The New Normal

Do Lawyers Pursue ‘Debating Points’ or Business Solutions?

Posted Jun 20, 2011 3:28 PM CDT
By Patrick J. Lamb

Patrick Lamb

Consider the same point from two different angles.

I am an NFL football fan, da Bears to be specific. I have been following the NFL’s legal battles with interest since they represent the intersection of my vocation and my avocation. The other day, I was reading a story on about a recent negotiating session that said this:

“One person close to the talks went so far as to say, ‘This almost blew up yesterday.’ “

“How close it got to that point is a matter of opinion. The moment may have come shortly after lawyers from both sides were brought back into the process at an undisclosed location in the Washington, D.C., area.

“As tensions rose and anger grew, two sources said NFLPA leader DeMaurice Smith instructed his lawyers to ‘stand down,’

“With lawyers removed from the direct negotiations, the process was said to be getting back on track and to be in a good spot. The scenario last Tuesday is an example of how tenuous the talks can be and how quickly they can be derailed.”

Let me clear, I have no idea what actually transpired, but it doesn’t take an awful lot of imagination to guess. It certainly must have been an extraordinary degree of lawyer-itis for the client to say, “stand down.”

The second angle comes from my own experience writing these New Normal posts. On more than a few occasions, the comments state something to the effect of I (as the author) am an idiot, have no idea what I’m talking about and nothing positive to contribute on any level to humankind. The nicer comments tend to be something like I, the author, am simply wrong and the commenter is right. There only rarely are comments saying that the idea I’ve written about is worth thinking about. Perhaps the absence of such comments is a message itself, but the occasional “attaboy” is enough to keep me going.

I have reached the conclusion that lawyers cannot feel good about themselves unless they win arguments. When no argument exists, lawyers figure out a way to create one. Before I am damned for painting everyone with the same brush, I realize that, like any generalization, there are many exceptions to this rule. But there are enough lawyers that behave in this fashion to qualify it as a rule.

In this regard, I clearly have the classic “good Pat” angel on one shoulder and the “bad Pat” devil on the other. I am a recovering debater, having started debating in high school (at least formally) and continuing in college. Now, I am a paid professional advocate: I actually get paid to argue! There is nothing better than a winning a good argument. But there is a difference between arguing in court and arguing for the sake of arguing, and I suppose I do my fair share of the latter—at least my partners and family will say I do.

Every so often, however, and I hope more often than not, the “good Pat” angel carries the day, and instead of responding to a point I disagree with, I just leave the other person to their point of view and look for an idea in what the author said. After all, will the world be better if they abandon their position and embrace my point of view? Of course not. Will my expressed disagreement be more useful than simply recounting that I’ve had a different experience? Is there really just one right and all else is wrong? Can I simply consider the ideas that are offered and consider them and either embrace them or not without offering my critical input? The idea and resulting thinking are the endgame, not the number of debating points scored.

Of course, on those occasions when I actually hear these questions from the “good Pat” angel, the answers are obvious. But too often, the “bad Pat” devil drowns out the valued input from my better angels. Based on the couple of stories relayed above, I think a lot of lawyers are just like me. In fact, a recent New York Times article suggests that it may be that all people are like this. Here’s the lead-in on the Times article:

“For centuries thinkers have assumed that the uniquely human capacity for reasoning has existed to let people reach beyond mere perception and reflex in the search for truth. Rationality allowed a solitary thinker to blaze a path to philosophical, moral and scientific enlightenment.

“Now some researchers are suggesting that reason evolved for a completely different purpose: to win arguments. Rationality, by this yardstick (and irrationality too, but we’ll get to that) is nothing more or less than a servant of the hard-wired compulsion to triumph in the debating arena.”

So here’s the question: Are all people this way? Or perhaps a more appropriate question here is whether business persons are the same as lawyers in this way? The Times article notwithstanding, I don’t think so. I know of no study or data on this point, but from my experience, it sure seems that businesspeople care less about winning or losing arguments and more about results. Outcomes rule, and debate points don’t count in the business world.

If this thesis is true, then we lawyers, at the least the ones who listen to our bad angels, risk becoming perceived as impediments, like the NFLPA lawyers who were told to “stand down” (how embarrassing!), or worse, simply being viewed as irrelevant and not worth of being at the party.

Patrick Lamb is a founding member of Valorem Law Group, a litigation firm representing business interests. Valorem helps clients solve their business disputes and coping with pressures to reduce legal spend using nontraditional approaches, including use of nonhourly fee structures, coordination with LPOs or contract lawyers, joint-venturing with other firms and implementation of project management tools to handle lawsuits or portfolios of litigation.

Pat is the author of the the recently published book Alternative Fee Arrangements: Value Fees and the Changing Legal Market. He also blogs at In Search Of Perfect Client Service.

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