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Lawyers can brush up on crisis litigation skills

|Written By Robert Todd

Ontario lawyers will have a rare opportunity to brush up on their crisis litigation skills when some of the top minds on the subject visit Toronto for the International Bar Association’s “Crisis Litigation: the Role of the Lawyer” conference.

Barry Leon predicts material presented at the conference is going to be very intriguing.

“We expect the majority of attendees will be from outside of Canada, so it’s a great opportunity for the local bar not just to increase some strategic skills, but it’s an excellent networking opportunity to meet lawyers from different jurisdictions, for both inbound and outbound referrals,” says conference co-chairman Markus Koehnen.

The June 19-20 conference is presented by the IBA’s litigation committee of its dispute resolution section, with support from the association’s corporate counsel forum and North American regional forum.

The event, which will be held at the Park Hyatt hotel, will include advice from some of the top professionals in crisis-management communication and conflict management. Media advisers, senior internal counsel, external counsel, and judges also will be on hand to talk about the different facets of crisis litigation.

Specific topics that will be featured include the handling of crises, anticipation of imminent crises, global privilege issues, how to deal with the public during a crisis, how to respond to false information, as well as legal and ethical perspectives regarding media communication in the midst of a crisis.

The conference deals with an issue increasingly on the radar of corporate lawyers, with tainted products, environmental damage, scandals, and fraud continuing to make headlines.

The conference organizers note that lawyers need some key skills to effectively deal with crises and advise clients facing them.

The need for training is especially vital because, when a crisis erupts, time is of the essence and a response is often needed in short order. If handled improperly, a crisis can lead to litigation and could damage a corporation in both the short and long term.

Koehnen, a lawyer with McMillan Binch Mendelsohn LLP and senior vice chairman of the IBA’s litigation committee, says this conference is unlike many others that deal with similar subject matter.

“There have been historically very few conferences that focus on this type of topic at all for lawyers,” he says, adding that most conferences in this area aimed at lawyers deal with “substantive, skill-building sets in the law” that focus on things such as drafting agreements or developing advocacy skills.

“This is different entirely, as it focuses not on substantive legal skills but on skills that lawyers historically have had no training in at all.”

He says few lawyers know how to deal with media in times of crisis, nor do they know how to plan for crises.

“We’re trying to impart to lawyers non-legal skills that are going to help their clients,” says Koehnen, such as what steps to take to protect your corporate reputation.

“While lawyers may not be in the forefront of that type of work . . . it’s essential for lawyers to be familiar with those type of issues to advise their clients properly.

Because while lawyers might not be doing the actual safeguarding of the corporate reputation, if they’re familiar with the issues, they can advise the client on where to get this sort of help, what sort of help to get, and they can act as a very useful sounding board for the client’s strategy within a crisis.

“And that, I think, will make them a more valuable advisor to their client.”

Koehnen says that while all the sessions offered at the conference are packed with valuable information, a few stand out from the pack, including a pair of presentations from non-lawyers.

Harvey Pitt, chairman of the Securities and Exchange Commission in the United States from 2001 to 2003, will lead off the conference by making a presentation on anticipating a company’s next crisis. Pitt now is part of the Washington, D.C. firm Kalorama Partners LLC, which specializes in crisis planning and advice.

“That is going to be a squarely non-legal presentation,” says Koehnen. “That will then be used as a springboard to talk about specific experiences that other panelists . . . have had.”

Susan Reisler, a media coach with Toronto’s Media Profile Inc., will be part of a presentation that will tell lawyers how to deal with media during a crisis.

“The sort of skills we’re hoping to impart there, in addition to messaging techniques, also how to deal with media when you don’t really want to deal with them, and how to deal with them when you might want to deal with them, but they don’t want to deal with you,” says Koehnen.

Koehnen’s fellow co-chairman, Barry Leon of Torys LLP in Toronto, says many lawyers will be surprised to learn some important strategies in dealing with media.

“Often any lawyer is going to be concerned about a client admitting liability . . . yet, in some situations, it becomes critically important for the company to make a public statement that could be taken as an admission of liability or to admit responsibility,” says Leon.

One of the most prominent names that many lawyers will recognize among the conference headliners is Rusty Hardin, whose Houston, Tex. firm has represented a wide array of organizations and individuals in high-profile cases.

Recently, Hardin has made headlines advocating for former Major League Baseball pitcher Roger Clemens and the family of deceased actor Anna Nicole Smith. His firm, Rusty Hardin & Associates, also represented accounting firm Arthur Andersen LLP from 2001 to 2006 on a series of Texas matters that followed the financial downfall of Enron Corp.

Hardin will speak on the issue of dealing with the public during a crisis.

“He’s got a portfolio of interesting stories to tell,” says Leon.

Having a conference of this calibre so close to home, and at a price that is very reasonable when compared to local conferences, is an opportunity not to be missed for lawyers not only in the Greater Toronto Area, but across the country, says Leon.

“It’s a real opportunity for people to experience and learn close to home at a reasonable price without the usual expense of travel and accommodation that goes with attending International Bar Association conferences,” he says.

Leon says he’s spoken with several of the participants regarding the content of their presentations, and he says much of the material will be very intriguing for lawyers.

“It’s going to be a very interesting program - worthwhile for corporate counsel, worthwhile for litigators and others in law firms,” he says.

Koehnen, meanwhile, suggests the conference will help many lawyers begin dealing with their clients on a higher level than before - a level more and more clients are expecting from a profession that previously offered mainly technical expertise on the content of legislation and case law.

“Lawyers are becoming more and more involved in their clients’ businesses, and it’s a recognition that lawyers really aren’t there to act simply as technicians, which might have been a role they had at some point in the past,” says Koehnen.

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