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How to Collaborate Effectively With Lawyers During a Crisis By Eric Stern, Gregory Saathoff and Brad Kieserman Emergency Management March 12, 2012 http://www.emergencymgmt.com/disaster/How-to-Collaborate-Effectively-Wit h-Lawyers.html Stafford Act disasters, like other forms of crises, place inhumanly difficult demands on people. Leaders are forced to make some of the most critical choices of their careers, all too often with lives and livelihoods hanging in the balance, under the most difficult imaginable circumstances. Traditionally journalists and scholars alike have tended to put leaders in the spotlight and examine the extent to which they rise to the challenge, or crash and burn, in the decisive moment. In recent years, however, there has been an increasing realization that a key determinant of success or failure in crisis stems from the interdependent relationship between leaders and their advisers. Wise leaders choose their advisers well and know when (and when not) to listen to them. Unwise leaders choose their advisers poorly and act without the benefit of good advice, often with devastating consequences. While there have been a substantial number of studies of leader-adviser dynamics (particularly in the realm of foreign policymaking), the relationship between leaders and lawyers in disasters has thus far received relatively little attention. In a unique collaboration launched in September 2010, an interdisciplinary team of researchers from the University of Virginia worked closely with senior leaders and lawyers from FEMA to explore effective, and less effective, forms of collaboration between leaders and lawyers in crises. We called this initiative Advice in Crisis (AIC). Following more than 60 AIC interviews and numerous group discussions, a number of key findings emerged and these are discussed below. What Leaders Want From Lawyers FEMA leaders want lawyers who will be loyal (and trustworthy) members of their teams, working effectively with other team members toward mission fulfillment. They want lawyers who can keep up with the rapid pace associated with the response phase of a disaster and who have the endurance to keep up that pace for weeks or months at a time, if necessary. They want lawyers who have a can-do attitude and who are willing to work creatively with the available legal authorities - such as those stemming from the Stafford Act - to enable rapid development and deployment of solutions to urgent problems. Crisis leaders do not want lawyers who are risk averse and whose knee-jerk reaction is to say "no" in a climate of fast-paced crisis decision-making where adaptation and innovation are essential to success. When identifying obstacles to a potential crisis action, leaders want their lawyers to distinguish clearly between matters of habit, "The agency never does that," guidelines, policy and statutory prohibitions. Leaders and their lawyers can overcome some types of apparent obstacles more easily than others. Habits may be easier to change than policies, and policies are easier to change (or circumvent) than laws. However, leaders also value integrity and judgment. They want a lawyer who is willing and able to pull the "emergency brake" if the team is on a collision course with the law. As one seasoned federal coordinating officer put it, "I don't want my lawyer to keep me out of court, I want my lawyer to keep me out of jail." How Lawyers Can Serve During a Disaster Based on the AIC project interviews, the researchers were able to distill three best practice models drawn from the skill set of a number of the best performing and most experienced FEMA lawyers. The interview responses converged around three key secrets of success that are consistently employed by high performing lawyers. The first model (PREP) focuses on mission preparation and outlines measures lawyers could take to be better prepared for field deployments, enabling them to orient themselves rapidly in a disaster, its sociopolitical context, and the crisis team (the leadership of a FEMA Joint Field Office). The second model (SOAP) outlines a systematic procedure for producing and delivering substantive legal advice and managing risk (informed by a holistic analysis of practical, legal and ethical considerations) to leaders. The third model (GAIN) explores the group context and the complex negotiation of role demands necessary to gain trust and influence, and strike an appropriate balance between team play and the unique responsibilities of the lawyer in a crisis organization. A key finding of the AIC leader interviews was that FEMA decision-makers' preferences coincided with the SALT (Solution oriented, Articulate, Legally sufficient, and Timely) performance standard recently developed by FEMA's chief counsel. The mnemonic SALT describes the criteria to assess the individual performance of FEMA legal professionals. SALT provides a tool for FEMA attorneys and their client-partners to assess their performance on a particular matter, particularly during crisis operations. These criteria are also a mean for attorney self-evaluation and reflection, as well as a benchmark for review by supervisors and peers. Building upon the AIC research, the above-mentioned practice models, and the SALT performance standard, a four-day training for the FEMA cadre of lawyers was developed and delivered in May 2011 in Charlottesville, Va. In addition to lectures, briefings and seminars, there were a number of interactive text and video-based teaching case exercises that enabled the lawyers to practice their AIC skills and learn by doing and by peer dialog. Several of the exercises involved role reversals designed to enhance the lawyers' appreciation of the responsibilities of others in the organization. In one exercise, FEMA lawyers played the role of leader and made a difficult judgment call under pressure in an ethically and legally complex crisis. In another, they played a public affairs officer and explained alleged irregularities in a disaster response to inquisitive journalists in the context of an "ambush" interview. Getting the Most From Lawyers The AIC research points to a number of best practices that skilled leaders use to get better service from their lawyers. Note that some of these points really come from good management practices in a broader sense and are not necessarily specific to the leader-lawyer relationship. These are: * Bring the lawyer in early. The top performing lawyers interviewed in the study emphasized that a good understanding of the unfolding event, the key personalities and the emergent dynamics within the team provide the lawyer with a contextualized perspective conducive to good problem-solving. * Include the lawyer in the response phase. Though some leaders prefer to count on forgiveness for potentially controversial actions taken in the most acute phases of a disaster - fearing that lawyers will delay and unnecessarily constrain a rapidly moving disaster response - most of our interviewees found that a properly trained and prepared lawyer can be a major asset in disaster response. Such lawyers can help to find creative ways around obstacles and enable rather than needlessly constrain action. * Help the lawyer understand the big picture and the commander's intent. Leaders and lawyers alike emphasized the importance of leaders taking the time to explain to the lawyers (and other core team members) what they are trying to achieve and why. Such knowledge is essential for promoting good judgment and effective teamwork. * Clarify expectations regarding the lawyer's role and the workflow. Some leaders wish the lawyer to play a broad problem-solving and analytical role as wise counselor; others are primarily interested in the lawyer's technical expertise. In either case, it's important for leaders to be explicit regarding what they desire and expect. Similarly it is essential to be clear about timelines, deadlines and reporting formats, so that both parties are on the same page about what needs to be done and by when. * "Dialog" the advice and provide feedback. Wise leaders engage in an ongoing dialog with their lawyers. For example, (as noted above) if given a "no" from the lawyer, they probe to determine the nature of the obstacle. Is the problem an absolute legal prohibition or a previous agency policy or guideline that could be changed (or an exception authorized) by a phone call to the agency leadership? Similarly they provide feedback to the lawyer about the substantive advice and the way the lawyer delivered it. This feedback gives the lawyer a chance to adapt and better serve the leader and the team as time goes on. Several of our interviewees emphasized that, in extreme cases, lawyers who are not performing well and who have proved unable to make use of constructive feedback from their leaders may need to be replaced. In a pioneering study published in the late 1980s, leading crisis researchers Uriel Rosenthal (who went on to become foreign minister of the Netherlands) and Paul 't Hart pointed out that the roles of decision-maker and expert tended to blur in many of the crisis cases they studied. The AIC research revealed that many FEMA leaders are quite familiar with the law pertaining to their domains (a fact that their lawyers should remember when formulating and communicating advice). FEMA lawyers have many opportunities to exercise leadership in guiding their clients to good choices, guiding and mentoring subordinates in their work, and interacting with peers in the agency and the interagency process. Still on the whole, leaders and lawyers have distinct, vital and interdependent roles to play in disaster management. It is our hope that the best practice models formulated in the Advice in Crisis Project will contribute to better collaboration between leaders and lawyers in disaster management, not only at FEMA but also potentially in other contexts. What is "Salt" and How Do We Apply It? SALT is a set of individual performance criteria linked to the FEMA Office of Chief Counsel (OCC) Mission Statement. OCC employees apply SALT to assess their legal advice, counsel, risk analysis, dispute resolution services and other assignments. Consistent application of SALT supports the OCC's mission accomplishment and reinforces the relationships necessary for our senior leaders and client-partners to feel confident in seeking and using OCC services as an integral part of their business processes. In every action and encounter, and in all the advice we provide, we are: Solution-Oriented - Where others see obstacles, we focus on legally viable solutions and outcomes. We are open to the ideas of others and provide options, constructive alternatives and creative solutions to legal problems. We support continuous learning and collaborative environments that foster new ideas, understanding and better ways to execute FEMA's mission. We help resolve conflicts and eliminate needless barriers that interfere with the agency's efforts to achieve its mission. We assess what is valuable from current and past activity in our practice, document it and share with those who need to know. Articulate - We express our positions and explain law and policy in an organized, well reasoned and persuasive manner, both orally and in writing. We use language that is appropriate to the client-partner, without use of undue "legalese" that might confuse or distort the message. Legally Sufficient - To the extent that operational conditions permit, we apply the aphorism "Salt away the facts, the law will keep." This means we aggressively develop the facts before applying the law to arrive at legal conclusions and options. When we render a legal opinion, in any form, we cite legal authorities (using the Bluebook for all written work) to demonstrate that our opinion substantially satisfies applicable statutory, regulatory and federal executive branch requirements so that our client-partners and those who may later review our opinions understand our reasoning. We are professionally responsible and uphold our duties to our clients, courts and the legal profession. Timely - We deliver advice and counsel on demand, where and when our client-partners need it, and aggressively anticipate issues and obstacles to mission accomplishment. By being proactive, responsive and accessible, we prevent problems. We meet the timelines required to support critical or urgent agency operations, and communicate with our clients to establish appropriately prioritized timelines for routine matters. To the extent that operations permit, we provide our colleagues with sufficient time in which to review, consult and coordinate on complex issues. Eric Stern is co-chairman of the Critical Incident Analysis Group at the University of Virginia and professor of political science/crisis management at the Swedish National Defense College. Gregory Saathoff, MD, is executive director of the Critical Incident Analysis Group and research professor at the University of Virginia School of Medicine. Brad Kieserman is the chief counsel of FEMA. The views expressed in this article are his own and do not necessarily reflect the view of the Federal Emergency Management Agency, the Department of Homeland Security or the United States government.