Crisis Lawyering

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:

1. Be Flexible: Maintain a willingness and ability to participate in interdisciplinary and multi-professional teams.
2. Creativity Is Critical: In novel situations, it may be difficult to rely on arguments, approaches, and tactics that they have utilized in other settings.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. Partner with Crisis Communicators: the lawyer’s instinct to “say as little as possible” is not necessarily the right strategy in every situation.
10. 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.

The list above is excerpted from the lead story in The Practice‘s latest issue, “Beyond the Comfort Zone: The personal and professional challenges of crisis lawyering,” by Ray Brescia and Eric K. Stern. The story is grounded in and draws from Brescia and Stern’s recent edited volume, Crisis Lawyering: Effective Legal Advocacy in Emergency Situations (NYU Press: 2021).