If you had to describe the basic function of an attorney, it would be to accurately investigate and frame the facts we are presented with, and then analyze those facts using logic and the law. We’re trained for that analysis, we’re very good at it, and we’re generally paid well for our skills. As managers of law firms, though, we desperately need to stop relying solely on facts.
Facts Matter…
Let me explain. Everything we do in our function as attorneys is premised on our ability to gather an accurate picture of the situation on the ground. Trial lawyers spend most of their careers engaging in discovery. Transactional attorneys do hours upon hours of due diligence to advise on whether a deal makes sense or not. When we go into the courtroom or belly up to the negotiation table, we and all the other attorneys put on our lawyer hats and agree that, in this room, leave your emotions at the door. It’s the facts that matter.
You can’t become a lawyer if you’re not prepared to embrace this paradigm. The LSAT screens out anyone who can’t engage in logical reasoning based on fact patterns. Law school drilled us all in writing using some variation of the IRAC formula — Issue, Rule, Analysis, Conclusion. Every legal brief begins with a recitation of the facts that compel its legal conclusion. Contracts routinely contain recitals at the beginning explaining the background from which the deal contained within arises.
If there’s a recurring theme to this column, though, it’s that the skills that make us excellent lawyers can make us terrible businesspeople.
…Until They Don’t
The facts-first analysis approach breaks down when we attempt to apply it to the human problems that arise in law firm management. On the issues that matter most, facts don’t change minds.
It’s increasingly well documented that humans have a tendency to get locked into their most closely held beliefs, and react poorly when presented with evidence tending to disprove those beliefs. We’re designed to avoid the cognitive dissonance that such evidence creates. Most of the time, we avoid the cognitive dissonance not by changing our minds, but by doubling down on our initial opinion.
There’s a whole host of inefficient, problematic behaviors that get grouped together under the concept of “confirmation bias.” At its simplest, humans tend to be biased in favor of evidence that confirms their preexisting beliefs. For a (hopefully) innocuous example, if you loathed the New England Patriots heading into Sunday’s Super Bowl, you’re more likely to read an online article called “Why The Pats Secretly Stink” than one titled “15 Things The Patriots Do Better Than Any Other Team.” If you were a die-hard Patriots fan, the opposite would probably be true. We find an inherent pleasure in being told that we’re right, and we seek out and reward those who do that for us.
Rational Arguments Can Make Everything Worse
There’s also another, more sinister side to confirmation bias. Beyond just seeking out affirmations that we’re correct, humans are wired to actively discount evidence that contradicts the beliefs we hold most dear. Most of us will happily dismiss contradicting evidence as flawed, biased, or simply wrong before we admit that it may have a point and we may need to change our minds. The more essential that belief is to our concept of ourselves, the more desperately we cling to it, and the harder we fight against evidence that cuts against us.
Oftentimes, presenting someone with facts that contradict their long-held, sincere, but objectively wrong belief only ends up reinforcing their original position. We’re motivated to find flaws that allow us to discount the evidence against us, and once we’ve successfully (in our minds) rebutted those arguments, we’ve convinced ourselves even further that our original position was correct all along.
The human mind tells itself it seeks truth, but it more often seeks happiness and comfort. Lawyers train themselves to avoid those cognitive traps, to rely on facts and attempt to be objective about our analysis. We’re typically aided by our emotional removal from the problems we’re analyzing. In private practice, we’re often not deeply emotionally invested in our clients being right or wrong. We want to get them a good result, but it won’t shake us to our core if our analysis leads us to conclusions our clients won’t like.
We don’t have the privilege of that same objectivity removal when it comes to dealing with our own personal interests, which is what firm management is all about. Firm managers who try to treat their attorneys and staff as just another set of clients, to be presented with and persuaded by facts and analytics, are setting themselves up for failure.
Your People Are Human, So Treat Them Like It
I’ve spoken with firm managers from across the spectrum, from boutiques to international megaliths, and the same stories repeat themselves. For example, a well-meaning management team approaches a partner to explain that they’re not going to receive the compensation they’re asking for. Management spends time laying out the revenues, expenses, profitability, and other objective aspects of that partner’s practice, and presents what it sees as an airtight case to support their decision. The partner in question dismisses this analysis out of hand, claims management is forgetting or inappropriately discounting all sorts of contributions the partner makes, compares themselves favorably to other partners who make more money, and digs in on their demands. Any human will struggle to see past their own self-interest, and most firms do a terrible job of understanding that fact and trying to cross the emotional gap. The two sides end up in a stalemate, neither convincing the other, until either someone cracks or the partner departs. Either result leaves the firm worse off than it was.
All is not lost. There are tried and true ways we can mitigate confirmation bias. It starts with accepting that when we make decisions as firm managers that impact our people personally and professionally, we need to spend more time appealing to emotion than we do appealing to reason. We need to find ways to present evidence that people don’t want to hear in a way that doesn’t lead them to conclude we think they’re wrong, stupid, and worthless to have ever disagreed with us. One powerful tool is assuring people that their position was entirely understandable and correct given what they knew, but that this new information should change their mind. We give them an out. We let them take comfort in the idea that they were already right, but that by accepting your arguments they become more right.
On a more personal level, we can look within ourselves and aspire to intellectual humility, the willingness to accept that we might be wrong about things that mean a lot to us, and to make changes if that is the case. Intellectual humility isn’t about being right, but about becoming incrementally less wrong.
Let’s get out of our comfort zone, drop the facts for a minute, and take care of our people’s emotional needs. If we lead our teams by the heart, their heads will follow.
James Goodnow
James Goodnow is an attorney, commentator, and Above the Law columnist. He is a graduate of Harvard Law School and is the managing partner of an NLJ 250 law firm. He is the co-author of Motivating Millennials, which hit number one on Amazon in the business management category. As a practitioner, he and his colleagues created a tech-based plaintiffs’ practice and business model. You can connect with James on Twitter (@JamesGoodnow) or by emailing him at James@JamesGoodnow.com.
Why Reason Isn’t Enough curated from Above the Law
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