Death Care Law

What to Do When the Media Comes Calling: Your Media Preparedness Plan

2010-07-22T11:00:00.001-05:00

By: Christopher L. Farmer

http://www.funeralbusinessadvisor.com/?p=2495

You’ve seen it a hundred times on promos for the evening news; a hungry, local reporter who has dubbed himself a “fraud buster” or claims to be “on your side,” pushing his way through the doors of some unsuspecting local business, firing off questions all to the complete surprise of the business owner or salesman.

Every time I see this, I cringe. While there are people out there who take advantage of consumers, the vast majority of these stories are based on facts gathered from one side only and are aired, not to seek the truth, but to get ratings.

The truth is, these reporters don’t care about the truth; they don’t care about the facts; and they don’t care about your business. All they care about are ratings and how to get to that next network job in the bigger market.

You will have unhappy customers and some of them will be tempted to go to the media. Therefore, you, and your employees, must be prepared to handle the invasion. Read these rules and use them to establish your own Media Preparedness Plan.

Remember while reading this article and formulating your plan, there are two phases you will be preparing for: 1) dealing with the media and the immediate public relations impact a story might have; and, 2) preparing for and protecting yourself from any lawsuit that might result.

Rule 1: Be Prepared

Have your Media Preparedness Plan ready. Do not wait until you get that call or someone comes knocking on your door. You need to know in advance what you and your organization are going to do. You never know when this could happen. Read these rules, make your Media Preparedness Plan and make sure that everyone in your organization knows what they are to do.

Rule 2: Have One Spokesperson

Make sure that everyone in your organization knows who the one person is speaking on behalf of your organization. Make sure this person is prepared and knows the plan inside and out. This is an essential element. You don’t want multiple people sending out multiple messages. This would be a ripe opportunity for a reporter to use even slightly inconsistent comments to his or her advantage.

Rule 3: Don’t Be an Ostrich

If you are contacted by the media, it is okay to take a message and tell them you will call them back, but make sure you ask what their deadline is. If you are going to make a statement, you want to make sure you get it to them in a timely manner.

Rule 4: Nothing is Off the Record!

No matter what they say, you must assume that nothing is off the record. Their job is to get quotes and get stories. If there is something that you think is important enough to be off the record; it’s important enough to keep to yourself!

Rule 5: Call Your Counsel!

If you have an attorney who is experienced in handling these kinds of cases it is advisable to give them a call. Their experience and objectivity can be enormously beneficial in emotionally charged situations such as these. Remember, if the media comes calling, you not only have to deal with them, but the allegations they will be heaving at you, most likely about how you or your staff acted unprofessionally. These are never easy allegations to hear and having an objective counsel to help you navigate this mind field can be incredibly helpful.

Additionally, there are protections that can be afforded from privileges that attach to the attorney-client relationship and attorney work-product that can be extremely beneficial should your current situation turn into a lawsuit someday.

Rule 6: Anything You Say Can and Will Be Used Against You.

You will never hear as a lead in for the evening news: “Tonight, live at 5! Our exclusive story of how one local company did exactly what they were supposed to do and acted as a shining example of professionalism and a local family was just difficult and impossible to please.” The story is you messing up, and those are the facts that they are trying to gather. They will edit tape, twist words and flat out make things up to get the story they want. So just be aware that they will attempt to use anything you say to make their story the way they want it.

Rule 7: Prepare a Statement, No Live Interviews.

It is easy to read this rule and follow its recommendation to prepare a statement and not provide live interviews. However, the tricky part is the statement itself.

There is no single right answer on what to say. Every case and every circumstance is different. When in doubt, default to Rule 5!

The spectrum of what you could say runs from: “Out of respect for the family, we are unable to make any comment at this time” (this gives you an out where you can appear considerate and having discretion), to a full disclosure and explanation of the facts and circumstances.

I tend to be more conservative and recommend that more is less. However, there are circumstances where a brief statement highlighted by a few key facts can be beneficial.

You need to carefully consider what you are going to say, do your best to make sure it can’t be twisted against you and make sure it won’t compromise you should the matter turn into litigation. Also, remember that at the time you prepare the statement, you may not have all the facts and making a statement that is factually incorrect, even if done so with all intent to be honest, can be devastating.

A few other pointers to remember: never attack the family; it will always make you look bad. Remember, a situation where a company did right and the family was the bad actors will never make a story. And just never simply say, “No comment.” It looks as if you really are trying to hide something.

Rule 8: It’s Okay to Say “No, thank you.”

There are certain areas you need to be firm on. Do not let them film on your premises. You do not want to put the other families you serve and your employees in the line of fire. Tell them they are more than free to take any video they need from public areas such as sidewalks or roads. You can also ask them to refrain from taping any other families or services or names on markers out of respect for them. Most of the time, they will abide by this.

Do not let them snoop around or talk to other employees or families. You can restrict this by limiting access.

Do not allow them access to your files or records.

Rule 9: Be Ready for Other Families You Serve to Come Calling

Whether you are a funeral home, a cemetery or a crematory, if your business is on the news, you will have the families you have served in the past calling and stopping in inquiring about whether whatever was on the local news happened to them too.

Like it or not, the presumption will be made; because it happened once, it will happen again, or already has. So while you cannot talk to other families about the family or circumstances involved in the news report, you can take the opportunity to strengthen your relationship with the family that has called or come in to inquire.

I recommend to my clients a response like:

I’m sorry, but out of respect for the privacy of that family, I can’t discuss the services we have provided them. (See how I avoided saying “incident” or “situation”) But I would be more than happy to address any of the questions or concerns you have about the services we have provided to your family.

This is an opportunity to educate and further develop the relationship you have with that family. Often times after these meetings, the families are more comfortable with their decision to come to your facility, because they know you have nothing to hide about how you handled their loved one and are willing to take the time to sit down and discuss it with them. This, in turn, can lead to a continuing relationship with that family and can also help your public image, as often those family members will go into the community and share their experience with your facility.

Rule 10: Be Patient, This Too Shall Pass

It is just an unfair fact that the media has the power and there is very little you can do once they decide to go with a particular angle on a story. You just need to be patient, stick to your plan and do the best you can to address the concerns of the other families that come to you.

I have seen these types of stories many times and almost every time, as long as it is handled correctly, my clients end up feeling that, in the end, there wasn’t as much impact on their business as they feared. FBA

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Chris Farmer is General Counsel for the Cremation Association of North America and Of Counsel at Sheehy, Ware and Pappas where he is a member of the firm’s Death Care Law, labor and employment, commercial litigation, and general litigation sections. He was formerly Corporate Litigation Counsel for Service Corporation International where he handled its litigation internationally.

Indemnification Agreements: What They Are and Why You Need Them

2010-04-08T12:40:00.001-05:00

Solution On: Management

Imagine you are the knowledgeable, conscientious and hard working owner/operator of a small but successful funeral home and cemetery in a small town in America (probably not a stretch for many of you). You do your work on a daily basis taking care of the families in your town. You have several other companies that you work with including a lawn company to maintain the cemetery grounds, a third-party crematory to perform your cremations because the town has not approved the construction of your crematory yet and a third-party removal company to do removals when you are backed-up or picked up from outside your area.

You have been doing business with all of these companies for years and you are close with several of their owners so you don’t bother with the formalities of a contract. You assume that everyone you work with is just as knowledgeable, conscientious and hard working as you are. But what happens if one day they are not, and something happens where you and they end up getting sued. You know you did your job right, so you should just be let out of the suit, right? It’s not that simple.

When filing a lawsuit, plaintiffs’ attorneys don’t care who is really responsible. All they care about is who can pay them. Typically, they apply the “spaghetti approach” to filing lawsuits; they just throw everything against the wall and see what sticks. This means that they sue every single entity they can find that was related to the transaction. In our industry, that could be the funeral home, the cemetery, the crematory, the removal company, the casket manufacturer, the vault manufacturer, the maintenance company, the escort company, the owners or operators individually or anyone else they can stand up in front of a judge with a straight face and claim they should be in the lawsuit.

So the question is, how can I best protect myself and my business from the possibility of being sued for someone else’s mistakes (or even their bad luck in getting sued)? That’s where indemnification agreements come in.

Indemnification Agreements

To indemnify is to secure against loss. An indemnification agreement is essentially an agreement between two parties where each party agrees to be responsible for their own actions and to defend and secure the other party should that other party be sued for what that party did wrong.

For example; remember that small but successful funeral home and cemetery in a small town in America you are the owner/operator of? Let’s call your location Peaceful Palms Cemetery, and you have been in operation for 45 years. You have an excellent reputation and have a knowledgeable and experienced staff. As we mentioned, you do not have a crematory of your own, so you have Bob’s Crematory and Removal Company down the road perform cremations for you. Bob picks up the remains from your location and transports them to his crematory where he cremates the remains and delivers them back to your location. He also does removals for you when they need to be transferred out of your area. You have never had a problem with this arrangement and since Bob is an old friend of yours, you never bothered with a written contract.

One day however, Bob has a bad day. Bob’s driver comes to the location and as he is backing up the unmarked van to the garage, he hits one of your family’s cars. None of your employees saw it, but the family member whose car was hit did see it happen. They were late to the service, so they went ahead inside.

Bob’s driver then came in to the location and picked up two sets of remains: Mrs. Johnson, a 70 year old woman, who was to be transferred to Metropolis Cemetery for interment and Mr. Wilson, a 23 year old man, who was to be cremated and returned to your location for delivery to the family. Unfortunately, because Bob’s driver was a bit flustered from the run-in with the owner of the car he just plowed into, he delivered Mrs. Johnson to the crematory and drove Mr. Wilson to Metropolis Cemetery. Mr. Wilson was interred and Mrs. Johnson was cremated and the cremated remains returned to your location and delivered to Mr. Wilson’s family.

All was quiet until six months later when Mrs. Johnson’s family decided to disinter her to move to a family plot they purchased and discovered the remains they disinterred was not Mrs. Johnson. Coincidentally, the same day, the family member whose car was hit decided he needed to get his car fixed, so he called his local plaintiffs’ attorney. A week after the problem was discovered, you walk into your office and find three process servers standing on your doorstep with three lawsuits for you.

You and your employees did everything properly, but that doesn’t matter to the families or the Plaintiff’s attorneys who are out for blood (and money). Mrs. Johnson and Mr. Wilson’s families have never heard of Bob or his crematory and all they know is they contracted with and relied on you to service them and take care of the remains of their loved ones. Similarly, the family member’s car that was hit was on your property when it happened.

Ultimately, it is possible you could be found not liable for any of the actions, but you will at least have to spend tens of thousands of dollars for your attorneys’ fees, just to defend yourself.

So, how could you have best reduced your exposure, whether it is for a judgment or the attorneys’ fees you will have to expend to defend yourself? One step toward reducing your exposure is to secure a written contract including an indemnification agreement with all of the third-party companies you do business with.

Quite simply, the contract needs to do two essential things:

1. Spell out the duties and responsibilities of each party so there is no confusion;

2. Contain an indemnification agreement that provides that each party is responsible for their own actions and that if one of the parties be sued for the actions of the other, the other party will agree to provide a defense for and indemnify, or pay, any judgment that is rendered against them.

In our example above, if Peaceful Palms would have had an indemnification agreement with Bob’s Crematory and Removal Company, covering Bob’s employees actions on Peaceful Palms’ property and for Bob’s fulfillment of his removal and cremation duties, Peaceful Palms would have been able to look to Bob’s business to pay its attorneys’ fees and any judgment that was rendered against it for Bob’s actions.

Conclusion

While there are still risks, obtaining an indemnification agreement goes a long way to reduce your exposure and I highly recommend you secure one from all companies you do business with. Don’t be hesitant to go to those companies you work with and ask for a written agreement including an indemnification agreement. All that you are asking for is the person or company to be responsible for their actions. If you are doing business with a company that is not willing to take responsibility for their own actions, you might want to question whether you should be doing business with that company at all.

Finally, as a caution, while indemnification agreements are helpful, it is not a silver bullet in preventing your company from being found liable in a lawsuit. Even if you know you did everything right, a jury could still find your company liable for something you might have done or should have done. In addition, there are some state statutes that may limit the ability to transfer liability, so it is best to check with an attorney to make sure your agreement covers all the bases it can.

This article was republished from Funeral Business Advisor, March/April 2010. http://www.funeralbusinessadvisor.com/?p=1247

5th Annual Funeral Service Business Forum

2010-03-11T11:33:00.001-06:00

Come hear me speak at the 5th Annual Funeral Service Business Forum in Las Vegas in November. http://www.katesboylston.com/bizforum/

Proposed Legislation Would Expand OSHA's Reach and Penalties

2009-06-19T12:30:00.004-05:00

Here at the "Death Care Law Blog" we are more than just your source for Death Care Law and industry information, we are your resource for all of the legal information you need to protect and grow your Death Care business.

H.R. 2067, the so-called Protecting American Workers Act, or "PAWA", was introduced in the U.S. House of Representatives in late April. Sen. Edward Kennedy has indicated he intends to introduce a similar measure in the Senate. This resolution is similar to a proposal that was introduced by now President Obama in 2007. Needless to say, he supports the bill.

The Occupational Safety and Health (“OSH”) Act was passed in 1970 and was intended to regulate employment conditions to protect employees’ occupational safety and health.

If PAWA is made into law it would constitute the biggest change to the OSH Act to date. The biggest element of PAWA, to those who already fall under its jurisdiction, is the proposed increase in penalties. PAWA proposes to extend criminal liability to "any responsible corporate officer" by including that officer under the definition of "employer".

If passed, PAWA would also give regulators the opportunity to levy fines of up to $250,000 for an individual or $500,000 for an organization who willfully violates the OSH Act in a manner that results in death or serious injury. These same penalties would be available for regulators to charge against employers who make false statements or reports to OSHA. This is a substantial increase from the current $10,000 criminal fine currently available to regulators.

PAWA also proposes to increase the applicable prison time for those who commit certain OSH Act violations by increasing those violations from misdemeanors to felonies. For example, an individual who commits a willful violation that results in a death currently would be subject to a potential prison term of 6 months for a first time offender and up to 1 year for repeat offender. PAWA would increase the potential sentence to a 10 year sentence for a first time offender and up to 20 years for a repeat offender.

PAWA would also increase the OSH Act's applicability to government workers, airline workers and railroad employees, those groups who have historically been regulated by other federal agencies (Department of Defense, FAA, etc.).

If you have any questions about the applicability of OSH Act, PAWA or any other regulations on your business, please contact me at cfarmer@sheehyware.com .

State blamed for pre-need funeral fund losses - Springfield, IL - The State Journal-Register

2009-06-16T14:19:00.004-05:00

State blamed for pre-need funeral fund losses - Springfield, IL - The State Journal-Register

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Follow me on Twitter! (DeathCareLawGuy)

2009-06-16T09:41:00.005-05:00

Ok, yes, it is probably an overrated, self-indulgent fad that no one will remember or use a year from now, BUT it IS a good tool for staying connected to clients and those people who actually want to hear what you have to say.

I will use the outlet to notify those interested in the Death Care industry of legal issues, news items, articles I have published and lectures I will be giving.

Come on in and join the fun!!

DeathCareLawGuy

If you know of any Death Care related Twitterers I should be following please email me at cfarmer@sheehyware.com.

This day in history...

2009-06-15T09:54:00.001-05:00

June 15, 1864, Secretary of War Edwin M. Stanton signed an order establishing a military burial ground, which became Arlington National Cemetery.

TFDA Annual Convention

2009-06-08T15:31:00.004-05:00

This morning I spoke at the Texas Funeral Director's Annual Convention in Austin. Its a good group of folks who really have the best interests of the industry and the families they serve in mind.

I gave a little talk on wage and hour law that seemed to be well received.

We discussed the benefits of a wage and hour audit, including the ability to use an opinion of compliance with wage and hour law from a law firm as a "safe harbor" should the DoL come calling.

If you would like to know more about Death Care law, the TFDA, wage and hour law, or the safe harbor provision, please contact me at cfarmer@sheehyware.com.

CANA Crematory Operators Certification Program

2009-06-05T08:48:00.004-05:00

I am attending the Cremation Association of North America's (CANA) Crematory Operator's Certification Program at the Dallas Institute of Funeral Service in Dallas today. CANA will put on this program three times this year. They have already presented the program in Indiana and will present it again in September in Newton, Massachusetts.

This program was designed, along with Mathews Cremation Division, to meet the education and certification requirements more increasingly instituted by states and provinces.

You can find more information on CANA's Crematory Operator's Certification Program at http://www.cremationassociation.org.