Lawyers as Problem-Solvers in Crisis

RAY BRESCIA AND ERIC K. STERN

In the earliest days of Donald Trump's presidency, his administration issued an executive order banning travel to the United States from several predomi­nantly Muslim countries.

Journalist Tom Friedman calls the current period in history the “Age of Ac­celerations.”¹ Crises today come in many shapes and sizes, but the frequency of crises and their intensity are only accelerating. Natural disasters, like hur­ricanes and tsunamis, seem to be occurring more frequently and their dev­astating power is increasing. Globalization and the internet have brought the world together, creating opportunities but also generating friction, fostering violence, and inviting cybersecurity breaches. The growing chasm between the wealthy and the poor, exacerbated by a global economy often perceived as increasingly skewed to benefit the rich, means tensions flare between the “haves” and the “have-nots,” leading to political protests, a growing populist nativism across the world, and a willingness to retreat into social enclaves that minimize opportunities for communities to come together to solve shared problems, which only makes them worse. Finally, whereas only a few years ago a business leader, elected official, or candidate for office might speak pri­vately to associates or even journalists with few ramifications, today, with the twenty-four-hour news cycle; a social-media environment that thrives on in­stantaneous, total access; and a mode of communication that enables those leaders and journalists to speak to millions with a tap on a cell phone, crises— some deliberately manufactured—can arise instantaneously and spread like wildfire.

While the frequency and intensity of crises have increased, the sophistica­tion of crisis response has not necessarily grown apace, despite the emergence in recent decades of an interdisciplinary field of crisis management and com­munication (CMC) striving to enable governments, businesses, and commu­nities to respond more effectively and legitimately to crises. At the same time, and to a certain extent, a vast patchwork of laws has emerged to provide those who engage in crisis response some degree of guidance for dealing with a cri­sis. Whether it is a multinational organization investigating a claim of sexual harassment against one of its leaders, or a rural town responding to a flash flood, a legal ecosystem for responding to crises has developed. Yet those who must respond to crises, and act within the legal constraints that bind them in such situations, need effective, useful, timely, and creative guidance in how to operate within (and sometimes test the bounds of) this legal ecosystem. Just as there is a growing field of crisis response generally, so too is there a need for guidance for how to operate within the legal ecosystem of crisis response, for both leaders and lawyers alike.

What follows in this volume of essays is an attempt to do just that: to create an understanding of the emerging field of crisis lawyering. It undertakes this task primarily through first-person accounts of lawyers dealing with crisis sit­uations, from the effort to address the travel ban described earlier, to the role that lawyers play in dealing with crises in private practice settings, serving as lawyers within the government, reacting to acute emergency situations like natural disasters, addressing long-term crises like climate change, and work­ing in public interest settings such as nonprofit legal services organizations. Each chapter in this collected volume provides a somewhat unique peek into what it means to serve as a lawyer in crisis situations, which requires signifi­cant technical legal capacities and professional judgment.

The nascent legal discipline of crisis lawyering has not received much sus­tained and focused attention to date but can learn from the multidisciplinary academic and applied fields of crisis management and communication men­tioned earlier.² While the diversity of the CMC field precludes a simple telling of its history, it can be said that 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 Changeⁱ 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);⁴ post-1970s oil crisis work on domestic and in­ternational “all hazards crisis management”;⁵ post Three Mile Island work on risk and crisis communication;⁶ post-September 11 work on “homeland se­curity” and “consequence management”;⁷ behavioral and political economic work on economic crisis and financial turbulence following the financial cri­ses of the 1990s and 2008;⁸ management science work on corporate crisis management;⁹ public health work on epidemics such as SARS, H1N1, Ebola, and COVID-19;¹⁰ as well as the growing body of work on cybersecurity and crisis leadership generally.¹¹

Note that much of this work has—in one way or another—been stimu­lated and driven by major historical events that tested the mettle of leaders (and their various formal and informal advisers—including, of course, their lawyers), as well as the effectiveness and legitimacy of public-, private-, and nonprofit-sector organizations, and posed substantial symbolic and material threats to citizens and elites alike.

Let us look more closely at the literature on crisis leadership, as much of this work is relevant to the parallel and interrelated challenge of crisis lawyer- ing.1³ Several 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. These are: preparing, sense-making, decision-making, meaning-making, terminating and accounting, and learning. These tasks are as germane to military leaders as they are to their civilian counterparts and are central not only to effective crisis leadership in a particular incident but also to creating better precon­ditions for future incidents and resilient adaptation to extreme conditions over the longer term. Hannah et al. suggest that different forms of leadership may be needed in different phases of a disaster or crisis?⁴ This conceptualiza­tion identifies crisis leadership tasks likely to arise across a variety of extreme events and contexts.

Preparing refers to the task of creating preconditions and dispositions that facilitate collaborative effort as well as effective and legitimate intervention when crises occur. Elements of preparing include activities such as organiz­ing, planning, training, and exercising. This generally entails attempting to identify key players and roles likely to be required for effective response and making sure that each role player is capable of enacting that role skillfully and in a fashion conducive to not only particularistic but also collective success.

Sense-making in crisis refers to the challenging task of developing an ad­equate interpretation of what are often complex, dynamic, and ambiguous situations.1⁵ This entails developing not only a picture of what is happening but also an understanding of the implications of the situation from one's own vantage point and that of other important stakeholders. As Alberts and Hayes put it: “Sense-making is much more than sharing information and identifying patterns. It goes beyond what is happening and what may happen to what can be done about it.”¹⁶

Decision-making refers to the fact that crises tend to be experienced by leaders (and those who follow them) as a series of “what do we do now” problems triggered by the flow of events. These “decision occasions” emerge simultaneously or in succession over the course of the crisis?⁷ Protecting communities tends to require an interdependent series of crucial decisions, to be taken in a timely fashion, under very difficult conditions.

Meaning-making refers to the fact that leaders—civilian and military alike—must attend not only to the operational challenges associated with a contingency but also to the ways in which various stakeholders and constitu­encies perceive and understand it. Because of the emotional charge associated with disruptive events, followers look to leaders to help them to understand the meaning of what has happened and place it within a broader perspective.

Terminating and accounting refers to the nontrivial task of finding the appropriate timing and means to end the crisis, manage accountability pro­cesses, and return to normalcy. Furthermore, attempting to end a crisis pre­maturely can endanger or alienate constituencies who may still be in harm's way, traumatized, or otherwise emotionally invested in the crisis. Crises may be particularly difficult to terminate if the operational challenges lead to a “crisis after the crisis” in which serious recriminations—resulting in losses of trust and legitimacy—are launched against those who failed to prevent, respond to, or recover effectively from a negative event.

Learning requires an active, critical process that re-creates, analyzes, and evaluates key processes, tactics, techniques, and procedures in order to en­hance performance, safety, capability, and the like. The learning process has just begun when a so-called lessons-learned document has been produced. In order to bring the learning process to fruition, change in management/ implementation must take place in a fashion that leaves the organization with improved prospects for future success?⁸

CMC (including both crisis leadership and crisis lawyering) should be seen as an “extreme” activity requiring high levels of psychological, organi­zational, and professional preparedness. Though, as we will see, many legal subdisciplines involve aspects of crisis lawyering, this challenge has thus far not received much attention from legal scholars and practitioners.

Is there something unique about crisis lawyering that calls for particular skills and expertise? Is there a particular approach to a crisis situation that a lawyer should embrace? Is crisis lawyering different from traditional lawyer­ing, and does it require a lawyer to approach his or her work differently, with different considerations in mind? Are all crises different, so there is no single way to approach this type of lawyering? This work attempts to address these and other questions as the contributors—experts in the field who are them­selves handling crisis situations—help to define not only the qualities of crisis lawyering but also the strategies and tactics a lawyer can and should utilize when helping a client to navigate through a crisis situation. As we hope the contributions to this volume show, crisis lawyering is in fact different from tra­ditional lawyering and often requires the lawyer to approach his or her work in ways that take into account a level of risk and complexity that often sets it apart from traditional lawyering. Such complexity and risk require not only a differ­ent approach but also a creative one that focuses on communication, informa­tional awareness, interdisciplinary strategies, and effective decision-making.

The collection of chapters is organized into four parts that highlight simi­lar themes and address similar questions. In Part I (“Beyond the Familiar and the Imperative of Creativity”), we see lawyers who were thrust into new terri­tory and needed to bring creativity to their work in order to address the crisis at hand. Caroline Bettinger-Lopez (chapter 1) explores what it is like when traditional legal avenues seem foreclosed and a legal advocate must work with her client to pursue new and creative channels for addressing a crisis. Baher Azmy (chapter 2) addresses the role that lawyers played in bringing law to an otherwise lawless place: the detention facility at Guantanamo Bay, Cuba. Christy E. Lopez (chapter 3) examines the role that the US Department of Justice played in addressing the policing crisis in Ferguson, Missouri. David McCraw (chapter 4) writes about his experience in the counsel's office at the New York Times, where hostage negotiations and other crises that would not seem to be the bailiwick of a lawyer nevertheless became his responsibili­ties. Similarly, Lee Wang (chapter 5) explores the role that lawyers played in making changes at the courthouse, where lawyers had to take frontline roles in addressing the crisis facing their clients, even engaging in creative acts of civil disobedience in furtherance of their clients' interests. In a similar vein, Sarah Rogerson (chapter 6) discusses the role that creativity plays in crisis lawyering; in defending her clients from deportation, they had few rights and seemingly few resources. In each of these situations, the contributors describe being put in situations where traditional lawyering practices and approaches did not seem sufficient to address the particular crisis at hand.

In Part II (“Crisis and Systemic Contexts”), we attempt to capture the fact that lawyers must deal with a range of somewhat similar crises, all of which required strategies to deal with systemic and broad issues that created the cri­sis situation. At the same time, the differing nature of each crisis situation led to different approaches and to lessons learned. John Travis Marshall (chapter 7) explores lawyering tactics used to address the fallout from natural disasters and the role lawyers play in long-term recovery efforts. Also dealing with en­vironmental crises, Eleanor Stein (chapter 8) describes the state of New York's efforts to address one aspect of climate change, which she describes as the “long emergency.” Another such emergency was the crisis of homelessness in New York City during the 1980s, and Richard Pinner (chapter 9) describes the legal strategies deployed to address that crisis. Around the theme of economic inequality, Carmen Huertas-Noble, Missy Risser-Lovings, and Christopher Adams (chapter 10) discuss their efforts in addressing economic and politi­cal inequality by helping their clients form a low-income, worker-owned co­operative. Unlike natural disasters, or slowly unfolding disasters like climate change or rising economic inequality, David Turetsky (chapter 11) describes his work as an election lawyer, when the lawyer knows precisely the day on which the “crisis” will occur.

Part III (“Beyond Borders and Silos”) brings an international focus to this volume. Brian Wilson and Nora Johnson (chapter 12) explore the role of law­yers cooperating in international crises and set forth best practices and com­petencies for doing so. In a similar vein, volume coeditor Eric K. Stern, Brad Kieserman, Torkel Schlegel, Per-Ake Martensson, and Ella Carlberg (chapter 13) describe the lessons they learned training Swedish crisis-response lawyers and how their approach to crisis lawyering generally was similar to, and in some respects different from, the approach that has been developed in the context of domestic crisis response in disasters involving the Federal Emer­gency Management Agency in the United States.

Following on the theme of educating lawyers for crisis response, in Part IV (“Educating and Skill-Building”) Muneer Ahmad and Michael J. Wishnie (chapter 14) describe their work training students at Yale Law School dur­ing several crises, including the emergency response to the Trump adminis­tration's travel ban. Similarly, Scott Westfahl (chapter 15) describes his work training lawyers to become leaders in crisis situations. Jay Sullivan (chapter 16), a lawyer and expert in crisis situations, also shares key lessons on how to communicate effectively in crisis situations.

In the conclusion we attempt to capture some of the key questions and cross-cutting themes of the essays. In the chapters throughout this volume, readers will see that several critical questions emerge in the field of crisis law­yering, including the following:

■ How do lawyers define a crisis situation in their work, and does this vary depending on the context?

■ Who is the client in crisis lawyering?

■ What are the potential conflicts of interest that emerge during crisis law­yering that may not arise in traditional advocacy settings?

■ Are the ethical rules governing lawyer conduct and standards of care (dili­gence) relaxed in crisis situations?

■ How do lawyers ensure effective lines of communication in crisis situations?

■ What expertise must a crisis lawyer possess in a given crisis situation?

■ How do crisis lawyers interact with leaders and other constituencies in crisis situations?

■ How do crisis lawyers interact with other professionals and disciplines in crisis situations?

■ Are there common guiding principles for crisis lawyering that emerge from these contributions?

■ Can anyone plan, prepare, and train for crisis lawyering?

While on its own each chapter addresses many, if not all, of these ques­tions, the conclusion attempts to highlight and surface the ways that, taken together, the chapters help us to understand the contours of the emerging field of crisis lawyering, using these questions as the prompts that help us define this area of practice.

In the end, this book is aimed at two kinds of lawyers (and lawyers to be): those having or seeking highly specialized and crisis-prone practices who will see crises and near crises on a relatively frequent basis; and those who may see them rarely—if at all—during their careers. In either case, cultivating an understanding of the art and science of crisis lawyering will be helpful. In the former case, this volume will help provide a conceptual framework, vocabu­lary, good practices, and professional benchmarks for thinking about how to be a better crisis lawyer. In the latter case, reflection on the rigors and ethical challenges of crisis lawyering is a kind of insurance policy to be salted away in the memory palace for a future rainy day and offers a chance to explore con­texts in which professional challenges and dilemmas arise in more traditional forms of lawyering in particularly dramatic and vivid form.

As was recognized long ago in ancient Chinese thought and reflected in Chinese characters, crises bring both dangers and opportunities. Minimizing the dangers (and damages) and capitalizing on the opportunities inherent in crisis situations require not only the effective enactment of professional roles and application of general knowledge and skills by lawyers and others but also a broader understanding of the nature of crises and the legal, ethical, and practical challenges associated with crisis management. They require both a professional and personal capacity to cope with the highly demanding, and often emotionally loaded, tasks and contexts associated with crisis lawyering. This volume and the stories of our contributors provide a rare, and perhaps at times even frightening, window into this world. As the proverb says: “Fore­warned is forearmed.”

NOTES

1 Thomas Friedman, Thank You for Being Late: An Optimist’s Guide to Thriving in the Age of Accelerations 3-5 (2016).

2 Some recent research has begun to address some aspects of lawyering in disaster and crisis situations. See, e.g., Peter Margulies, Legal Dilemmas Facing White House Counsel in the Trump Administration: The Costs of Public Disclosure of FISA Requests, 87 Fordham L. Rev. 1913 (2019) (describing what author calls “lifeboat lawyering,” which involves serving as a limited check on potentially illegal activity within an institution); see also a recent symposium on national security lawyering in crisis situations in volume 31 of the Georgetown Journal of Legal Ethics in 2018.

3 Samuel Henry Prince, Catastrophe and Social Change, Based on a Sociological Study of the Halifax Disaster 212 (1920).

4 Charles F. Herman, Some Consequences of Crisis Which Limit the Viability of Organizations, 8 Admin. Sci. Q. 61, 61-82 (1963); Alexander L. George, Avoiding War: Problems of Crisis Management (Alexander L. George & Yaacov Bar-Siman-Tov eds., 1st ed. 1991).

5 Coping With Crisis: The Management of Disasters, Riots and Terrorism (Uriel Rosenthal et al. eds., 1989); Managing Crises: Threats, Dilemmas, Opportunities 5-27 (Uriel Rosenthal et al. eds., 2001); Mega-Crises: Understanding the Prospects, Nature, Characteristics, and the Effects of Cataclysmic Events (Ira Helsloot et al. eds., 2012).

6 Michael Regester & Judy Larkin, Risk Issues and Crisis Management in Public Relations: A Casebook of Best Practice (4th ed. 2008); Robert R. Ulmer et al., Effective Crisis Communication: Moving From Crises to Opportunity (4th ed. 2017); Eva-Karin Olsson, Crisis Communication in Public Organisations: Dimensions of Crisis Communication Revisited, 22 J. of Contingencies and Crisis Mgmt. 113, 113-25 (2014).

7 David Kamien, McGraw-Hill Homeland Security Handbook: The Definitive Guide for Law Enforcement, EMT, and All Other Security Professionals (2nd ed. 2012); James M. Kendra and Tricia Wachtendorf, Elements of Resilience in the World Trade Center Disaster: Reconstituting New York City’s Emergency Operations Centre, 27 Disasters 37, 37-53 (2003).

See, e.g., Andrew Ross Sqrkin, Too Big to Fail: The Inside Story of Hqw Wall Street and Washington Fqught to Save the Financial System—and Themselves (2009).

Ian I. Mitroff & Christine M. Pearsqn, Crisis Management: A Diagnostic Guide for Improving Yqur Organization's Crisis­preparedness (Jossey Bass Bus. and Mgmt. Ser. 1993).

See, e.g., Eric K. Noji, The Global Resurgence of Infectious Disease, 9 J. of Contingencies and Crisis Mgmt. 223 no. 4 (2001); SARS From East to West (Eva-Karin Olsson & Lan Xue eds., 2011); Donatq Grecq et al., Stockholm: ECDC, Review of ECDC's Response to the Influenza Pandemic 2009-2010 (2011).

Arjen Bqin et al., The Politics of Crisis Management: Public Leadership Under Pressure (2nd ed. 2016); see also Leonard J. Marcus et al., Meta-leadership and National Emergency Preparedness: A Model to Build Government Connectivity, 4 Biosecurity and Bioterrorism: Biodefense, Strategy, Practice, and Science 128 (2006); Sean T Hannah et al., A Framework for Examining Leadership in Extreme Contexts, 20 Leadership Quarterly 897 (2009).

Cqping With Crisis (Uriel Rosenthal et al. eds., 1989); Bqin et al., The Politics of Crisis Management.

Eric Stern, Preparing: The Sixth Task of Crisis Leadership, 7 J. of Leadership Stud. 51 (2013); Eric Stern, Crisis, Leadership, and Extreme Contexts, in Leadership in Extreme Situations 41 (M. Holenweger et al. eds., 2017). Hannah et al., A Framework, 902; see also Marcus et al., Meta-leadership 128. K. E. Weick, Enacted Sensemaking in Crisis Situations, 25 J. of Mgmt. Stud. 305 (1988); Eric Stern, From Warning to Sense-Making: Understanding, Identifying and Responding to Strategic Crises, in The Changing Face of Strategic Crisis Management (Org. for Econ. Co-operation Dev. 2015).

David S. Alberts & Richard E. Hayes, Power to the Edge: Command and Control in the Information Age 102 (Info. Age Transformation Ser. 2003).

Eric Stern, Stockholm Univ., Crisis Decisionmaking: A Cognitive-Institutional Approach (1999). Eric Stern et al., Post­Modern Crisis Analysis: Dissecting the London Bombings of July 2005, 1 J. of Organizational Effectiveness: People and Performance 402 (2014).

Bqin et al., The Politics of Crisis Management; Eric Stern, Crisis and Learning: A Conceptual Balance Sheet, 5 J. of Contingencies and Crisis Mgmt. 69 (1997).