Friday, November 22, 2019

Give it your best shot, rather than fearing loss.

by Marc Evan Aupiais

Among the worst things many lawyers learn while still interns is that all that matters is winning, or achieving certain objectives within a very limited time period. It sets them up for both massive stress and for overriding their client's wishes, if they cannot escape this dangerous sort of thinking.

An intern is told to write three summonses in a single day. They obey, but the summonses are substandard, and every time they do so, remain substandard, because they have been taught to work for an object instead of to work as best they can. Give an intern instead one summons to write over three days, and the next he will write in two, and the next in a few hours, and he soon surpasses the intern who consistently writes three in a day, not the least in an ability to write without serious error. Speed is something which should not be there out of the hat, it should come with experience and rightly earned confidence.

I don't tell myself I will get this, this and this done today. If I do, I know I am in danger of doing shoddy work in all. Instead, I tell myself, I am setting aside this much time today, for this, this much time for this other thing, and this much time for that. The result is that I do better work, and achieve my goal. As a sole practitioner, I also find that I am far better motivated to get my work done timeously, by setting aside time for it, than by setting set specific goals. Goals can be useful and deadlines do need to be met, but if the focus is on the goal, work quality is likely to suffer.

What governs an attorney, whether in the office or at court, should be procedural, not substantive. At court, I will do all I am able to do to protect my client's rights, both in offence and defence. But, should I instead decide that I shall win, I add enough stress to my job to hinder myself somewhat, which is why I don't focus on that. Such an approach, of win at all costs, also makes us fearful of attempting some matter well within our wheelhouse but which may be difficult, or which may see us lose.

Good sportsmanship, we are told, is always giving your all on the field, while respecting the rules and your opponents. Be down a few points and if your only goal is to win, then you have lost the morale for it. But, if your goal is to simply always give your best, you might well come back from your early losses and still have victory.

A lawyer wanting to win may make all the strategic decisions for their client, and be surprised when sued for negligence by a disappointed patron.

A lawyer whose concern is procedure, not substance i.e. one which focuses on doing their job the best they are able, rather than on winning, however, has the added advantage of being a creature of instruction. The decision to take a risk for a client can send a man to the madhouse from stress. However, informing your client of all the risks of various decisions but letting them decide not only lengthens a lawyer's life due to a reduction in stress but also gives their client ownership of the decision.

Having a win-lose mindset instantly puts the lawyer's ego into a matter. With each case he feels he is fighting for his own life and reputation. But, his client might not have told him everything.

Having instead a procedural mindset, of: whatever I am to do today, I will give it my best shot, regardless of whether I succeed or not, however, makes a legal career bearable and puts the client back in the driver's seat. The lawyer is operating without ego, because his pride is not tied in to victory, but into giving the best possible service to his client, in the circumstances.

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