Educating Crisis Lawyers
From The Practice — September/October 2021
Law school clinics, interdisciplinary simulations, leadership training
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In "Beyond the Comfort Zone," Ray Brescia and Eric K. Stern describe situations in which lawyers act as first responders to meet a globalized world's pressing challenges. From hurricanes to homelessness, lawyers, Brescia and Stern write, are increasingly being called upon to act in first responder roles. In doing so, their traditional lawyering skills and training are being tested like never before. If lawyers are often taking on crisis roles, it raises the critical question: How do they gain the skills necessary to become such lawyer first responders?
In this story, we explore how would-be crisis lawyers are trained, including through experiential learning, leadership development, and cultures that stress a shift in mindset. First, we focus on Yale Law School's Worker and Immigrant Rights Advocacy Clinic, where faculty integrate the needs of their clients in cases ranging from the Muslim Ban to DACA with clinical legal pedagogy in a way that primes their students for careers that require both legal know-how and crisis management first responder skills. Second, we explore a collaboration between the Swedish Defence University and the Swedish Civil Contingencies Agency, which began offering additional training to government lawyers who were too often ineffective and overcautious in crisis situations. We also offer reflection from Scott Westfahl, faculty director of Harvard Law School Executive Education, on why the crisis situations lawyers face may require a broad reimagination of legal education.
Ultimately, this story seeks to answer two questions: How is legal education training lawyers to confront crises? And as lawyers are increasingly being called on in crises, what more could it be doing?
The clinic tackles crisis: The law school context
Plan. Do. Reflect. These are the simple, repeatable steps that underpin the typical clinical experience for many law students. During moments of crisis, however, what is "simple" or what is "typical" is tested. "Planning" can be compressed into just a few hours, such as after hearing that one of the first actions of the new U.S. presidential administration is to ban individuals from certain Muslim countries from entering the country, while many such individuals are in the air en route to the U.S. "Doing" may not be traditional law student work, such as writing briefs or reading case law—it might be calling air traffic control to stop a plane from returning an asylum seeker to Iran. "Reflecting" may have to wait when pivoting between strategies that might stop the ban completely, not simply provide a temporary injunction.
You can't wag a finger at a student and say, 'Be creative! Be creative!' You've got to live it.
Michael Wishnie, William O. Douglas Clinical Professor of Law at Yale Law School
This is the situation for the Worker and Immigrant Rights Advocacy Clinic (WIRAC) at Yale Law School, where students and faculty regularly engage in "crisis lawyering." In the last few years, WIRAC has undertaken cases against the Muslim Ban, advocated for the longevity of the Deferred Action for Childhood Arrivals (DACA) program, and worked with those threatened with deportation to claim sanctuary. In a chapter in the book Crisis Lawyering, "Call Air Traffic Control! Confronting Crisis as Lawyers and Teachers," Muneer Ahmad, Sol Goldman Clinical Professor of Law, and Michael Wishnie, William O. Douglas Clinical Professor of Law, who co-run WIRAC alongside Professor Marisol Orihuela, examine how such cases have provided rich educational opportunities for their students while also stretching the bounds of clinical teaching and lawyering.
If the day-to-day substance of their work often entails the "scale, magnitude, impact, and urgency" of a crisis, how do Ahmad and Wishnie try to instill the skills, mindsets, and techniques of crisis lawyering in their students? And how do they do it while still advocating on behalf of clients? "You can't wag a finger at a student and say, 'Be creative! Be creative!' You've got to live it," says Wishnie. This, they both suggest, is what makes clinics such ripe ground for training crisis lawyers. "Law clinics can have a laboratory quality," they write in their book chapter, "melding experimental practice with observation and learning." Throughout the two cases they explore in Crisis Lawyering—their work challenging the Muslim Ban and their advocacy on behalf of a Guatemalan woman, Nury Chavarria, who claimed sanctuary in a church after being threatened with deportation from ICE—Ahmad and Wishnie emphasize how they utilized collaboration, modeling, and reflection to teach students to take risks even while acting with urgency in high-stakes scenarios and remaining conscientious of their own biases.
Before contributing to Brescia and Stern's volume, Ahmad and Wishnie say that they did not necessarily think about what they were doing as "crisis lawyering"—let alone the skills associated with it as a product of their teaching. "There's a tension between the extent to which crisis lawyering is exceptional and the extent to which all lawyering on behalf of poor people in marginalized communities is crisis lawyering," says Ahmad. However, when they reflected on it, a crisis framework made a lot of sense, both as part of WIRAC's mission and insofar as it pushed them and their students to think outside traditional legal teaching and practice about what it meant to be—and what was required of—a first responder lawyer. "Crisis lawyering is a 'stress test' for one's entire practice and for the clinic," Ahmad says. This was certainly the case when WIRAC took on the Muslim Ban.
The speed with which we had to move in each of these cases required that there be a high level of preexisting trust among the lawyers and the various organizations.
Muneer Ahmad, Sol Goldman Clinical Professor of Law at Yale Law School
It was nearly 10 p.m. on Friday, January 27, 2017, when Wishnie received a call from two former students about Hamid Khalid Darweesh, an Iraqi interpreter and engineer who had received refugee status after working with the U.S. government. Darweesh, alongside others from predominantly Muslim countries, had been detained at John F. Kennedy International Airport under then-President Trump's executive order, signed just hours earlier that day. For many, including WIRAC's collaborators, the order itself was not unexpected. What was unexpected was WIRAC's involvement—involvement that took them to the front lines of an emerging legal-political battle. The faculty and students quickly scrambled and, by the next evening, with partners from the International Refugee Assistance Project (IRAP), the National Immigration Law Center, and the ACLU Immigrants' Rights Project, had obtained the first nationwide injunction against any Trump administration policy—the January 2017 Muslim Ban.
In the days and weeks that followed, it became clear how critical teamwork, collaboration, and trust were to effective first responder advocacy and, later, as vital components to communicate to their students about lawyering during a crisis. "The speed with which we had to move in each of these cases required that there be a high level of preexisting trust among the lawyers and the various organizations," Ahmad says. "You can't establish that trust as you are engaged in this form of lawyering. There has to be some kind of reservoir of trust that you can draw upon in order to make those quick choices and to work effectively under those high stress conditions without those relationships being corrosive or without making decisions that are actually bad for the clients."
That is not to say that trust was ever-present. For instance, Wishnie notes that there were moments in which relationships and collaborations were challenged, often explicitly so. But it was precisely this sort of trust shortcoming that highlighted the importance of strong, pre-existing relationships that you can rely on in moments of crisis. Knowing the law is not always enough. Indeed, during moments of crisis, Ahmad says, it is easy for individuals to tend toward the default. For WIRAC during the Muslim Ban case, this meant both an inequitable division of labor along normative lines and an overreliance on their own expertise—immigration law—at the expense of additional arguments against, for instance, religious discrimination.
While clinical pedagogy typically foregrounds a student's active participation in a case, certain elements of crisis lawyering—including, most notably, compressed timelines and often uncertain courses of action—often require faculty to act in a more directive fashion. This includes forcing decision-making over open discussion or taking over the drafting of a motion with an imminent deadline.
Crisis lawyering is a reminder of how difficult the things are that we ask our students to do on a daily basis.
Michael Wishnie
In such cases, Wishnie emphasizes how modeling—the precise opposite of the primary clinical pedagogy in WIRAC, where students lead cases, exercise judgment, and execute performative activities such as court appearances—gives students a different kind of educational experience. He notes at least three benefits. First, "students can see how experienced lawyers confront new problems, in a sense to see their teachers not quite as novices but also not being the full expert on something, and then grappling with how to contend with that," Wishnie said. "This continues to push and stretch us as lawyers to step outside of our comfort zones and make spaces where we continue to learn."
Second, Wishnie stresses that modeling creates, as he puts it, "a pedagogical space" in which "students—even as they are every day being asked to grow—see how others do it and to understand what that actually is for most lawyers, a lifelong process."
Finally, there is a "humbling" benefit for the faculty themselves. He says:
Crisis lawyering is a reminder actually of how difficult the things are that we ask our students to do on a daily basis. So in the exceptional moment when one of us has to prepare for an oral argument, or take a deposition, or undertake some other lawyering process that we ask our students to do all the time, we feel the stress, the butterflies, and the uncertainty. We try to share that as well with the students so they understand that they are not alone in having those types of insecurities, but also, they see the way in which a more experienced lawyer comes to handle them.
Moments of crisis, Ahmad and Wishnie note, both require and help them teach creativity and risk-taking, elements that are often missing or downplayed in a traditional legal education (for more, see "Learning to Lead" below). Students who re-enroll in WIRAC for many semesters have the benefit of seeing faculty respond openly to their ideas, and in some cases, for those novel ideas to make or break a case. Wishnie suspects that one of the reasons the students were so effective in the Muslim Ban case, for instance, was that many had recently experienced a win in their advocacy for DACA in a novel way: they attacked a Texas injunction on DACA by filing a new lawsuit in Brooklyn. Many experienced civil rights attorneys were skeptical. "In the American system, ordinarily, you appeal vertically," says Wishnie. If you lose in the trial court, you go to the appeals court. If you lose in the appeals court, you go to the Supreme Court. Students asked them: "'What if we attack horizontally?' And the students worked up these theories, and they brought them to me and Muneer and the other supervisors," Wishnie says. "We showed them to other lawyers, honestly, who said, 'Yeah, no. That's not how it works. Appeals go up, not sideways.'" Ahmad and Wishnie decided to trust their students, leading them to launch litigation that led eventually to unexpected victories. Wishnie explains:
The Court's initial reaction was similar to that of the students. In the first conference on the case, the Court indicated that the rights of a resident of Brooklyn or Queens would be decided in federal court in Brooklyn, not by a nationwide injunction issued in Texas—more or less exactly what the student research had concluded. Then a few months later when the Muslim Ban came down, students knew not just how to imagine, but if we have an idea and we look at it and we test it and we explore it, even if no one else is pursuing it, it might not be crazy. And that kind of creativity, that invitation to explore lots of ideas, I think, is something that you can teach only by actually doing it.
While crisis lawyering offered real-time, pedagogical innovations, these moments were also "stress tests" for the clinic's normal mode of operations. For instance, reflection is a critical part of the clinical experience, but in crisis situations it risked being—and often was—shortchanged. Moving forward, faculty have become increasingly attentive to emphasizing reflection, even during crisis, as a crucial part of the three-step clinical practice. And having open discussions and insisting on time in weekly supervisions or during fieldwork has become a vigilant practice at WIRAC. Focusing on reflection has important clinical and crisis lawyering benefits: it helps instill students as co-creators of a culture conducive to risk-taking, creativity, and collaboration. WIRAC is proof of concept that clinical pedagogy can, as Ahmad puts it, "be responsive to the world we're living in" and operate on "uncertain terrain." He goes on,
Crisis lawyering is messy at times. It doesn't always deliver the kind of capstone experiences of standing in court in the last weeks of law school and making a closing argument. But it does give them an incredibly rich set of experiences that meet the moment in which we and our clients are living.
How might legal education respond to the world we are living in? Part of it, Wishnie notes, might mean drawing deeper and more fertile connections between clinical and doctrinal courses. It may be, he says, "sitting in an administrative law class and thinking about how agencies can and should function. And then go deal with the realities of immigration court and what that actually looks like in practice." Likewise, they may be in a "federal jurisdiction class," then move to WIRAC where they are "collaterally attacking a nationwide injunction from a courtroom in Brooklyn." "On the DACA case, the students did this incredibly deep and complicated research—some of it historical and a lot of it very technical—about a set of really complicated civil procedure questions," says Ahmad. "Was that clinical work? Was that doctrinal work? Was that theoretical work? If we're engaging our students in complex lawyering then those kinds of divisions should fall away."
Learning how to fight fire in Sweden: The professional context
"The plan is nothing, but planning is everything," says Ella Carlberg, currently a senior adviser on homeland security affairs at the Swedish Embassy in Washington, D.C. This counterintuitive, perhaps confusing, paraphrase of Eisenhower underpins the mindset and approach she has tried to communicate when teaching lawyers who confront crises. In her work with the FEMA-like government agency, the Swedish Civil Contingencies Agency (known as Myndigheten för samhällsskydd och beredskap or MSB), she tells individuals who manage high-stakes scenarios where time and information are frequently limited: It's not about using the exact strategies you prepared, it's about preparing yourself psychologically to operate well in stressful situations.
Swedish lawyers did not have a seat at the table in crisis situations.
Carlberg began working with MSB in 2009, where she handled international aspects of their legal agenda. After being deployed to Liberia to support an Ebola treatment center and coordinating forest fire relief efforts, Carlberg, herself a lawyer, saw the need for lawyers to receive additional training if they were going to be effective in crisis scenarios. Inspired by professional education programming put together by FEMA, leadership at MSB and across government and civil society in Sweden began building a network to explore how they could fill the current gaps in legal training. The story is documented in a chapter Carlberg coauthored with Eric Stern, professor at the College of Emergency Preparedness, Homeland Security, and Cybersecurity at SUNY Albany; Brad Kieserman, formerly chief of counsel at FEMA and now with the Red Cross; Torkel Schlegel, senior legal advisor at MSB; and Per-Åke Mårtensson, deputy director for Executive Education at the Centre for Societal Security, Swedish Defence University in Crisis Lawyering. The chapter relates how the FEMA Advice in Crisis (AIC) Project—itself a program geared toward training government lawyers to provide better decision-making advice—was adapted for the Swedish context by a collaborative initiative between MSB and the Swedish Defence University.
"One key aspect we realized was that Swedish lawyers did not have a seat at the table in crisis situations," says Carlberg. While the AIC framework that had first gained traction in the U.S. came with several helpful modules designed to accustom lawyers to what they might do when confronted with a crisis, the Swedish initiative devoted much of their training to helping lawyers understand the mindset of being in a crisis at all. That is, they had to convince lawyers they should have a seat at the table.
As with the FEMA AIC framework, what ultimately became the Swedish Civil Contingencies Agency/Swedish Defence University Crisis Legal Advisers Initiative developed after government leaders described lawyers as too cautious, slow, and bureaucratic in crisis situations where decisions had to be made with incomplete information and under pressure. The FEMA AIC project advanced modules that would help lawyers prepare for crisis, identify the socio-behavioral elements of delivering advice in crisis—such as active engagement and developing good group dynamics—and follow through on the actual steps and questions to ask when delivering advice in crisis. Lawyers who excelled, they found, conformed to what became the SALT performance standard:
Solution-oriented: open to creative and legally viable options, while avoiding getting bogged down in obstacles;
Articulate: use jargon-free, easy-to-approach language with evidence-backed positioning appropriate to the audience;
Legally sufficient: concentrate on facts first, then apply the law, making sure any conclusions adequately comply with statutory, regulatory, or federal requirements;
Timely: respond on demand to requests for legal advice with attention to timelines, while also anticipating such requests and potential problems that may require counsel.
The Swedish Crisis Legal Advisors course first launched in 2016. The team of practitioners from the Swedish Civil Contingencies Agency and the academics at the Swedish Defence University were surprised at how well the FEMA content translated across borders. In the first year, trainees included lawyers from county administrative boards across the country, who, acting in local leadership contexts, faced a large variability of legal work. Carlberg notes, "The goal was to adapt the training to a Swedish context—to have Swedish examples ready and have situations that everybody recognized, that everybody could relate to, and to make people understand that they had a role to play and that they needed to build a network between themselves."
Carlberg drew on her experiences to make the participating lawyers understand, as she says, "You have a role to play in crisis situations. You need to find a seat at the table, build a community of lawyers, and understand what the conditions are for working in a crisis." She goes on to give an example:
During a major forest fire, I had a situation where I called up a lawyer at another agency. I needed them to help me with an area that I wasn't familiar with, because you know what you know, and a crisis is not the time to sit down and learn a new legal area. Instead, you need to know who to call. So I contacted them, and they said, "Yeah, maybe we can set up a meeting in three weeks." And I go, "No, you don't understand. I have a full staff meeting in 30 minutes. I need a ballpark understanding to know if we need to continue digging into this." It's a whole different mindset to work with when you're in a crisis.
Carlberg and other facilitators spent much of the time framing the situation and asking lawyers to think about what crisis might look like for them and what—or who—they would need in such a situation. The four-day training culminated in a simulation designed to test them mentally and emotionally, while also forcing them to work with other agencies and roles throughout government, such as communications, to problems-solve. While the specificities of the simulation have been adapted year-to-year—it has focused on things ranging from data breaches to military threats—the actual subject matter is less important than the role-playing it puts the lawyers through. "The training, and especially the big scenario exercise, is a way to give them a bit of a muscle memory for crisis management," Carlberg says.
In that first year, Carlberg could tell everyone was unnerved by the simulation process itself; as lawyers, they just were not used to working in such a way. As lawyers, she says, "we are trained to receive our assignment, go back to our desk, work it through, look at all the eventualities, and bring back a comprehensive brief of the situation and provide the right answer." She goes on, "That just is not possible in a crisis with intense time pressure, low information, and high stakes. Oftentimes, there isn't a right answer, and lawyers—most people—are pretty uncomfortable working under those conditions."
A crisis is not an 'us and them' type situation. Everybody needs to work to further the same common goal.
Ella Carlberg, senior adviser on homeland security affairs at the Swedish Embassy in Washington, D.C.
Sitting in that discomfort was important for the simulation. In the exercise, facilitators would interrupt with surprising information, and individuals would be confronted with "reporters" and public relations. (For more on crisis communications, see "Communicating Clearly.") Through the exercise, the simulation's showrunners pushed lawyers to be agile, humble, and adaptable—lawyers might need to play different roles in different moments and may need to adjust their decision-making as information changes. "It's important to understand what your role is in that group," Carlberg says. "You're there to uphold the law and act as an advisor, but in crisis situations that has to occur in a teamwork-based environment. A crisis is not an 'us and them' type situation. Everybody needs to work to further the same common goal."
As the training has become increasingly popular, Carlberg suggests that it could be extended beyond government lawyers. "Crisis affects all of society—you need a whole society approach," she says. "Ideally, the training would spread beyond government lawyers. For example, a lot of the critical infrastructure that might be involved in a crisis is not owned by the government, so it is relevant for private actors to be involved. And crisis doesn't stop at borders. You need to have established relationships with international partners so that you can work effectively together when crisis hits."
Lawyers called on to act in crisis scenarios increasingly "find themselves facing a crisis within a crisis as they fail to rise to the occasion and meet the expectations of their leaders and teammates," write Stern, Kieserman, Schlegel, Mårtensson, and Carlberg. The Swedish Legal Advice in Crisis Project trainings, Carlberg goes on, "are not there to teach them the law. It's the application of the law under these intense circumstances that's interesting."
Learning to lead in a crisis
"The legal profession has continually ignored leadership development at its peril," says Scott Westfahl. "And that means during crisis situations, it's not the first inclination of the lawyer to even see themselves in a leadership role." As faculty director of executive education and a professor of practice at Harvard Law School, Westfahl thinks a lot about the gaps in training left by traditional law schools and continuing education for practicing lawyers. Two related big-ticket items frequently occupy his attention—leadership and teamwork. Both, he says, are critical for lawyers to succeed in general and are all the more critical for lawyering in crisis.
In Crisis Lawyering, Westfahl details how legal training stresses certain characteristics and approaches, such as risk aversion, a high degree of skepticism, and often quiet, independent work. While there can be very good reasons for such approaches, they risk detracting from lawyers' ability to operate effectively in a crisis. "Leadership is an activity, not a role," Westfahl says. A mindset shift would be one strategy to help lawyers grasp their full potential. In his chapter, Westfahl describes the "meta-leadership model" developed in the wake of September 11 as one concept that could be applied during crisis lawyering. The approach describes five attributes of leadership:
Self-awareness: manage one's emotions in stressful situations, so as to employ rational critical thinking and make evidence-based decisions.
Accurate diagnosis of the crisis situation: clearly understand, assess, and identify from all sides, so as to recommend practical solutions that take into account the complexity of the situation.
Managing up: understanding, persuading, and working effectively with decision-making superiors.
Managing across: effectively collaborating with and unifying efforts between peers.
Managing down: cultivating an atmosphere that utilizes followers' strengths and effectively draws on hierarchy for planning and problem-solving.
In addition to—and in many ways underpinning each of—those five attributes, Westfahl teaches all of his students about the importance of teamwork, collaboration, and networks. He says:
When you're facing a complex situation, you want to have a diverse set of inputs for better decision-making, and you want to have an inclusive environment that allows those diverse perspectives to be heard and aggregated, considered, and molded into the best potential solution. And it's only through effective teamwork that you achieve the benefit of those diverse and inclusive perspectives.
To instill such frameworks in his students, he uses case studies from both Harvard Law School and Harvard Business School, as well as simulation exercises in which students, at both the JD and post-JD level, must rely on each other to accomplish certain tasks or risk failing the assignment. (For more on the importance of practice and simulation to deal with crisis, see "Communicating Clearly."). Assigning teamwork to law students is not enough, Westfahl says, unless you equip them with effective frameworks for collaboration.
Westfahl regularly stresses to his students the critical need for an effective "team launch," where teams get on the same page, understand their shared goals and the context and importance of the project, share information about their backgrounds and strengths, and start to map out their roles and responsibilities—all of which starts to help them build the trust dynamics critical to lawyering in crisis (see "The Clinics Tackles Crisis" above).
To help students understand the importance of building inclusive, respectful teams, Westfahl also teaches a simple brainstorming technique often used by design thinking experts: first, individuals do "heads down" brainstorming on their own to generate a broad set of ideas. Then, each individual shares their ideas with the team, without critique or comment other than clarifying questions, so that at the end the team can step back, look at all the ideas presented, group them, build upon them, and collectively brainstorm around a broader set of ideas. "We typically teach exactly the opposite method in law school―one student throws out an idea, and the rest of the class and the professor then try to gun it down from all possible angles." While that Socratic approach is effective in honing students' legal reasoning, "it's so deeply embedded after the first year of law school that it is hard for them to turn that off and brainstorm effectively in a group," says Westfahl.
He also teaches teams to use regular group reflection focused not only on their progress against project goals but also about how well they are working together as a team (e.g., each person takes two minutes at the end of a meeting to reflect upon one thing that is working well and one thing the team should take a look at doing differently). These basic exercises, commonly used by teams in other professions, add value to students' movement toward these mindset shifts. The process works, and with practice, teams are able to work through stressful situations.
"Because lawyers are increasingly involved in any meaningful crisis," says Westfahl, it is urgent that legal education and professional training programs adapt so that lawyers can realize the full scope and breadth of their abilities during crises. "We need to help students be more capable when they encounter these situations," he says. And that may require a substantial rethinking of how legal education gets done.
Lessons for crisis lawyering pedagogy
How do you teach crisis lawyering? First, as Carlberg notes, the goal is not to teach the law. Rather, teaching crisis lawyering means teaching students the ability to astutely apply the law even in the midst of crisis. Recognizing the difference—and the importance of the latter—is part of the battle.
Second, teamwork, collaboration, and trust are foundational to crisis lawyering. Trusting relationships between individuals with diverse perspectives and expertise go far during a complex, high-stakes event. Still, diversity alone is not enough, says Westfahl. You also need an inclusive environment that can take advantage of a greater range of perspectives and experiences. Westfahl says, "I think the ability of a team to generate a broader set of potential solutions, ideas, and data is enormously powerful. And if the team works well together, they can then narrow the potential solutions set, make decisions about what data is relevant and what isn't, and come to a better solution than an individual would likely be able to do."
Finally, teaching crisis lawyering is a stress test. It's uncomfortable because, until now, legal education and professional development have not encouraged the kinds of thinking and situations that would build effective lawyers. It is humbling and requires individuals to operate in uncertainty. But what is crisis, if not operating in uncertainty?
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