walter Prince LLP - - 2012
  21. 21. Responding to the Media One spokesperson, the higher the better Create a short message and stick to it No speculation, no opinions If you don’t know, say so Never say “No comment” Try not to be led No sunglasses Walter & Prince LLP - 2012
  22. 22. Abatement and OPU’s Is Abatement an Admission of Fault? Do we have to agree with DOSH’s expectations on abatement? Preserving the Evidence Orders Prohibiting Use  Beclear on the scope of the OPU  Meet with the DM ASAP Walter & Prince LLP - 2012
  23. 23. Protecting Your Investigation: Pros / Cons of Statements PRO CON Immediate  Lack of reflection recollection of events  Prone to blame, Recollections firmly a assumptions, part of the “record” speculation  Difficult to revise  Discoverable Walter & Prince LLP - 2012
  24. 24. Investigation: Pros / Cons of Interview Notes PRO CON Not discoverable if  If not immediate within attorney-client recollection, memory privilege may fade Witnesses not locked  May be influenced by into first impressions “cross- contamination” from other witnesses  The grief counselor dilemma Walter & Prince LLP - 2012
  25. 25. Written Reports Do I prepare a written report? When do I NOT prepare a report? What do I include? What do I leave out? Walter & Prince LLP - 2012
  26. 26. Disclosure of Reports toDOSH:Scope of disclosure to DOSH is defined by Title 8 CCR sec. 1509 and sec. 3203 Walter & Prince LLP - 2012
  27. 27. Disclosure of Reports To DOSH: Verification that an investigation was done, Identity of the investigator, Any unsafe conditions / practices found in the investigation, and Actions taken to remedy them Walter & Prince LLP - 2012
  28. 28. Disclosure of Reports To DOSH: What’s missing? Walter & Prince LLP - 2012
  29. 29. Disclosure of Reports To DOSH: Requirement to include opinions or conclusions about causation Walter & Prince LLP - 2012
  30. 30. Final Thoughts…..• Each crisis is different. That’s why it’s a Crisis• Understand that you will have to be flexible• Not knowing exactly what to do is OK• There are no perfect answers, just better ones• Breathe – slow down the process Walter & Prince LLP - 2012
  31. 31. Resources Walter & Prince LLP  www.walterprincelaw.com  E-zines, articles and further links  http://www.caloshablog.com/  Erratic blog on timely issues Fed/OSHA Establishment Search  www.osha.gov/oshstats/index.html Cal/OSHA Regulations  www.dir.ca.gov/samples/search/query.htm Cal/OSHA Enforcement (DOSH)  www.dir.ca.gov/DOSH/dosh1.html Cal/OSHA Appeals Board  www.dir.ca.gov/OSHAB/oshab.html Walter & Prince LLP - 2012
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