Jim Lukaszewski's Amazon Blog

1. Only one in every 100 cases (civil or criminal) ever gets to trial. That means the odds are very high that a case will be settled, arbitrated, or dropped. Failure to communicate until the attorneys discover that the case is not going to trial can cause serious customer, employee, victim, and senior management problems.
2. In the new world of the citizen journalist, which virtually nowadays includes employees, friends, and self-appointed bloviators and commentators of afflicted companies and organizations, someone is always willing to tell your story when you hesitate to tell it yourself.
3. Techniques such as crisis Web sites can be very effective in managing much of this extraneous information and activity, ultimately mitigating and often scripting outside chatter.
4. If there’s a question, take it to the boss. Lawyers are staff advisors just like communicators. The ultimate decision is made by the boss. If the boss allows the attorneys to turn you down, then move on to other serious issues. Make your case to the boss sensibly, based on what you know is going to happen and what you know needs to be done. Once the boss makes the decision, you need to move ahead on that decision until the next opportunity to challenge it or amend it arises. Avoid taking these decisions personally. Be professional.
5. A trend in legal practice, occurring for some time, involves the addition of lawyers who were formerly communicators to legal teams to preserve the privilege against the vulnerabilities communications can create for litigation. However, from what I’ve seen thus far, there are two problems. First, one is either a lawyer or a communicator. It’s impossible to be both at the same time. Second, I have yet to meet a lawyer-communicator who really worked for the client as much as they worked as a communicator seeking acceptance from fellow attorneys. The vast majority of communications work is not protectable anyway. Having a lawyer-communicator on the legal team involved in non-protectable activities, threatens the privilege for other legal matters, concepts, or ideas that could be protected. I think plaintiffs attorneys, and prosecutors, know this, too.
   
6. Lawyers need retraining in external communication skills because they learn a combative vocabulary and verbal style that flows through into all their communications. The real benefit of sensitive, compassionate, positive thinking communication inside and outside is often lost through imposing a “legalistic” style. Generally, a very different vocabulary and strategy is required for public communication. The aggressive, adversarial, negative approaches used in courtrooms create the exact opposite impressions in the Court of Public Opinion. Frankly, I don’t believe the combative and negative approaches work in the courtroom either, but that’s an argument for another day.

There are specific instructions I give clients about working with attorneys. It is currently in revision, but look here for news of this interesting document once it’s ready for distribution.

If you need this document sooner rather than later, contact me directly at jel@e911.com.

American-based Terrorist Training Camps: U.S. Prisons

The Bronx synagogue/Stewart airbase attackers, whose operation was foiled in its execution, are Americans who have gone through the U.S. prison system.

America currently houses two million men and women in prisons across the land. This is an average of 50,000 prisoners per state. Judging by what we know of the terrorist “cell” broken up in the last couple days in New York, three things become quite apparent (based on the histories of those captured). They are products of the American prison system. This system produces three things:

• Converts to Islam (the fastest growing religion in America and in American prisons)
• Hatred of America
• Criminals with more criminal experience

By the end of this year, 900,000 prisoners will be released back into American society to be replaced by an equivalent or larger number going in for training, indoctrination, and heightened criminal motivation.

Who’s talking about this issue? Shouldn’t someone be talking about this issue?

David Ogilvy (June 23, 1911 to July 21, 1999) must be spinning in his grave.

Known as the “Father of Advertising” and someone a half century ago Time Magazine called “The most sought after wizard in today’s advertising industry,” Ogilvy was most notably known for expanding both the bounds of advertising creativity and the morality of advertising.

Imagine what David Ogilvy would say today as, according to O’Dwyer’s PR Report, “PR pros, advertisers and trade groups are crying foul over proposed updates to guidelines concerning endorsements and testimonials in advertising . . . . ” by the Federal Trade Commission (FTC).

It may be true that if these regulations are passed, they will cause sweeping change in the way products, ideas, and concepts are presented to consumers. In what way, you ask? Advertising, marketing, and PR might be a lot more truthful.

Industry positions, including my own profession, would have Jack Nicholson looking at you and saying, as he did in A Few Good Men, “You can’t handle the truth.” Sounds to me like there’s going to be a need for extraordinary crisis management and reputation recovery preparation.

Let’s see. What would actually happen if these regulations were approved? One example frequently mentioned is the product disclaimer, “results may vary.” Under the new regulations, this disclaimer would be replaced by very explicit descriptions of the variations in service, quality, appearance, etc. In another case, the pretty young actress advertising or endorsing a product must actually have used the product and gotten a result, or her limited use (or non-use) of the product must be disclosed in the ad. How about having “consumers” who endorse products in an ad be required to actually use the product, or if actors or non-users are used in the ad (and paid for their words), this must be disclosed prominently along with the advertised product. And here’s a big one, those reviewing a product, service, or an experience (such as in tourism) must disclose if they received the product for free and/or if they were paid to provide a review, or given something of value, e.g., a fishing vacation, to write about the fishing.

It is absolutely bazaar to listen to “communicators” obfuscate and whine about what’s being proposed. Dan Jaffe, Executive Vice President of Government Relations for the Association of National Advertisers, quoted in O’Dwyer’s PR Report (in April 2009 issue) said, “These disclosures go too far, are too restricting and make it impossible to apply useful information for consumers.”

It’s Jack Nicholson, again, being asked to tell us that we “can’t handle the truth.”

Other arguments against these regulations are typically silly. One argument is that the regulations create too much room for subjective interpretation. What are they talking about? The Public Relations Society of America (PRSA), of which I’ve been a member for decades and a member of its Board of Ethics and Professional Standards for much of that time, provided the circumloquitous observation that “striking a balance among governmental interests to protect consumers from deception, the proposed updates . . . are not sufficiently clear to prevent confusion and uncertainty that will have communications professionals without adequate clarity to advise the clients who rely on them.” What a pile of crap.

These industry positions raise ethical questions that deserve serious thinking and public exploration. If the goal is something other than the truth, than what is the goal?

Well, get set for some interesting stories. A number of organizations, including the Association of National Advertisers, are threatening to go to court if the FTC pursues its regulations.

Going to court on this issue reminds me of the story about the crook who staged a robbery using a pistol. Out of anger, he fired the pistol, but nothing happened. So he looked down the barrel and pulled the trigger again. It worked this time.

My prediction? Communicators, public relations practitioners, advertisers, and marketers are going to be ripped to shreds and laughed to pieces. Where should these organizations and Jack O’Dwyer’s PR Report (which editorialized along with its marketing colleagues against FTC regulations) be:

1. Consumers ought to be able to get as much information as possible to make up their own minds. Information by professional communicators should be clear, concise, constructive, and aggressively truthful.
2. The notion that too much information will confuse consumers is demeaning and arrogant. This notion insults every consumer from the 95-year old who is struggling to understand the opaque phrases of the debate (like PRSA’s) to the four-year old who is enticed by the fancy packaging of a product only to open the box and find far less than what was anticipated, whether it’s cereal, a toy, a gift for mom, or just something he or she wanted to have to feel good.
3. If a food product comes packaged in a wonderful box with pictures of all kinds of fruits and flowers on the cover, but only one or two of those fruits and flowers are actually in the product, do you really have to ask if this is a truthful depiction of this product? A six-year old could figure this one out.

The sophomoric level that this discussion is about to take was typified by O’Dwyer’s PR Report editor, John Gingerich (in an editorial in the April 2009 issue), who said it best when, at the end of a stumbly, mumbly, fumbly, bumbly, and silly 250-word editorial opposing the regulations, he summarized, “If the messages are truthful—if they motivate and captivate audiences to set goals and achieve for themselves—who cares if the spokesperson, some impossibly perfect veneration of our cultural plasticity, has never used the product? We want to see stupid, beautiful people on T.V. At least I do.”

After reading this, do you really have to guess who really can’t handle the truth?

David (Ogilvy), rest easy, old friend. This time the government is here to help.

What happened:

A Bridgeport, Connecticut federal judge awarded a teenager who had been victimized in a child pornography situation $200,000 for what the local newspaper called a, “well-heeled professional who downloaded images of her being sexually abused” (The News-Times, Tuesday, February 24, 2009, page A5; The Associated Press contributed to this story).

The defense attorney’s response to the ruling:

The first of its kind ruling drew this response from the defendant’s attorney, Jonathan Einhorn:

“It’s not a reasonable award when you consider the injuries this victim suffered related to what my client may have caused,” Einhorn said. “An award like this will probably open the floodgates.”

What this defense attorney might have meant:

“This kid is probably responsible for being in the circumstance she found herself in. She shouldn’t have been there in the first place. Where were her parents when all of this was going on?

My client is the innocent victim of readily available material on the Web. Those who produced it should be punished rather than my client, who had virtually nothing to do with it. This woman was not damaged enough to receive an award like this.”

What the defense attorney should have said:

“We abhor the abuse of any individual, for any reason. My client is already being punished by the court for his actions in this matter, adding this new burden will simply encourage others to attempt to do the same.

We will appeal this decision.”

• All employers should evaluate how they spend money on employee recognition, especially if they have taken taxpayer money in the bailout.
• Media stories on employee recognition programs (like ours, sending employees to Las Vegas for a few days of gambling and relaxation) were deliberately misleading and one-sided.
• The media erroneously call these activities junkets, boondoggles, and waste, only for highly paid executives.
• Media misrepresentations have forced Wells Fargo to cancel all its major annual recognition events for the 2009.
• Our decision especially hurts those team members who worked long hours to provide good service.
• Other losers are the service workers employed to carry out these programs at hotels, restaurants, and airlines.
• The money comes from profits, not the bailout.
• Recognition spurs competition among employees to perform better. That’s a good thing.
• Since we’ve cancelled the face to face events, this ad will have to be our thank you to employees.

What Wells Fargo meant:

• We don’t see any issue with our behavior, but our PR people told us it didn’t look good.
• Generally, we are pretty good at these kinds of events. They’re fun, splashy and, hopefully, one ups our competitors. HR likes them.
• These events showcase senior executives doing something nice, for a change, in front of employees. What’s wrong with that?
• These events give employees something other than the current mess and embarrassments to talk and think about for a short while.
• Maybe those anti-banking reporters and editorialists who are making such a stink will think twice next time. This will show them.
• Why can’t Americans appreciate how tough this job is and what we sacrifice to serve them every day?
• We just don’t get it.

What Wells Fargo should have said:

• First of all, we are very sorry for what we should have recognized was a really dumb idea from the start.
• When our customers are suffering, our role is to share their pain.
• When our customers are paying for our lunch, we owe them special sensitivity to what we actually do, including the appearance of what we do.
• Our decision called into question management’s common sense and connection to what their employees and most Americans are feeling right now, every day.
• We greatly agitated and irritated our employees who are already scared and worried about their own futures.
• We believe firmly in the importance of recognizing outstanding performance. It is motivating. It helps employees cope; especially now when times are so tense, stress grows every day and everyone is worried about so many things in their lives, including their jobs, homes and retirement.
• We’ve done some serious soul searching and have come up with a different way to recognize our employees.

Employee Recognition

• The events and splashy stuff are definitely gone, as they should have been from the start.
• After holding exploratory conversations with just 3% of our employees, it was immediately and overwhelmingly obvious that employees preferred low-key localized recognition events.
• Having dinners, lunches or even simple events in important local spaces was suggested. For example, rent a local elementary, middle school or high school cafeteria, or a train station lobby, local library or the common areas of other public buildings. Local college campuses would also work. These facilities can use the rental income and perhaps the visibility.
• Use simpler, private, personal hand-written notes of recognition.
• All employee comments are on the Website for those who care to review them.

From now on our recognition processes will have to pass four tests. This approach will prevent what happened this year from ever happening again.

1. Can we afford it?
2. Are they simple, sensible, and in proportion to what was accomplished or expected?
3. Is the recognition process part of an ongoing individual evaluation strategy rather than just a single big PR burst once a year?
4. Is the entire effort geared to truly recognize individual employees and teams rather than a black tie boost for executives? Is it largely run by employees rather than the managers?

The Employee Free Choice Act of 2009

According to The New York Times, 2008 saw the largest rise in union membership in a quarter century in the United States. The number, from the Bureau of Labor Statistics, was a gain of 428,000. According to The Times report, most new members were in government employment or education. If the Employee Free Choice Act (EFCA) passes, which is highly likely, there may well be another spike in union membership in America, probably starting this year.

Why does this law have such a great chance of passage? It’s because corporate tactics against unions and against this legislation have been incredibly negative, arrogant, and insulting to workers. Let’s look at the pattern:

1. Anti-union forces in business cite the levels of corruption in labor unions, the convictions of labor union leaders, and locals under supervision. The conviction and firing for cause of CEOs and senior business leaders, if not equal to, probably surpasses the number of union leaders who have been sentenced, are serving prison terms, or who have been otherwise prosecuted.
2. One business strategy is to discredit and disparage the concept of unions, their leaders, and the employees who show an interest in being represented. In other words, those who join unions feel victimized by business. So, business responds with aggressively negative intimidation, ridicule, and bullying, thus assuring further victimization and greater union loyalty.
3. Business owns everything (e.g., the jobs, assets, markets, resources, and even the future). Union employees only have a contract—a piece of paper or perhaps a small pamphlet—that keeps them from speaking directly to their managers and leaders, and dictates that they talk through someone who, odds are, they would rarely invite home for Sunday family dinner.
4. When union members attempt to correct their earlier judgment and decertify their unions, a decision only employees can make, management tends to jump in behind the scenes using the same negative, bullying, denigrating, and discrediting tactics I’ve just described. When this happens, of course, decertification fails.

Let me amend my statement: Unionized companies get the unions they deserve and seem to work very hard to keep them.

I know something about the attitude of union workers. I grew up in a labor household. My father was a shop steward for 29 years. He talked and acted like a victim of the Minneapolis public school system for most of his working adult life. I think he went to his grave regretting that he was never able to lead an illegal teachers strike against the Minneapolis school board.

The mistake management makes is to wage war instead of peace. It may be too late to defeat the Employee Free Choice Act. Business is using its same old tactics—fear, bullying, defensive threats, and whining. Now it’s time to begin preparing for whatever comes out of Congress this year and, perhaps, a modest increase in organized labor membership in the next few years. Here are the most important steps:

1. Learn how to wage peace with your employees, at every level, every day.
2. Dump the warriors, confrontation artists, and those who disdain, demean, and discredit. They are toxic to your relationships.
3. Get rid of friends and associates who call this approach one for “sissies”. It isn’t their war. It isn’t their peace.
4. Forget the employee surveys of satisfaction and other metrics. Get into the trenches and talk to everyone face-to-face. Commit yourself to getting to know as many employees as you can, their families, and the things that concern them. Every employee survey I’ve seen, even those from Fortune’s Best Companies to Work For, illustrate that most employees have two basic questions all of the time—“Does anyone know I’m here?” and “Does what I do really matter?” This is fertile ground for the organizer because the groundwork has been laid for employees to feel like victims most of the time.
5. Fix it now. Change it now. Question it now. Challenge it now. If business thinks its employees deserve better, business leaders had better start acting like it. If not, you better think about adding a bargaining table to your office furniture before the end of the year.