Introduction to Lawyering
Lidsky
Fall 2015
Chapter 2: Professionalism
§ 2.1 The Reflective Practitioner of Law
· What really distinguishes a professional from a layperson is a way of thinking that enables the professional to solve problems even when a situation is wrapped in a fog of uncertainty, uniqueness, and conflict
· Reflection in Action: the process through which professionals unravel problems and solve them
· The reflective practitioner is one who can reflect while acting
· Requires the ability to think about what we are doing while we are doing it
§ 2.2 Some Things Effective Lawyers Know
§ 2.2.1 Excellent judgment is the most important thing a lawyer can bring to any situation
· Judgment is knowing what to do and when to say – and what not to and what not to say
· Good judgment is what separates good decision making from bad decision making
· Knowledge of the law is not enough
· Judgment is the ability to know what actions and word are most likely to solve problems, or ideally, prevent them
· Situation Sense: an instinct for reading between the lines and figuring out what’s really going on without being told explicitly – operates the practical, moral, and ethical levels
· Prudent Lawyer: refers to one whose judgment can safely be relied upon
§ 2.2.2 Integrity is your most valuable asset as a lawyer
· Integrity means:
o An honesty so thorough that anyone who knows the lawyer believes and trusts her
o An instinct for what’s right and fair and so reliable that others respect the lawyer’s moral voice
o A strong feeling of responsibility for the matters entrusted to the lawyer’s cares
o An understanding of appropriateness that prevents the lawyer from crossing over into questionable conduct
o The strength to resist pressure to do the wrong thing
o Humility
§ 2.2.3 A lawyer’s job is to find a way for the client to gain control over a situation
· What a client wants from a lawyer is a way to gain control over a situation
· Which requires knowledge of statutes and case law, the ability to plan ahead, a refusal to place yourself at the mercy of event, decisiveness, presence of mind, and problem solving skills
§ 2.2.4 Effective lawyer skills work to achieve specific goals
· Whatever the client wants is the overall or ultimate goal
· There are interim, strategic, and tactical goals
§ 2.2.5 Success in the practice of law depends on efficient work habits
· Efficiency is getting the best results from a unit of effort – a ratio between work and gain
· Time is a resource to be used efficiently
· Time is money
§ 2.2.6 Thorough preparation is essential
· In preparation, resourcefulness counts more than brilliance does
· Most legal problems are solved by diligently learning the details that matter and putting them together into a package that gets results
§ 2.2.7 Everything revolves around facts
· We gather facts from the client and from other sources, then analyze those facts, using them to counsel the client, to negotiate, and to persuade in court
§ 2.2.8 Assumptions can sabotage good lawyering
· When lawyers make assumptions they can hurt their clients
· A lawyer will sometimes properly make a temporary assumption because the truth cannot yet be ascertained and work must proceed in the mean time
· Sometimes a lawyer will balance the risks and make an assumption because the decision involved is small and the cost of learning the truth is too large or because the truth cannot be learned
· As a general rule, don’t make assumptions, learn the truth when you can
· Unconscious Decisions: assumptions you don’t realize you’re making – the most dangerous because you cannot gauge the risk and therefore cannot control it – the only solution is to learn and recognize what you do not know and consciously decide what to do about it
§ 2.2.9 Representing clients in disputes is only part of the job – the rest is transactional
· Two parts to lawyering: the resolution of disputes (often through litigation), the other is transactional (advising and representing clients when there is no dispute)
· Dispute lawyers and transactional lawyers approach legal problems differently
o Dispute lawyers fight to protect clients who are already in a conflict with someone else
o Transactional lawyers plan and draft documents to achieve the client’s goals while minimizing the risk of conflict
· A dispute is considered a zero-sum game: what one side loses, the other side gains – averaging out to zero
· Transactional work is usually not a zero-sum game
§ 2.2.10 A layer must know how and when to function in inquiring mode and persuasion mode
· Persuasion Mode: the thinking and talking that manipulates a situation
o The person tends to act more or less continually on hidden agendas and strategies
o A person in persuasion mode listens so that they can find ammunition to gain or maintain control
o Better for situations when the goal is to control, not to gain insight
o Produces over simplified reasoning, self-serving speech, and a reduced loyalty to truth
o Can be seen as manipulative or controlling
· Inquiring Mode: open-ended curiosity and an interest in exploring things regardless of the consequences – just wants to learn
o Answers will typically be longer and include more information
o Use in counseling and negotiation
· Good lawyers are effective in both persuasion and inquiring mode
§ 2.2.11 Numbers matter
· Lawyers deal with a lot of money
· Money paid out over time is worth less than the same amount paid in one lump sum
· An effective lawyer knows how to work out numbers and how to present and explain numbers to other people
§ 2.2.12 Taxes matter
· Whenever money changes, the transaction might have tax consequences, and you cannot counsel or negotiate without knowing what those consequences are
· You need to know how tax law affects the issues you deal with fre
Preparing: gathering and evaluating information and raw materials
§ This includes discovering relevant law and facts in a fairly open-ended manner aided by an aggressive curiosity
3. Generating a range of options: hypotheses or potential solutions
§ Imagine potential explanations for the events in question, potential prophesies of the future, and plans for influencing events
4. Evaluating options: hypotheses or potential solutions
§ Test each possible explanation, prophesy, or plan
§ Look for negative proof that could eliminate options
5. Deciding
§ Choose the most accurate diagnosis, the most likely prediction, or the most effective strategy.
6. Acting.
§ Just do it™
· The thinking process can be recursive. There is a lot of circling back.
· Preparing and generating options often happen at the same time
o During option generation, think freely and tolerate some intellectual chaos; during evaluating options, view the options with cold realism and responsibility for the outcomes
· Analytical reasoning is useful up to a point, but it’s not more valuable than emotional intelligence
§ 4.3 Think Divergently and Convergently
· Convergent thinking narrows an inquiry to find (converge onto) the single right answer (e.g. evaluating options)
· Divergent thinking entails broadening the inquiry by thinking in several directions (e.g. generating options)
§ 4.4 Avoiding Cognitive Biases
· A cognitive illusion – also called a cognitive bias – is a pattern of thought that causes someone to reason unrealistically
· Availability bias is the tendency to judge the likelihood of an event by the ease with which relevant examples come to mind
o To avoid availability bias, refuse to be seduced by an example and instead investigate the whole picture
· Anchoring bias is a shortcut in thinking there a person doesn’t consider multiple possibilities but quickly and firmly latches on to a single possibility
· Confirmation bias causes you to focus on information that confirms your preconceptions while ignoring information that challenges them
o You can limit confirmation bias by waiting before forming an opinion
· Search satisficing (or satisfaction of search) is the tendency to stop searching for explanations once you’ve found one
· Confidence illusions cause professionals to overestimate their own abilities and make premature decisions
