Attention Attorneys: Please Do Not “Go With Your Gut”
Posted By Joel Gerson, Oct 8, 2012
You are an attorney seated at your desk in your office. A client is sitting directly across from you, patiently awaiting your professional advice. She has just presented you with a difficult decision that the two of you must make together. Every minute that passes by increases your astronomical legal fee. How do you make the best decision for your client? The answer is easy, right? Simply “go with your gut.” This is the sage advice that your support circle of family, mentors, and advisors has always given when you are confronted with a difficult decision. Unfortunately, in the legal profession, this advice is misplaced. On a daily basis, attorneys make difficult decisions regarding how to best represent and counsel their clients. An incompetent decision can have dire emotional, financial, and reputational consequences on both the attorney and the client. To avoid these consequences, it is essential that an attorney uphold his or her professional responsibility as a diligent advocate who consistently strives to make expert decisions.
To become an expert decision-maker, an attorney should resist the temptation to lean on his or her “wealth” of experience and prestigious law degree, and instead actively engage with the client to ensure that he or she is making the best decisions possible for that individual. An expert decision-maker bears the “cognitive burden of analyzing and weighing all pertinent information” provided by a client and recalibrates his or her reasoned approach before making a decision. This approach involves facing the reality of the decision with a deliberate focus on the intricacies and complexities of the case, rather than avoiding such crucial nuances that may be determinative.
Envision two attorneys. One champions a near-flawless record of winning cases for clients and the other loses cases on a regular basis (yet is somehow still in business). Although the former has likely acquired an esteemed reputation in the legal community, both may equally lack the level of critical self-awareness necessary to make an expert decision. The first attorney, resting on his or her laurels, becomes blinded by confidence and fails to invent innovative solutions when approaching a decision. The second attorney, repeatedly deflecting the blame on others when he or she loses a case, fails to investigate his or her own role in the loss. Even though the first attorney regularly wins and the second loses, neither one will become an expert decision-maker. Every decision an attorney makes implicates distinctive challenges, but the expert decision-makers among them learn from both the successes and failures of their past decisions. In order to counsel a client effectively, you must learn to appreciate this often unsettling and demanding approach. Certainly, your client will be better served by a well-reasoned decision than by your premature “go with your gut” advice.
For more insight on how to become an expert decision maker for your client, see Randall Kiser, Obstacles to Becoming an Expert Decision Maker, in Beyond Right and Wrong: The Power of Effective Decision Making for Attorneys and Clients 283-307 (Springer ed., 2010).