When enough is enough

June 6, 2013

It’s not our fault, it’s the way we’re trained. Or at least it’s tempting to see it that way. The typical training process for a lawyer includes the “beasting”; having their documents savaged by a partner and rewritten several times until they are free from blemish, even blemishes invented by the partner for the purpose. There are sound reasons for this approach to training, of course. Not the least of these is that when the hapless trainees graduate to advising on mission-critical matters, it is essential to have acquired the sort of rigorous approach which will save them from making mission-critical mistakes. The obvious downside of this approach to training is that it leads the trained lawyer to a Pavlovian instinct to take a kitchen-sink approach to all matters, irrespective of their importance. Even if this instinct is resisted it still gnaws away in the back of their minds.

I have had numerous conversations with (mostly junior) in-house lawyers about the difficulties they face with workloads, turnaround times and the like. Developing these conversations further, at the heart of their issue is a real quandary in knowing how much time to spend on a matter – or at least in feeling confident in spending less time on the issue than they might if they were back as a trainee. They don’t need me to tell them that a photocopier lease doesn’t merit as much time as a £100m contract (so I don’t tell them that!). But having the courage to give the photocopier lease merely the five minute flick it merits is hard – what if they overlook something, what will their boss / the business think? In these conversations I ended up sharing one or both of a couple of perspectives.

The first perspective is that law is more like chess than it is like maths. In maths there is only one right answer, and if your answer isn’t that answer, your answer isn’t nearly right, it’s wrong. In chess there is no such single truth, the requirement is to be more right than your opponent – “sufficiently right”. In law, “sufficiently right” means being as right as the situation demands. Most business decisions are not made as a result of analysing every piece of information to the point where they are totally right. Instead they are made with only a partial knowledge of the facts. Businessmen guess, as if they Didn’t guess they’d never act in time. Businessmen likewise expect their lawyers to form judgments on less than a complete view of the facts, and to give that judgment without rehearsing each of the nuances, factors and assumptions which underpin it. They just expect them to be close enough and then to move on to the next thing.

The other perspective I share is the observation that most organisations in the UK don’t have in-house lawyers, and most of the time they don’t go to outside lawyers either. Whisper this e’er so quiet lest the idea catches on, but therefore most of the entities in the UK conduct most of their activities without legal advice, and yet the sun still rises in the East each morning. So an in-house lawyer spending half an hour with an average contract will spot the main issues it contains and thereby place their employer in a better position than these heretical organisations that do not use lawyers. Taking this approach, a sort of “up from nil” (what extra value can I give my employer by spending 30 minutes on this?) rather than “down from 100” (what dare I leave out?) approach, gives the new in-house lawyer a more accommodating reference point for their work, and one closer to the way their business colleagues work. Most businesses would rather have their lawyers do ten things a day sufficiently right instead of five things completely right.

A little while back I was impressed to listen to a savvy, well-known and well-respected GC explain that he was once asked to look after a construction project. The file was dauntingly thick. and concerned a project visible from his office window. Reasoning that if work was taking place there was no problem requiring his contribution, he decided not to open the threatening file unless he saw work at a standstill. Work never stopped and any issues were resolved on site. The file remained unopened and our GC focused his time on other issues where his attention would make a difference. That might be an extreme example of the approach I suggest, but it very probably echoed the CEO’s approach to the project and it does bear out the point that life can go on without lawyers.

All in-house lawyers will, of course, be deeply thorough when the occasion demands; what makes a good one is giving less critical matters less critical attention in order to free up their time and energy for those occasions. They know when enough is enough. And in the hope that I’ve put my view across, I’ll deem that enough from me.

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