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.