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Friday, June 29, 2012

The Two-Handed Lawyer - Reprise

Images-1I visited at the Tulane University Law School in 2006-07, the year after Hurricane Katrina.  I recall Dean Larry Ponoroff introducing a program, oh, in about February 2007, noting that it was the first one not to be about Katrina.  In that same spirit, let me be the one of the first to post something not about about a Supreme Court decision handed down yesterday.

The article I mentioned a couple weeks ago, Reflections on the Two-Handed Lawyer:  Thinking versus Action in Business Lawyering, is now available on SSRN.  

 It occurred to me as I was letting it go live that it was a demonstration of the thesis:  there is something fundamentally different about perceiving something (like a problem) and analyzing it versus deciding and actually doing something.  You can think all you want about this paragraph or that, this footnote or that, this abstract or that, but when you click the button, you've acted, and made a commitment, and are obliged to deal with the consequences (if any).

Anyway, it's a consideration of thinking versus doing, and why "thinking like a lawyer" and doing like a decider might be ships passing in the night.  The revised abstract follows the break.

Here is the abstract:

Business clients sometimes refer derogatorily to their “two-handed” lawyers, implicitly distinguishing between the thinking that leads up to a decision and the decision itself. A “two-handed lawyer” is one who can analyze a problem on one hand and on the other hand, but tosses the actual decision back to the client. The observation invokes something fundamental about objective information, subjective judgment making, and the commitment to action. “Thinking like a lawyer” is a prototype of the rationally analytical mindset residing at one end of the mental continuum, and the entrepreneur’s impatience with allocating the risk of failure is a prototype of the commitment to action residing at the opposite end. If leaping is the metaphor for the business decision, then the systematic assimilation of data through rational analysis–the lawyer’s stock in trade – plays a crucial role. The leaper uses that analysis to assess distances and capabilities. But the decision to leap is something quite different. The leaper’s subjective experience of the “aha” moment of a business decision (or any decision, even when made by lawyers) defies scientific reduction. It is really only accessible through the subjective lived experience of the decision-maker. Deciding is more like action than thought.
In his iconic The Reflective Practitioner, the late Donald Schön criticized a mode of thinking he called Technical Rationality. Prototypical legal analysis is an exemplar of Schön’s Technical Rationality, applied methodically and systematically as a means of helping others to understand their circumstances and to optimize their positions in light of risk and uncertainty. Prototypical entrepreneurs and investors, however, are obliged to decide and to act. The mental process that leads to action is deeply subjective, personal, intuitive, and often ad hoc. The most effective business lawyers do not merely analyze and offer “two-handed” alternatives. Instead, they put themselves in the position of the decider and understand what it means to take the leap of a business decision. This article is a reflection on the reasons for lawyerly “two-handedness” and some preliminary thoughts on overcoming it. The affective toolkit for getting beyond rational analysis to action includes attributes such as epistemic humility, epistemic courage, self-awareness, and the willingness to accept responsibility for the consequences of one’s decisions. The practical toolkit will follow in another essay.

Posted by Jeff Lipshaw on June 29, 2012 at 06:10 AM | Permalink


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