Bernstein Crisis Management. Crisis response, prevention, planning, and training.

Crisis Manager Internet Newsletter about Crisis Management

© 2009 Jonathan Bernstein
Circulation: 4,500+
Estimated Readership: 17,000+


Some people can't tell a lie, others can't tell the truth, and unfortunately most people can't tell the difference.

John Boe, Motivational Speaker and Trainer


Editor's Note: While this article is directed at attorneys, I'm sure PR professionals will see how it applies to our work as well.

The Age of Obama & The Court of Public Opinion
New Opportunities for Trial Lawyers
New Threats for Defense Counsel

By Jonathan Bernstein

The Age of Obama could be a particularly lucrative period for trial attorneys to pair legal strategy with effective Internet-centered communication to the Court of Public Opinion, communication that marries the best legal strategy with sound public relations/issues management techniques. Which also means that defense counsel needs to be prepared when that happens!

I am not an attorney. But wise legal counsel have told me that while it violates ethical guidelines for attorneys to influence the jury pool, communicating with the Court of Public Opinion is entirely appropriate for the purposes of:

  • presenting an accurate picture of your client to the media and other audiences;

  • informing the public of wrongdoing by specific organizations and/or industries; and,
  • telling the public how to access legal counsel when they believed their rights have been violated.

The Litigation Environment

Now, as a layman (who happens to work with lawyers a lot) let me assess the apparent litigation environment created by the economic downturn and the messaging done by President Obama and members of his administration.

1. Fear.

Everyone's scared about money - making it, spending it, having it taken away. Fear often translates into anger, and anger seeks a target.

2. Many Industries Have Damaged Reputations.

Specific industries have been publicly tarred and await feathering, e.g., bankers, auto manufacturers (and their related loan companies), and other types of lenders. There has also been significant collateral damage to the reputation of all big businesses, whose credibility factor will be lower than in the past at the beginning of any contentious legal matter pitching business vs. consumer.

3. Hard Decisions Coming.

Even industries with generally good reputations will be making hard decisions that will have a negative economic impact on all of their stakeholders (important audiences, internal and external). In the next several years, there will be far more than the usual number of layoffs, foreclosures, collection actions and other highly unpopular yet legally sensitive actions.

4. Mistakes Convert To Complaints.

When lenders or other businesses take action against individuals or groups, they are going to make mistakes, and when they do, trial attorneys will be there to represent the rights of the victims via individual or class action complaints.

The Communications Environment

1. The 24/7 News Cycle.

The media - and that has to include major blogs and websites - is operating on a vociferous 24/7 news cycle and tends to have an "anti-big business" bias that has been exacerbated by the types of messages communicated in the past two years by both the Bush and Obama administrations.

2. So Many Choices.

The means by which trial counsel (and others) can communicate with prospective clients and the media has expanded exponentially in recent years.

3. The Weakness Of Defense-Focused Firms.

Many law firms primarily focused on defense are still using 20th Century strategy and tactics to communicate with stakeholders, ceding a distinct advantage to savvy trial attorneys.

4. Corporate Crisis Management Practices.

Crisis management is sometimes an integral component of a corporate communications office and, when it is, plaintiff's counsel appears, increasingly, to be ready to challenge that capability. At the same time, many companies are weak in this area and trial attorneys play on that weakness.

5. The Mistakes Made By Some Trial Attorneys.

Plaintiff's counsel who do understand what's typically called "New Media" tend, in my experience, to employ it incorrectly in terms of strategy, messaging and tactics. Specific mistakes can include:

  • Failure to understand which tactics will best reach targeted stakeholders for any given matter; there is no "one tactic fits all" approach.
  • Misunderstanding - fueled by "we're gonna bilk the lawyers because they don't understand it" consultants - about what it should really cost, for example, to run an effective Pay-Per-Click (PPC) advertising campaign, create a website, or launch a blog.
  • Inappropriate messaging - most commonly, "hype."

The Opportunity

Trial counsel in the year 2009 will use opportunities to legitimately employ the Court of Public Opinion in support of wronged parties via:

1. Search Engine Optimization

There are many techniques that can be employed to ensure that counsel controls what is found for the key terms most related to their legal matter, without straying into the use of methods that can get them in trouble with major search engines.

2. Blogospheric Strategies

The worldwide network of blogs has been dubbed the "blogosphere" and communicating with that network in many ways resembles intentionally introducing a virus into the human body. If done carefully and appropriately, a virus specially designed to carry a message will, de facto, reproduce itself in many more locations than anyone personally places it. If done wrong, that message, at best, won't multiple to counsel's benefit and, at worst, the message can actually harm their case.

3. Points-of-Presence

Every website or blog, every social media or networking page, and other locations where a firm, its bio, and its message can be found is called a "point of presence" (POP) and must be leveraged fully in support of legal and marketing strategies.

4. Self-Publication

Traditional media is important to the extent one can garner their limited cooperation, but self-publication ensures 100% control of the message. What many don't know is just how many ways there are to self-publish online, in print and broadcast formats, both at online locations you own and elsewhere.

If trial attorneys correctly engage the Court of Public Opinion, I believe that they will certify more class actions, achieve settlements more frequently and win more trials. In short, a good year for members of your local Trial Lawyers association.

And, if you're on the receiving end side of a complaint, you'll need to be prepared to counter trial attorneys' aggressive strategies employing 21st Century communications tactics.

Finally, if you take NO action to adapt to the latest litigation-related communications strategies, you're going to lose a lot of business!

Jonathan Bernstein, editor of "Crisis Manager" and president of Bernstein Crisis Management, Inc., has more than 25 years of experience with litigation-related public relations, usually contracted to defense or trial attorneys. Contact, (626) 825-3838

Editor's Note: The ability to detect prevarication can prove invaluable in crisis situations. John Boe gives us an excellent primer on this topic.

The Truth About Lying
By John Boe

Some people can't tell a lie, others can't tell the truth, and unfortunately most people can't tell the difference. Can you tell when someone is pulling the wool over your eyes? Whether you're an attorney selecting a jury, a manager interviewing a new agent or a salesperson making a presentation, your ability to quickly and accurately discern the truth greatly enhances your effectiveness. Fortunately, having the ability to sort fact from fiction is an important communication skill that can be learned.

Aside from con men, compulsive liars and some politicians, most people become uncomfortable when telling a lie and transmit their deceitful behavior through their body language. While they may sound convincing, their gestures speak louder than their words. Consequently, they reveal their deceit nonverbally. While it's not always easy to spot deceptive behavior, there are many subtle yet discernible clues to the trained eye.

Body language is a mixture of movement, posture and tone of voice. Studies show that nonverbal communication has a much greater impact and reliability than the spoken word. Therefore, if a person's words are incongruent with his or her body language gestures , you would be wise to rely on the body language as a more accurate reflection of their true feelings. During the selling process it's important to remember that body language is not a one-way street. While you're evaluating your prospect's body language for signs of honesty and credibility, he or she is subconsciously observing and reacting to your gestures as well.

Some People Can't Handle the Truth

The truth sometimes hurts and few business or personal relationships could survive the harsh reality of total honesty. While honesty is certainly the best policy, the truth is, that in our day-to-day encounters, it's not always diplomatic or socially acceptable to be completely honest. To spare the feelings of others, we have learned the usefulness of telling half-truths, fibs and white lies.

During the selling process, some people have difficulty saying "no" and will actually tell you that they are interested in order to avoid potential conflict. As the pressure of making a decision builds, prospects will frequently use half-truths or lies to either stall or disengage from the selling sequence. While your prospect's words say "yes," his or her body language indicates "no way." By being able to recognize the inconsistency between your prospect's words and his or her gestures, it is often possible to flush out concerns, overcome their objections and make the sale.

See No Evil, Hear No Evil, Speak No Evil

Eye, nose and mouth movement, along with hand gestures, are the four major nonverbal cues typically associated with lying. The statue of the Three Wise Monkeys accurately depicts the primary hand-to-face gestures associated with deceit. When a person is doubtful or lying, they'll often use their fingers to block their mouth as if they were filtering their words. This hand-to-mouth gesture is commonly referred to as "speak no evil." The second hand gesture associated with deceit is called "see no evil," and it occurs when a person rubs or touches their eye(s). The third hand gesture "hear no evil" is displayed when a person covers or drills a finger into their ear(s).

If people use one of these gestures while they're talking, it indicates that they are being deceitful. On the other hand, if they are displaying one of these gestures while someone else is talking it indicates that they doubt the truthfulness of what is being said. These three gestures should be considered red flags. When you encounter one of these gestures during your presentation, it is a good idea to gently probe the subject matter with open-ended questions to encourage your prospect to voice his or her concern.

In addition to the three hand-to-face gestures, eye movement is another reliable indication of deceit. It's normal for a person to look up to his or her left when thinking about the past and up to the right when thinking about the future. If you ask a person a question from his or her past and they look up to their right, they're making up a response. Law enforcement personnel and customs agents are trained to routinely monitor eye movement during interviews.

Micro Gestures

According to Paul Ekman, professor of psychology at the University of California, San Francisco, two of the most common micro gestures that are associated with deceit are the nose wrinkle and the mouth curl. The nose wrinkle is the same gesture that occurs naturally when you smell something offensive. The other facial micro gesture is a slight downward curl of the corners of the mouth. Even liars who make a conscious effort to suppress all of their major body gestures, will still transmit micro gestures. People sometimes lie, but their body language always tells the truth!

John Boe presents a wide variety of motivational and sales-oriented keynotes and seminar programs for sales meetings and conventions. John is a nationally recognized sales trainer and business motivational speaker with an impeccable track record in the meeting industry. To have John speak at your next event, visit or call 877-725-3750.

Bernstein Blogging Update

The Bernstein Crisis Management blog continues to discuss "stuff" you haven't seen in the ezine as well as giving you a place to sound off on newsletter articles. Recent posts include:

  • Blog's the Word
  • Hamburger - no, make that - Homeowner Helper
  • Bad Bank PR
  • Preparedness
  • SEO Growth

Please visit and chime in!


Refer Clients, Earn Referral Fee

Within the public relations profession, as with many others, referral fees are commonplace and Bernstein Crisis Management is pleased to pay such fees, generously, when the referrer's own industry doesn't preclude receiving them. For more information, call Jonathan Bernstein at 626-825-3838.

Keeping the Wolves at Bay 3.0 Reviewed

"Keeping the Wolves at Bay" is much more than another media training guide - it is perhaps one of the most concise, insightful, useful and savvy guides to strategic thinking about reputation issues available.

Gerald Baron
Founder & CEO of PIER System and host of

"It's like a Swiss Army knife -- lots of cool tools in a compact package. In case of emergency, grab this."

Steven R. Van Hook, PhD
Publisher, About Public Relations

In addition to individual and business usage, the manual is now being required as a textbook at Seton Hall University, Grand Canyon University, and Singapore Management University, amongst others. It is available in both PDF and hard copy formats at, with reseller arrangements available for collegiate bookstores.

Jonathan Bernstein also offers on-site media training worldwide, using this manual as the basis for training. Write to

Internet Counter-Intelligence CD-ROM

In a one-hour teleseminar recorded in December 2007, search engine optimization expert Diana Huff interviewed Jonathan Bernstein, a pathfinder and innovator in the field of Internet-centered crisis management, who described how a wide range of companies have been damaged by the Internet's virtual terrorists, and how some companies have been responding effectively.

In this one-hour session, you'll learn how to conduct your own Internet vulnerability audit; develop strategies for identifying your foes -- activists, disgruntled employees, or unhappy customers -- and tracking Internet chatter; build the case within your organization for ensuring someone is monitoring the blogosphere, news, and Internet forums every day; plan for an Internet crisis and, when one hits, assess the situation to determine an appropriate response; develop the action steps you can take to neutralize attacks, including starting your own blog and developing collateral such as brochures, video, podcasts, and Web links to other reputable and informative sites; and effectively use search engine optimization tactics -- not just because you want customers to find your products -- but so you can beat these guys at their own game!

Available at, as are our other titles.

Disaster Prep 101

Bernstein Crisis Management is pleased to present one of the most comprehensive and user-friendly family preparedness texts available today. "Disaster Prep 101." by Paul Purcell, goes above and beyond the simplistic "72-hour kit" concept and provides simple, yet detailed educational material that will drastically improve the ability of any family to respond to all manner of disasters or emergencies. This preparedness package contains over 400 pages of well-organized, original preparedness material written in an easy-to-understand, non-panic format; 80 pages of family data forms and worksheets (many of which are also useful to the employer); and a 2-CD set containing two interactive and searchable links collections for additional educational sources; all the family data forms and worksheets in softcopy format; and a complete emergency reference library of over 450 additional books and training manuals! US$59.95. Available here.


Bernstein Crisis Management, Inc. has formal or informal co-promotional and mutually beneficial business associations with a number of the services we mention periodically in this newsletter. No, we can't go into details because that's confidential, proprietary, etc. But our relationship is NOT "arm's distance" and you should know that, since we regularly write about these services as we use them for crisis and issues management or other purposes. That said, you should also know that Bernstein Crisis Management sought the relationships because its staff is convinced that these services are the best of their kind for Bernstein Crisis Management's needs and those of its clients. If you have any questions about these relationships, please contact Jonathan Bernstein, (626) 825-3838.


Jonathan Bernstein is president of Bernstein Crisis Management, Inc.,, a national crisis management public relations agency providing 24/7 access to crisis response professionals. The agency engages in the full spectrum of crisis management services: crisis prevention, response, planning & training. He has been in the public relations field since 1982, following five-year stints in both military intelligence and investigative reporting. Write to


GUEST AUTHORS are very welcome to submit material for "Crisis Manager." There is no fee paid, but most guest authors have reported receiving business inquiries as a result of appearing in this publication. Case histories, experience-based lessons, commentary on current news events and editorial opinion are all eligible for consideration. Submission is not a guarantee of acceptance.


When I find a site that I think will be useful to my readers or site visitors, I put it on our Links page. If you have a site that would be of specific use to crisis managers and want to discuss a link exchange or other cooperative effort, please write to me,


All information contained herein is obtained by Jonathan Bernstein from sources believed by Jonathan Bernstein to be accurate and reliable.

Because of the possibility of human and mechanical error as well as other factors, neither Jonathan Bernstein nor Bernstein Crisis Management is responsible for any errors or omissions. All information is provided "as is" without warranty of any kind. Bernstein Crisis Management and Jonathan Bernstein make no representations and disclaim all express, implied, and statutory warranties of any kind to the user and/or any third party including, without limitation, warranties as to accuracy, timeliness, completeness, merchantability, or fitness for any particular purpose.

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