By Ray Brescia and Eric K. Stern
Let us open with a very simple question. Does traditional legal education and training in law school and through common career paths prepare lawyers well for the rigors of lawyering in crisis situations? Despite some notable exceptions, the research and practical experience reported in our book Crisis Lawyering: Effective Legal Advocacy in Emergency Situations, discussed throughout this issue of The Practice, suggests that while lawyers are often well prepared to support clients experiencing crises, they tend to be far less well equipped to deal with situations where the ways in which they or their firms or organizations function are directly impacted by that crisis. In other words, novel challenges make it difficult for a lawyer to fall back on time-tested and well-worn tactics. In a profession that relies heavily on precedent in much of what it does, a lawyer facing an unprecedented situation may be beyond her comfort zone, and the road less traveled may be the only way forward.
While lawyers are often well prepared to support clients experiencing crises, they tend to be far less well equipped to deal with situations where the ways in which they or their firms or organizations function are directly impacted by that crisis.
Yet there are many examples from the practice of law where lawyers have faced such crises, and from these examples a methodology for addressing crisis situations emerges. We have captured many of these examples in Crisis Lawyering. Through first-person accounts of how lawyers navigated unprecedented situations—whether it was representing detainees held in what was claimed to be a lawless space in the detention facility on Guantánamo Bay, Cuba; a community and legal system inundated by a hurricane, as in post-Katrina New Orleans; or U.S. Department of Justice lawyers addressing police violence in Ferguson or responding to complex operational threats on the high seas—this edited volume offers critical insights into not only what it means to practice law in a crisis situation but also how to lead clients and communities through that crisis with professionalism, skill, and care. What is more, the results of our collaborative, multi-disciplinary, multi-professional research demonstrate that practical knowledge and good practices of crisis management from cognate fields (including medicine, communications, management, public policy and administration, and military science, among others) can better equip lawyers to lead and support in crisis situations.
Given the high risks involved, difficult-to-assess facts, novel challenges, and a rapidly evolving legal landscape in crisis situations, the Crisis Lawyer must remember to keep the following in mind:
- Be Flexible: Maintain a willingness and ability to participate in interdisciplinary and multi-professional teams.
- Creativity Is Critical: In novel situations, it may be difficult to rely on arguments, approaches, and tactics that they have utilized in other settings.
- Manage Risk (Because You Can’t Always Eliminate It): It may not be possible to completely avoid or eliminate different kinds of risk (reputational, humanitarian, financial, political), so, do your best to minimize and contain it, and help your clients choose between different risks they’re willing to run.
- Work Quickly: Crisis Lawyers are often forced to deliver “quick and dirty” legal advice, which is often better than allowing highly consequential decisions to be taken without benefit of counsel.
- Know Where Your Ethical Red Line Is: there might be times when a Crisis Lawyer must pull the “emergency brake” when core values are threatened. Know what those values are and where your red line is before crises hit.
- Embrace an Ethic of Care: in highly stressful situations, do not lose sight of your own well-being and that of your team, your clients, and your community.
- Build Trust: engage with your team members and other stakeholders in formal and informal ways, and outside of crisis situations, in order to promote good will, facilitate proactive issue spotting, build personal and professional empathy, and promote compliance with the legal guidance.
- Be Thoughtful About How and When You Communicate Difficult Information: choose venues and formats (one-on-one or group settings, oral or written communication) carefully and adapt to the stress levels and cognitive styles of leaders/clients (big picture/detail oriented, “readers” and visual learners etc.) for maximum impact.
- Partner with Crisis Communicators: the lawyer’s instinct to “say as little as possible” is not necessarily the right strategy in every situation.
- Plan for Crises: try to predict the types of crises you might face in your practice, identify values and principles that should guide crisis actions, and plan for “business continuity” and resilient lines of communication.
In a less turbulent era than ours, we might expect many readers to dismiss the observations found in Crisis Lawyering as of marginal relevance. In bygone days, a common reaction to the notion that lawyers might have to prepare to face crisis situations might well have been to argue that such situations are rare occurrences, and should a lawyer find herself in one, she can simply improvise when the time comes—if it ever does. However, we are living in all-too-interesting times, and the legal profession has not been spared its time in the “hot seat.” Lawyers—like everyone else—are still very much in the throes of the disruption caused by COVID-19 and the pervasive public health and safety countermeasures that have shaken the U.S. and other countries around the world to the core. The cascading effects of the pandemic have left no area of life untouched and have had disparate impacts on vulnerable populations in dire need of assistance. Furthermore, the U.S. has experienced a contested 2020 election and a violent threat to the peaceful transfer of power—which has, historically, been the hallmark of not just democratic practices but also the rule of law. Cyberattacks and the failure of other critical infrastructures have become commonplace. The increased frequency and severity of “natural” disasters linked to climate change (hurricanes, tornadoes, wildfires, flooding, etc.) are now woven into the fabric of life in the 21st century. Clearly, the times we live in are not only “interesting” but highly crisis-prone. These crises all present somewhat different challenges for the professionals and communities who must address them, and sometimes those professionals come from different disciplines, like public health, engineering, or cybersecurity. In light of the need for effective crisis response, in recent decades the interdisciplinary field of Crisis Management and Communication (CMC) has emerged to garner some of the best thinking across a range of different fields, mostly focusing on leadership in crisis situations, no matter the nature of the crisis.
The modern sociological study of natural disasters dates back at least to Samuel Henry Prince’s seminal work on the 1917 Halifax explosion, Catastrophe and Social Change, and includes post–World War II political science/political psychological work on cold war foreign policy (e.g., Korea, Berlin, Cuba, and the Middle East in 1973) and other Great Power crises (e.g., July 1914); post-1970s oil crisis work on domestic and international “all hazards crisis management”; post–Three Mile Island work on risk and crisis communication; post–September 11 work on “homeland security” and “consequence management”; behavioral and political economic work on economic crisis and financial turbulence following the financial crises of the 1990s and 2008; management science work on corporate crisis management; public health work on epidemics such as SARS, H1N1, Ebola, and COVID; and the growing body of work on cybersecurity and crisis leadership generally.
Crisis Lawyering: Effective Legal Advocacy in Emergency Situations (NYU Press, 2021)
In an increasingly globalized world, a complex and interlocking web of nations, governments, non-state actors, laws, and rules affect human behavior. When crisis hits―whether that be extrajudicial detention, unprompted deportation, pandemics, or natural disasters―lawyers are increasingly among the first responders, equipped with the knowledge necessary to navigate the regulations of this ever more complex world.
Crisis Lawyering explores this phenomenon and attempts to identify and define what it means to engage in the practice of law in crisis situations. In so doing, it hopes to sketch out the contours of the emerging field of crisis lawyering. Contributors to this volume explore cases surrounding domestic violence; dealing with immigrants in detention and banned from travel; policing in Ferguson, Missouri; the kidnapping of journalists; and climate change, among other crises. Their analysis not only serves as guidance to lawyers in such situations, but also helps others who deal with crises understand those crises―and the role of lawyers in them―better so that they may respond to them more effectively, efficiently, collaboratively and creatively.
Crisis Lawyering shines a light on the emerging field of law dedicated to responding to and resolving the complex crises of the twenty-first century. Learn more about the book here.
One picture that emerges from this study of crisis situations, from natural disasters to public health crises, is that in the crisis-response room, the cast of characters and the expertise needed may change from crisis to crisis. The discipline of CMC seeks to develop a range of effective responses to crisis situations regardless of the type of professional who is charged with responding to them. At the same time, one professional is increasingly near or close to the heart of the well-balanced crisis-response team: the lawyer. (And when lawyers are not included in the acute crisis response, they are all too likely to be needed afterwards to clean up costly legal messes created by ill-advised action or inaction.) While crises are becoming more common, widespread, and devastating—and crisis management itself has emerged as an interdisciplinary field of study—in the legal field, little work has been done to explore a distinct area of practice known as crisis lawyering in systemic and rigorous ways. Our work tries to change that, not because we believe that crisis response is a type of practice a subset of lawyers needs to know, but, rather, because we believe every lawyer will face situations in which the tools and tactics of crisis lawyering are useful to her and the clients she serves. Indeed, we are still in the midst of a pandemic that has impacted every aspect of life across the world, and the practice of law has not been spared its ravages. As crises emerge with greater frequency and intensity, it is without question that every lawyer currently practicing and those who will in the future need to understand how to function effectively in emergency situations. Crisis Lawyering is an attempt to harness some of the best thinking on this mode of practice and offer guidance to lawyers and those who might work with lawyers in crisis situations on how to navigate through them effectively, thoughtfully, ethically, and creatively, all in the service of clients and the community.
While a lawyer cannot prepare for every crisis, there are things that she can do to prepare for situations in which she must operate in crisis mode.
From the viewpoint of the non-lawyer, it may seem that lawyers are always dealing with crises. Indeed, clients often turn to lawyers when they are in crisis. They are facing a threat to the success of their business by a competitor. They face the prospect of criminal charges and possible jail time. They face the loss of their home because they have fallen behind on their mortgage. The inheritance they thought was forthcoming is being challenged by a relative. A client on death row faces execution. All of these situations are, without question, a crisis for the client, and she seeks out a lawyer to help navigate through such crises.
But a critical characteristic of many client crises is that, for the lawyer, they may not be crises at all. Indeed, most client crises are not lawyer crises. For the lawyer, the type of situation the client finds herself in is precisely the type of situation the lawyer is well prepared to handle. She may have gone to law school for the sole reason of helping clients navigate through just this type of personal crisis. She has steered clients through these types of crises before (or can consult colleagues who have), knows the law, can easily discern the relevant facts, and can proceed with the appropriate legal tactics to help solve the client crisis.
But sometimes the crisis the client faces is also a crisis for the lawyer. Such crises occur when the situation is novel; the facts on the ground are difficult to discern; the law is unsettled or unclear; there are very real threats to client, community, workplace, or lawyer safety; there is extreme time pressure in which the lawyer must respond; or the ability to communicate with the client is impaired. Such situations certainly create a crisis for the client, but they also create a crisis for the lawyer, and she is unable to fall back on established approaches, past experiences, and prior training when preparing an appropriate response to the crisis. What is more, what she must do in response to the crisis is not always apparent, and her action or inaction can have real consequences, not just for her client but also for the community. While a lawyer cannot prepare for or anticipate every potential crisis she will face over the course of her career, we believe there are things that she can do to prepare for situations in which she must operate in crisis mode, as well as things she can do in the midst of the crisis to help chart a course through such crises with diligence and skill.
Crisis management is not just a reactive practice but one in which the actors within the crisis have a great degree of agency and have a role in shaping not just the response to the crisis but the crisis itself.
While the frequency and intensity of crises have only increased in recent years—and the rapidly developing field of Crisis Management and Communication (CMC) has emerged in which scholars and practitioners from different disciplines and professions have offered insights into effective crisis response in many settings—in the legal field, appreciation for and systematic, usable knowledge regarding the challenges lawyers face in crisis situations has not necessarily grown apace (for more on crisis communications specifically, see “Communicating Clearly.”) Indeed, CMC serves as a touchstone for the study and management of crisis response, striving to enable governments, businesses, and communities to respond more effectively and legitimately to crises. Drawing from the literature on crisis leadership, decades of intensive empirical research on crisis management shows that leaders face recurring challenges when confronted with (the prospect of) community (or organizational/national/international) crises. One central work in the field, The Politics of Crisis Management by Boin, et al. (Cambridge, 2017), proposes that the core tasks of crisis management are: preparing, sense-making, decision-making, meaning-making, terminating, accounting, and learning. A consideration of these tasks reveals that crisis management is not just a reactive practice but one in which the actors within the crisis have a great degree of agency and have a role in shaping not just the response to the crisis but the crisis itself: identifying it, framing the understanding of as well as the appropriate response to it, managing it, and learning from it after the emergency has passed. What we hope to have accomplished in gathering the accounts of effective crisis lawyering is not just an understanding of how lawyers have responded to crises but also how they can take an active role in preparing for, shaping, and learning from such crises to offer guidance to lawyers and leaders as to the effective place of lawyers in crafting appropriate responses to crises.
Despite the paucity of analysis of the role of lawyers in emergency situations, an appreciation for the critical role that lawyers play in crisis settings is necessary. In emergency situations, the law is often a brooding omnipresence, to borrow a famous phrase from the late Oliver Wendell Holmes. Indeed, a vast patchwork of laws and regulations often enables, and at the same time can constrain, those who engage in crisis response. Even the most gifted, talented, experienced, and creative crisis response manager can sometimes feel restricted in her decision-making by not just the legal and regulatory framework in which she must operate but also the lawyers themselves, who are supposed to help her navigate through the crisis. Because of the outsized role that the law often plays in crisis situations, lawyers too must play a significant role in helping leaders find their way through those crises—and around and through the laws, regulations, and ethical considerations (in the broad “greater good” sense of the term rather than simply questions of professional probity and propriety, though those too can arise) that can frame effective and legitimate crisis response.
In the work culminating in the Crisis Lawyering volume, we sought to create an understanding of this emerging field of practice. While we do consider it an emerging field, the truth is that this mode of practice has been with the legal community probably for as long as there has been a legal profession. What we do in the work though is attempt to capture the experiences of lawyers who have themselves navigated through crises, experiences they recount in their own words. We believe that from these stories a picture of effective crisis lawyering emerges, and its features have certain common contours despite the widely divergent situations in which these crisis lawyers have found themselves and their clients. Whether it was the lawyers challenging the Trump Administration’s travel ban described in the accompanying feature in this issue or lawyers striving to address climate change, responding to alleged election day irregularities, combatting the crisis of affordable housing, or facilitating interagency cooperation regarding international incidents at sea, each chapter in the volume provides a rare peek into what it means to serve as a lawyer in crisis situations. From the insights these lawyers share, we believe a vivid picture of crisis lawyering emerges.
Lawyers operating in crisis situations often engage in a high-wire act and, to carry the metaphor, are often doing so without a net. A single errant step or decision could literally end up in tragedy.
While lawyers always need significant technical legal capacities, training, expertise, and, above all, excellent professional judgment, in crisis settings they need all of these qualities and more. In emergencies, lawyers also must: possess leadership skills; be able to communicate effectively to clients, allies, adversaries, courts, and the public; coordinate and be coordinated by legal and nonlegal professionals; negotiate with diverse parties with typically diverging interests; address acute humanitarian emergencies and personal exigencies; and learn to manage themselves and others through dangerous and sometimes life-threatening situations.
Crisis lawyering requires a lucid situational awareness; a problem-solving orientation; a critical knowledge base of the legal and practical ramifications of the client’s conduct and options for future decision-making; an appreciation for the real and potential risks inherent in the situation; clear lines of communication within both an organization and the broader community that enable the free flow of information and tactical direction; a willingness to enlist guidance from disciplines outside the law; and the humility to take into account the perspectives and expertise of those other disciplines. While an argument could be made that these are all features of lawyering generally, in crisis settings—lawyer-crisis settings, that is—all of this gets considerably harder because the facts on the ground are difficult to comprehend; the law is unsettled; much is at stake; the lawyer’s ability to communicate with clients, adversaries, colleagues, other professionals, and the courts may be compromised; and she must act on a highly accelerated timeline. Crisis lawyering is a product of the nature of the situation the lawyer finds herself in, given the stakes, the risks, the time pressures, and the consequences of action and inaction. And that is why crisis lawyering is different.
For example, Crisis Lawyering contributor David McCraw negotiates for the release of kidnapped journalists with surprising regularity in his work as deputy general counsel of the New York Times. Such situations require balancing transparency and discretion, ethical, legal, and cost considerations, potentially conflicting obligations to the organization, the kidnapped journalist and family members, other professionals who could be targeted in the future, and to the letter and intent of the law. Like McCraw, lawyers operating in crisis situations often engage in a high-wire act and, to carry the metaphor, are often doing so without a net. A single errant step or decision could literally end up in tragedy. For these reasons, crisis lawyering does require—if not a unique set of skills—that the lawyer must also be at the top of her game, and she may need to perform beyond her personal best to achieve a just and effective outcome for her client.
When problems are urgent and novel, lawyers face a common dilemma: provide advice that is quick and, for lack of a better term, “dirty,” or find themselves on the sidelines, offering no advice at all.
Central to the notion of crisis lawyering, and what sets it apart from what lawyers tend to do in their practice day in and day out, is that the crisis lawyer typically confronts a novel situation, one in which the tactics and strategies she is used to deploying are of little service to her. For example, contributor Caroline Bettinger-López’s client faced a situation many lawyers face: the client appeared to be out of options. Her client faced the unimaginable tragedy of having her children murdered by her ex-husband despite having a court order that the police failed to enforce to protect them. Bettinger-López, who is professor of law and director of the Human Rights Clinic at the University of Miami School of Law, brought an action against the local police force seeking legal recourse for that failure. While only a tiny handful of cases are heard by the United States Supreme Court every year, Bettinger-López’s client managed to have her case resolved by the nation’s highest court, although the outcome there was unfavorable to the client. As most Americans probably believe, the Supreme Court is the last stop for any legal dispute. A loss there is probably the end of the road for the client. Not Bettinger-López’s though. After losing before the nation’s highest court, Bettinger-López and her client filed a claim before an international tribunal. Bettinger-López would ultimately secure victory there, with the international tribunal finding that the actions at the center of the lawsuit were a violation of international law. Similarly, Sarah Rogerson’s clients—immigrants in detention—also seemed to have few options; but those limited options meant Rogerson—who is director of The Justice Center at Albany Law School and its Immigration Law Clinic—and her colleagues had to throw out their traditional playbook and generate more creative solutions to address their clients’ needs. Similarly, Lee Wang and the other lawyers at the Immigrant Defense Project fighting to make courthouses safe spaces for their immigrant clients had to engage in acts of civil disobedience to ensure the courts remained open for those seeking justice. While lawyers mostly find their clients in situations the lawyers have seen before—and it is, of course, for this reason that clients often turn to their lawyers in such situations in the first place—the crisis lawyer does not have that luxury.
Drawing from the world of operational (e.g., military, police, and emergency management) law, where events and responses occur at a rapid pace, legal advice must keep up with events; otherwise, key actors will make crucial decisions anyway, without the benefit of legal guidance. When problems are urgent and novel, lawyers face a common dilemma: provide advice that is quick and, for lack of a better term, “dirty,” or find themselves on the sidelines, offering no advice at all. Sometimes this sidelining is unintentional because crisis decision-makers are moving quickly and do not have access to or even think to consult with their lawyers in the heat of the moment. At the same time, such marginalization of the lawyer can be intentional on the part of leaders, either because the lawyer is seen as offering only impediments to effective decision-making or because the leaders do not think they will like what the lawyer has to say. In such situations, there is reason to believe that lawyers (and those who evaluate them and hold them accountable) may need to reconsider what it means to provide effective and competent service in a crisis situation, taking into account the operational tempo, the working conditions under which the lawyer operates, the unsettled nature of the law governing the setting and actions within it, and the situational awareness she may or may not enjoy. In the medical field, there is an appreciation for the difficulty of producing quality advice, facilitating or making decisions, and maintaining typical professional procedural standards in crisis situations. In response, medicine has developed crisis standards of care, triage techniques, and wilderness medicine. In medicine, there is an appreciation for the fact that excellent professional performance may look very different at a mass casualty site or a remote field location as opposed to a planned procedure at a top-notch medical facility under normal conditions. While crisis lawyering is not always life-or-death, as is often the case in medical emergencies, sometimes it is, and lawyers must learn to rise to the challenge given those stakes.
In crisis situations, the importance of establishing and maintaining efficient and effective lines of communication to gather information and communicate guidance is cast in high relief.
Another way that crisis lawyering is different from traditional lawyering is that the high stakes involved in the former and the truncated time frame within which decisions must be made in emergency settings often require a degree of communication between the lawyer, constituents, leaders, third parties, and anyone who can help the lawyer gather information and respond to it effectively that is uncommon in traditional settings. Contributors John Travis Marshall, associate professor at Georgia State University College of Law, and David Turetsky, professor of practice at the University of Albany’s College of Emergency Preparedness, Homeland Security, and Cybersecurity (and former deputy assistant attorney general), who practice in very different settings, show how important functioning lines of communication are in crisis situations: across disciplines, with advocates, and between adversaries. Marshall helped to chart the course out of natural disasters in New Orleans and elsewhere; Turetsky has long represented voters, candidates, and his political party with regard to time-sensitive, high-stakes election issues. While the traditional lawyer certainly needs effective lines of communication with critical constituencies, in crisis situations—given the time frame under which the crisis unfolds, the risks involved, the unsettled nature of the law and the facts, and the reality that clients and critical constituents may be difficult to reach in emergencies—the importance of establishing and maintaining efficient and effective lines of communication to gather information and communicate guidance is cast in high relief.
What is more, while lawyers in traditional settings may feel that their expertise is developed and imparted independently of professionals from other disciplines, in emergency settings that is rarely the case. Complex, multi-dimensional, multi-party, multi-national problem-solving of the kind described in the chapter by Brian Wilson, deputy director at the Global Maritime Operational Threat Response Coordination Center at the U.S. Coast Guard/U.S. Department of Homeland Security, and Nora Johnson, director of the Office of Incident Management at Transport Canada, on crises at sea requires lawyers to work under crisis or quasi-crisis conditions with a broad range of other actors, including experts on modern piracy, human trafficking, migration, maritime cyberattacks, outbreaks of infectious disease at sea, major narcotics or fisheries violations, and others. Lawyers dealing with these and other crises are often engaged in a time-sensitive effort involving not just interpreting the law but also deploying it with care as just one dimension of a multifaceted response to an emergency, which may involve interagency information-sharing, consensus building among disparate and possibly antagonistic and adversarial constituents, priority-setting among parties that do not often see the problem in the same way, and the division of responsibilities among entities and actors guarding their professional fiefdoms. Such issues affect FEMA lawyers who are tasked with working with a broad range of federal agency representatives under the National Incident Management framework, state government officials, and other societal actors involved in response and recovery efforts with regard to natural disasters, as noted in the chapter by Stern and Brad Kieserman, formerly chief counsel at FEMA, and their coauthors. Similarly, contributor Eleanor Stein, who teaches at Albany Law School, describes her efforts to address climate change, a “super-wicked” problem, as it is sometimes called, and one in which lawyers may find themselves out of their depth regarding climate science.
The crisis setting is rarely discrete or contained, stakeholder interests are often muddled, alliances can easily shift, and third parties are often caught up in and affected by the crisis.
What these examples tend to show is that in crisis settings, lawyers, used to working alone, and sometimes with professional blinders, must rely heavily on experts from other disciplines. Indeed, this is often a hallmark of crisis lawyering itself: the need to work and communicate with other professionals (communications professionals, engineers, medical doctors, scientists, public health officials, military officers, law enforcement, fire and rescue services, etc.) to appreciate the risks inherent in the crisis situation and to craft solutions to address and minimize those risks in an effective, interdisciplinary, and holistic way. In crisis situations, a solution informed solely by reference to the applicable law in a given situation tends to be one-dimensional and incomplete. Indeed, effective problem-solving in crisis situations generally requires a professional skill rarely associated with lawyers: professional humility. The crisis lawyer must exhibit the ability to recognize her limitations when it comes to not just understanding the crisis but also crafting the solutions that might emerge that could potentially respond to it. What is more, the crisis lawyer must also identify and develop a familiarity with, and even the vocabulary of, the disciplines that might aid in the work of resolving the crisis.
Crisis lawyering is also different from traditional lawyering because of the nature of the conflicts that can arise in emergency settings. Many legal settings are bipolar in the sense that there are typically two parties on opposite sides of a matter. Sometimes there are more, but party alignments and sides are usually fairly easy to discern. The crisis setting is rarely discrete or contained, stakeholder interests are often muddled, alliances can easily shift, and third parties are often caught up in and affected by the crisis. Of course, all lawyers owe a duty of loyalty to their clients. In crisis settings, this loyalty is no less important, but it can also be put to the test when the lawyer might feel the moral weight of decisions she must make in situations where there is a high risk of harm to the broader community from a client’s action or inaction. This can sometimes create conflicts between the crisis lawyer’s professional role and, quite simply, her humanity. In many legal settings, there is the risk of harm to adversaries and third parties, as when a prosecutor must decide whether to charge a defendant and what sentence to pursue upon conviction. In the crisis situation, given what is at stake and the potential consequences of client action or inaction in a given setting, the potential impact of the crisis lawyer’s decision on third parties is almost always significant, which is another of the hallmarks of crisis lawyering. Crisis situations can create an undertow of conflicted decision-making. The crisis lawyer will likely feel compelled to ask the client to consider and take into account the great dangers crisis situations pose to clients and third parties alike. While this will always be the case when client actions could impact third parties, in crisis settings these harms are high, the time frame in which to make decisions is limited, the true consequences of action or inaction are not always known, and the state of the law is uncertain. All of these factors raise the stakes—and the risks—associated with crisis decision-making, and they will likely increase the likelihood that the crisis lawyer will need to incorporate a sensitivity toward third-party harm into their efforts to a greater extent, and at greater potential consequence, than the traditional lawyer. In the end, these different stakes, which are in many ways a product of the key features of crisis lawyering, alter the conflicts equation for the crisis lawyer in ways the traditional lawyer rarely must face.
For the traditional lawyer, the approach to dealing with public communications or the press is often to say as little as possible and never admit mistakes.
Another characteristic of lawyering in crisis situations is that such crises, by their nature, are situations of high risk that must be resolved within an extremely accelerated time frame. Whether it has to do with the risk of third-party harm or simply involves the lawyer needing to understand the crisis itself so that she can attempt to provide competent service in light of it, crisis lawyers must develop situational awareness, assess the actual and potential risks to clients and third parties, make decisions with incomplete information, and make those decisions quickly. Because she is still a lawyer and has clients she serves in the midst of the crisis, the crisis lawyer must develop meaningful lines of communication with clients to understand their perspective and obtain guidance on the course of action the clients want to pursue. But what if such communication is not possible? Muneer Ahmad and Michael Wishnie, clinical faculty who co-run Yale Law School’s Worker and Immigrant Rights Advocacy Clinic, recount their efforts to represent their clients when they were held incommunicado in a facility at John F. Kennedy International Airport (for more on Ahmad and Wishnie’s pedagogy, see “Educating Crisis Lawyers.”) Similarly, Baher Azmy, legal director at the Center for Constitutional Rights, and others representing detainees on Guantánamo Bay had to commence litigation even to identify and speak with their clients. In crisis settings, where communication is so critical, it can also prove challenging, if not impossible.
In addition to ensuring that the crisis lawyer can communicate effectively with clients, as spelled out by Exec-Comm partner Jay Sullivan in his chapter, lawyers in many settings (government and corporate) will also need to work with communications professionals regarding internal and external messaging (for more on Sullivan’s approach, see “Communicating Clearly.”) The FEMA and Swedish Legal Advice in Crisis projects described in our book found that enhanced mutual understanding and close collaboration between lawyers and communicators is helpful in making sure that communication is not only legally correct and sustainable but also effective in reaching a variety of nonlawyer target groups as well as protecting the “brand” and legitimacy of the organization. As Sullivan points out, taking responsibility for organizational mistakes or negligence and doing what is required to maintain viability in the court of public and media opinion may require publicly assuming responsibility and maintaining degrees of transparency that likely increase legal (and possibly financial) exposure in court. For the traditional lawyer, the approach to dealing with public communications or the press is often to say as little as possible and never admit mistakes. The crisis lawyer may decide that the best course of action is to do exactly the opposite.
If crisis lawyering is a new field of practice, is there specific education and training that a lawyer can undertake to plan to work in this field? Several of the chapters in Crisis Lawyering focus specifically on this question, including those by Ahmad and Wishnie and Scott Westfahl, Harvard Law School Executive Education faculty director. These chapters help to identify some approaches that have proven effective when it comes to training law students and lawyers in crisis lawyering. For example, the Maritime Operational Threat Response functions described by Wilson and Johnson have benefited from regular “war games,” including sharing not only lessons learned from previous cases but also scenario exercises in which lawyers have the opportunity to work with other professionals to rehearse and practice interagency problem-solving skills relevant to crisis management. Such simulation-based training and tailored role play also proves vital for FEMA and the Swedish Legal Advice in Crisis project, shared by co-author of this piece and co-editor of the volume, Eric Stern (for more on the Swedish Legal Advice in Crisis project, see “Educating Crisis Lawyers.”) In both settings, in-service training and exercise methods largely developed for crisis preparedness writ large (as well as for other educational purposes) prove helpful for teaching crisis lawyering specifically. In such training scenarios, lawyers practice and develop crisis skills and empathy under simulated high-tempo and high-pressure conditions, as well as hone the ability to interact heedfully with teammates from other professions.
While there is no substitute for experience when handling crises, these chapters, as well as all of the first-person experiences described within the book, help to shed light on the field of crisis lawyering and offer a range of insights into best practices in the field. Lawyers who expect to find themselves in such situations—and we believe all lawyers should prepare to face them—can learn from these experiences and develop their own set of crisis-response protocols specific to their practice and the type of emergencies that can emerge within it. Even though every crisis has its unique features, crisis lawyering involves a set of practices and trans-substantive approaches to crisis situations that tend to be helpful across a broad range of situations. Because crises present extraordinary challenges to lawyers and it is critical to “get it right the first time” in complex, dynamic, high-stakes processes and events, it seems prudent to prepare lawyers for crisis situations through dedicated education, training, and exercises specifically designed to simulate the high stakes at play in such situations and the difficult decisions lawyers and leaders have to make within them. Such an approach to training and preparation is relatively underdeveloped in today’s legal community, and not just in the United States. We hope readers of Crisis Lawyering will find that the conversation we have started around the unique qualities and core competencies lawyers must possess when dealing with crisis situations helps illuminate the unique challenges lawyers face and the skills they must exhibit when dealing with such crises.
Whether it is dealing with hostage negotiations, climate change, critical incidents at sea or on land, police violence, pandemics, or human rights violations, lawyers are thrust into emergency situations that test their professional and personal identities and training.
Crisis lawyering—as the experiences collected in the Crisis Lawyering volume indicate—is really an approach, one that requires a particular mindset and set of skills more than a command of a particular body of substantive knowledge. Whether it is dealing with hostage negotiations, climate change, critical incidents at sea or on land, police violence, pandemics, or human rights violations, lawyers are, more and more, thrust into emergency situations that test their professional and personal identities and training. Sometimes they are asked to utilize their understanding of the law to provide crisis-response services; sometimes they are asked to bring law and the rule of law to situations of crisis; sometimes they must look outside the law to address such crises. Regardless, their legal training, experience, and ability to take a clear-eyed measure of a situation—assessing both immediate and long-term ramifications of action and inaction—can serve to provide effective ethical guardrails, useful leadership skills, and good judgment in crisis situations. However, it is also important to recognize that other lawyerly “virtues” and professional cultural traits such as risk aversion, rule following and enforcement, perfectionism, and the use of inaccessible professional jargon can create obstacles to crisis problem-solving and make lawyers unwelcome, marginalized, and isolated in crisis teams and organizations.
The accounts of effective crisis lawyering contained in the stories in this issue and those first-person accounts provided in Crisis Lawyering show that the crisis-lawyering approach is one that manifests itself in professional humility; a willingness and an ability to gather and assimilate information rapidly and in an open-minded way; a commitment to communication with clients, constituents, community leaders and representatives, and affected third parties; and, above all, an understanding of the lawyer’s role in crisis situations—both its capacities and its limitations. We believe the contributions to the Crisis Lawyering volume paint a vivid picture of what this crisis lawyering approach entails so that lawyers and the individuals, entities, and communities they serve will understand the critical role lawyers can and must play in addressing and resolving crises. In the wake of COVID-19, ongoing and pervasive threats to the rule of law, and the relentless onslaught of climate change, the need to cope with crises looms ever larger as a challenge and imperative for contemporary society in general and lawyers in particular. Lawyers have had and will continue to have a crucial part to play in this effort and must be prepared for action, effective in their service, courageous in defending values, comprehensive in their approach, and wise in their judgment—even when facing issues shrouded in the fog of crisis.
Ray Brescia is Hon. Harold R. Tyler Chair in Law and Technology and professor of law at Albany Law School.
Eric K. Stern is professor at the College of Emergency Preparedness, Homeland Security, and Cyber-Security at the University at Albany.