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The New Normal

Always Take the ‘Consequentialist’ Or Principled Road; Not the Path of Least Resistance

Posted May 6, 2011 5:13 PM CDT
By Paul Lippe

Paul Lippe

It’s been quite an interesting week to look at examples of lawyers and leadership.

On the one hand, we have President Barack Obama, a lawyer, who successfully prosecuted the “dead or alive” pursuit of Osama Bin Laden.

Once the CIA thought it had located Bin Laden’s hideout, Obama had a key decision between three options for pursuing Bin Laden

• A Predator strike.
• A B-2 strike.
• The Navy SEALs helicopter mission, which was carried out.

A Predator attack or B-2 bombing would have been less-visible as failures if they hadn’t worked. There’s no question that the SEALs strategy was riskier—possible injury or loss of life to SEALs, failure to capture or kill Bin laden, conflict with the Pakistanis, overt failure as a reminder of President Jimmy Carter’s failed mission to rescue the Tehran hostages 31 years ago—leading to possible defeat in 2012, but that is the path the President chose. Why?

Because if it worked (as it did) it would deliver several key benefits:

• Affirmative confirmation of Bin Laden’s death.
• Minimization of collateral civilian damage.
• Intelligence bonanza of captured disks and documents.
• Better impact on “hearts and minds” in the Arab world.
• Better leverage vis-à-vis Pakistan.

According to Ryan Lizza’s profile last week of his foreign policy philosophy in the New Yorker, President Obama is a “consequentialist,” which means he wants to know what will work. So Obama picked the option that would have the most overall benefits, or as is sometimes said, he “played chess instead of checkers.” Or alternately, “he was an adult.”

On the other hand, we have Robert Hayes, the managing partner of King & Spalding, who has been scorned for his decision to “un-accept” the representation of the Speaker of the House in the defense of the Defense of Marriage Act. According to King & Spalding’s spokesman, Hayes’ decision was about process, the failure to properly vet. And now King & Spalding has seen fallout from other clients, like the attorney general of Virginia. But reaction to King & Spalding’s decision didn’t focus on process, but on principle. The folks who thought K&S was wrong to drop the case advance the principle that a lawyer’s representation of a client—however unpopular (or even especially so if unpopular) is sacrosanct, and shouldn’t be changed for the lawyer’s convenience. The folks who thought K&S was right to drop the case think DOMA is an invidious law (I agree on this point) that a lawyer shouldn’t seek to defend. (You could also argue these weren’t really principles, but interests—those who identify most strongly with gay rights took one view, those who identify most strongly with lawyers’ duties take another.)

The problem with principles is that they’re always pretty coherent but rarely reconcilable, and we all learned by the third week in law school how to argue cogently for one principle or another.

So let me state the painfully obvious point that K&S wasn’t driven by adherence to one or another principle, but simply the desire to avoid criticism and not to offend. That’s not a bad impulse, but it’s not a leadership impulse, it’s a politician’s impulse. And it turned out that either way they offended. And so either way K&S loses, because they had neither a clear consequentialist approach nor a principled one. In general, folks respect leaders who adhere to a principle, even if they disagree with it. And they respect something that works, even if it makes them nervous. But vacillation is rarely a winner.

All this brought to mind an excellent profile by Michael Lewis in Vanity Fair of the Irish banking collapse. According to Lewis, Ireland is now basically broke, for two reasons: Its banks lent money against an ever-expanding real estate bubble, even thought sensible minds saw that real estate prices couldn’t go up forever; and when the bubble was set to burst, the politicians agreed to guarantee the banks’ losses, even though there was no particular reason to do so. At both stages most of the Irish elite—politicians, bankers, builders—went along to get along. No one challenged the consensus, no one followed either principles or consequentialism. They sought simply not to offend.

So if you think the world is chugging along fine and it’s not necessary to challenge the status quo, then a King & Spalding /Irish style of leadership is adequate to the task. But if you think there’s risk in the status quo and decisions matter, you may want to cultivate your inner Obama.

Paul Lippe is the founder and CEO of the Legal OnRamp, a Silicon Valley-based initiative founded in cooperation with Cisco Systems to improve legal quality and efficiency through collaboration, automation and process re-engineering. Lippe formerly was an executive at the electronic design automation company Synopsys and later was CEO of Stanford SKOLAR, a medical digital library and e-learning company sponsored by Stanford Medical School.

Editor’s note: The New Normal is an ongoing discussion between Paul Lippe, the CEO of Legal OnRamp, and Patrick Lamb, founding member of Valorem Law Group. Paul and Pat spend a lot of time thinking, writing and speaking about the changes occurring in the delivery of legal services. We hope you will join their discussions.

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