During times of crisis, lawyers often need to rely on nontraditional and unexpected skills. “Don’t just be a lawyer. Be a strategist, understand nuance, and have a view to how multiple constituents will view your actions,” Ralph C. Martin II, Northeastern University’s senior vice president and general counsel, told a Harvard Law School virtual panel on Oct. 5.
The day-long symposium, “Crisis Lawyering: Legal Practice in the New Normal,” hosted by the HLS Center on the Legal Profession, brought together legal, healthcare, corporate and academic experts who had worked through numerous crises, from COVID and Hurricane Katrina to the Haitian cholera epidemic and corporate malware attacks. While each of these crises required a different response, the day’s panels focused on the wider-ranging lessons that could be drawn from all of them.
The conference was grounded in a recent edited volume, “Crisis Lawyering: Effective Legal Advocacy in Emergency Situations” (NYU Press) and the September/October issue of the Center on the Legal Profession’s magazine, The Practice, which also focused on these issues. Each of the participants explored a central theme: crisis lawyering is not when the client experiences a crisis, said co-editors Ray Brescia and Eric K. Stern in the opening session, it is when lawyers themselves experience a situation where their professional training and organizational functions are tested.
HLS Lecturer on Law and clinical instructor in the International Human Rights Clinic Beatrice Lindstrom recounted the challenges she faced in Haiti during the morning panel, “From the Front Lines: Case Studies in Crisis Lawyering.” As moderator, HLS Professor David B. Wilkins ’80 pointed out this was a particular challenge for a human rights lawyer as the cause of the 2010 cholera outbreak, which followed a devastating earthquake, was ultimately traced to errors by the United Nations peacekeeping force.
“We started receiving reports that people were quite literally dropping dead from an unknown disease,” said Lindstrom, who arrived in Haiti shortly after her law school graduation. “This turned from a humanitarian crisis to an accountability crisis that called on the expertise of lawyers when the U.N. responded to all of this by denying the evidence and refusing to even investigate the source … This was an entirely novel situation. Suing the U.N. was not something that was in most lawyers’ repertoires.”
She identified three takeaways that apply to most crisis situations. The first is knowing who to take direction from: “In many crisis situations where you’re not working within an organization, you may not have clients who are able to give directions in how to respond.” A human rights lawyer, she said, might instead take cues from the affected communities and from other local lawyers and activists.
A second question was how to act when the law isn’t conducive to the client’s needs. In this case, the U.N. had legal immunity and there was no mechanism for settling civilian claims. “We needed to engage in creative problem solving.” This led to her third point, which was to consider the relative costs of action and inaction.
Her group ultimately decided to pursue a legal claim against the U.N. while engaging public involvement and media attention. And while the legal case failed, the latter succeeded; and public pressure built over six years until the U.N. committed to a remedial package. “That brings me to the importance of staying power,” she said. “Being willing to engage with these questions over the long run is an important part for all lawyers responding to crisis.”
Kroll Inc. CEO Jacob Silverman said that a crisis can be seen as a macrosystem, one that involves recognizable patterns and an “ecosystem” of affected parties. While some happen within seconds (ransomware attacks, the Boston Marathon bombing) and others gather over millennia (climate change), he said that there are certain “patterns and archetypes” that a lawyer should learn to recognize. “Data is key to understand the pattern recognition and the muscle memory that is often critical in those micro-moments. Crises are not unique events when looked at through these lenses; there are certainties. We live in a VUCA world [the corporate-world acronym for volatility, uncertainty, complexity and ambiguity] and VUCA is a certainty.”
A keynote conversation between Wilkins and Brett Hart, president of United Airlines, focused on Hart’s promotion from general counsel to president in May 2020 — arguably the worst time for the airline industry— as well as what it was like for Hart to become the first Black president of a major airline just as a renewed attention to racial injustice was sweeping the country.
HLS Faculty Director of Executive Education Scott Westfahl ’88 moderated an afternoon panel that asked how lawyers can be prepared for 21st century crises, and whether a traditional legal education would even fill the need. “The world is becoming more complex, and this is a big question for legal education, both at law schools and within legal organizations,” he noted.
Yale Law School professor and deputy dean for experiential education Muneer Ahmad ’96 recalled an eventful 24 hours in which Yale’s Worker and Immigrant Rights Advocacy Clinic, which he codirects, acted against the Trump administration’s attempts to ban immigration from Muslim countries. On the night of January 27, 2017, when two former students called on behalf of clients, including a U.S. military interpreter, who had arrived at JFK Airport and were on the verge of being sent back to Iraq. An email immediately went out to students to construct a habeas petition, which grew into a larger effort.
“We went from 11pm to 5:30 the next morning identifying claims, researching to the extent we could, drafting and actually filing a complaint for a class action. We spent the rest of that day engaged in more legal filings in order to set up a hearing.” They also coordinated with media in the wake of protests that had sprung up at airports. “This all culminated in a hearing at federal court on a Saturday night. The courtroom was packed and a federal judge issued the first injunction that enjoined the Muslim ban, less than 24 hours after it had gone into effect.”
All of this, Ahmad recounted, required the clinic to put its existing skills to creative use.
“We had built up over the course of our practice certain types of competencies,” he said. “Our clinic has done dozens of habeas petitions in other contexts before, and we institutionally knew how to do that. We had relationships that were essential to this work; it came to us from former students. We were able to quickly engage a large number of organizations and lawyers, many of whom we had longstanding relationships with, so there was pre-existing trust and opportunities for collaboration. And we had the ability to move very quickly, which reflected a vision of our work as being embedded in communities. And we had cultivated a culture of experimentation in the clinic.”
The clinic, he said, had adopted a three-point model: Plan, do and reflect. “The planning in the Muslim ban case was compressed, the doing was accelerated, and the reflection was somewhat delayed. But we hewed to that same model even as we pushed each of those three poles in different directions.”
Working with FEMA after Katrina also posed special challenges, according to Brad Kieserman, who is now vice president for Disaster Operations and Logistics at the American Red Cross and who previously held several executive positions at FEMA. Local clients, he recalled, didn’t trust lawyers, and lawyers didn’t always understand the organization’s mission. A survey of lawyers and clients proved telling: “What the clients came back with was: ‘Hey, lawyers: You’re overrating your own effectiveness. … You may be giving us advice, but you’re not giving us solutions. And when you do give us solutions, we need to understand what you’re talking about’.” Thus, he said, crisis situations call for “a SALTy lawyer”: Solution-oriented, articulate, legally sufficient, and timely.
Working with FEMA after Hurricane Katrina posed special challenges, according to Brad Kieserman, who is now vice president for Disaster Operations and Logistics at the American Red Cross and who previously held several executive positions at FEMA. Local clients, he recalled, didn’t trust lawyers, and lawyers didn’t always understand the organization’s mission.
Microsoft’s Corporate Vice President and Deputy General Counsel Lisa Tanzi ’90 outlined the unique crises that would face a company of this size. Some of these may be obvious, like the impact of the pandemic. But other crises are subtler and more specific. “We create different versions of our products for different regions based on regulatory requirements — and occasionally you might wake up to an email that says we shipped the wrong thing to the wrong country. Or you’re at the end of a long negotiation and a deal, you’ve put the PR announcements in motion, then you go through the internal process and find out that someone missed a step.”
This, she said, calls for the lawyering skill of an effective postmortem. “I always say, never let a crisis go to waste. We’ll make some different mistakes, but let’s not make the same one twice.”