Congressional hearing survival tips

It’s a prospect that can make the steeliest CEO sweat — the raised hand, the oath, the bank of flashing cameras, the lawmakers who want their five minutes on the nightly news.

Even if a witness before a congressional hearing doesn’t endure five hours of questions, as Edward Liddy of American International Group (AIG) sat through last week, facing a hostile panel is never fun.

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A wrong answer could add to a witness’s legal jeopardy. A shifty response can send stock prices tumbling. A poor performance can ruin reputations — as slugger and accused steroid user Mark McGwire can attest.

But there are also opportunities. A strong witness can defuse a budding scandal and dissipate public anger — and perhaps even provide justification for one of those executive bonuses talked about in the news. A CEO who has been battered by the press could be given hours to explain his or her side of the story.

In the courtroom, defendants have attorneys to help them prepare and sit by their side. Congressional hearing witnesses have lobbyists, who sit off camera and work members behind the scenes. Several specialize in the practice, combining legal expertise with political experience.

Lobbyists say each hearing is different, but in conversations with several of them, a set of rules of the road emerged — a survival guide of sorts for the congressional inquest.

Be better prepared than a Boy Scout

Nick Allard, the co-chairman for public policy at Patton Boggs, calls being prepared the “No. 1 Golden Rule.”

“You can’t prepare enough,” he says.

Preparation involves feeling out lawmakers and staff to get some sense of the questions that will be asked, as well as walking clients through their answers.

“If your lawyer/lobbyist has not prepared you for the questions, then you need a new one,” Allard said.
Jack Quinn, of Quinn Gillespie & Associates LLC, said he tries to “make sure we’ve touched base with all of the members who might be there and see where they’re coming from.”

Patton Boggs even occasionally tries to prepare for the atmospherics. The firm has taken clients to TV studios to make them more comfortable talking in front of cameras and being on television, and to get a feel for the scrum the witness may face at a hearing.

Allard did not say whether that involved dressing legal interns in pink to mimic the Code Pink protesters who sometimes show up. 

 
It’s not a courtroom

If there is a Golden Rule, there is also a deadly sin, according to Mitch Berger, who, as co-chairman of Patton Boggs’s litigation department, often teams with Allard in prepping clients. The sin: thinking a congressional hearing is the same as a legal proceeding.

“It’s not,” Berger says. “It’s a political proceeding.”

Adds Quinn: “This is made-for-TV drama.”

Huddled conversations with your counsels may seem natural in court, but don’t play well at a hearing, which may be televised.

And because the congressional hearing isn’t simply a fact-finding mission but also political theater, witnesses may have to endure the occasional lecture.

On the plus side: Questioners rarely have time to ask penetrating follow-ups. And a hostile question from a member of one party could be followed by a softball from a member of the other party.

“The witness needs to be ready to jump on that and hit it out of the park,” Berger said.

“For companies and individuals, there are risks attendant and goals to be achieved,” said Steven Ross, a former general counsel to the House of Representatives who now heads the congressional investigation practice at Akin Gump Strauss Hauer & Feld.


Think twice before saying sorry

In a misguided attempt to appear sympathetic, a witness may be tempted to say, “I’m sorry.” That can be a mistake.

“That’s just the beginning of the pounding,” Berger said.

Lawmakers tend to jump on apologies as admissions of guilt. So does the press, which leads to negative headlines for the company.

But if a CEO is set to apologize, he or she shouldn’t make it a “pity apology,” of the sort: “If someone took offense, I’m sorry,” according to Gerry Sikorski, former Minnesota congressman and head of government relations at Holland & Knight.

“There has to be contrition, sincerity and change of an action.”

You are not in control

As a rule, CEOs are not shrinking violets. They are used to having their say and getting their way. But when they sit down to testify, they are suddenly on the other side of the table, answering questions, getting interrupted and literally being spoken down to from the dais.

“You’re in Congress. You’re in their arena. You’re in at their request or subpoena. You’re under their set of rules and their purposes and you need to remember that every minute and every second,” Sikorski said.

Added Ross of Akin Gump: “It can be hard to be in an environment in which you are not in control of the room.”

He counsels clients to be disciplined, respectful of the process and always aware of the goals they want to achieve at the hearing.

Said Quinn: “Though it is important that one is firm and clear in stating one’s views, it is important not to accuse or belittle or challenge the people who are questioning you.”

Expect the unexpected

No matter how well-prepared, a witness always has to face the “How many redheads in Sweden” question, Allard says: a question seemingly sent from Mars that may leave the witness stammering.

There are a lot of demands on lawmakers’ time and they may have little left over to prepare.

“It’s perfectly acceptable to say, ‘I don’t understand your question,’ ” Allard said.

It’s OK to say, ‘I don’t know’

A witness should never answer a question he or she cannot. In other words, do not pretend.

An otherwise-smart witness may try too hard. He may attempt to outsmart the lawmakers by figuring out where the questions are leading. Don’t.

“To try to figure out where someone is going on a particular line of question is just deadly,” Sikorski said. “Don’t try to figure it out. Just answer questions. And don’t answer a question you don’t know the answer to.”

That is particularly true for witnesses who may also one day appear in court, where their congressional testimony could come back to haunt them.

Dress well, but not too well

Looks can kill in the hearing room. Allard’s rule of thumb is not to wear ties that cost more than the committee chairman’s suit. But witnesses shouldn’t dress down for the occasion, either, in a misguided attempt to appeal to the masses. After all, several congressmen are known to wear pinstripes.

“Are you going to see Donald TrumpDonald John TrumpDems win from coast to coast Falwell after Gillespie loss: 'DC should annex' Northern Virginia Dems see gains in Virginia's House of Delegates MORE in a JoS. A. Bank sportcoat? It’s not going to work,” said Sikorksi.

“I tell them to wear something that they’re comfortable in,” Sikorski said. “You want to minimize the appearance issues that create obstacles between you and your message.”

Said Akin Gump’s Ross: “Ultimately, it comes down to what you are saying, rather than whether you are wearing an earth-toned suit.”