Thinking Like a Lawyer.
What does that mean?
When you first practice law, thinking like a lawyer often manifests itself in over analyzing many things and seeing risk in everything.
In the case of legal departments, they often are saddled with two unflattering reputations:
1) The Department of No.
2) The Department of Slow.
As Casey Flaherty notes,
"Attempting to eliminate risk, or minimize risk in a way that ignores net business impact, is one way the legal function becomes labeled the Department of No and the Department of Slow, with the primary complaint among our stakeholders being that in-house lawyers “don’t understand my business.”
Lawyers often want time to consider risks and reconsider risks. They want time to put together a thorough memo or analysis of the legal issues at hand.
Businesses do not have that time to give. Period. They also do not want a long memo or thorough written analysis of the legal issues and their respective associated risks.
Businesses want actionable advice and analysis.
The problem stems, in part, from an inherent part of the law school experience.
Law schools do a great job of teaching law students that understanding and evaluating risk is a part of practicing law.
What law schools don't do a great job of is providing context for how to evaluate risk. A lawyer's go-to response, when asked by a businessperson about something, is often a vague, meaningless statement along the lines of that could be a risky thing to do.
When I began working as a lawyer in-house, the most immediate challenge I faced was holistically evaluating issues and not simply through a legal lens. Not every risk carried the same weight, nor was every risk the same risk in every situation. What I learned over time was that the driver of assessing risks was context.
The question I needed to answer for myself was how to adjust this risk assessment dynamically.
The answer was in part a matter of listening to the business people about what they were trying to achieve and why and in part viewing risk through multiple lenses at the same time – business and legal. It also was a matter of understanding that my job as in-house counsel was to be a business partner to the company.
Businesses do not hire me to provide legal answers to legal questions. Companies hire me to be a business partner. All questions need business answers. It depends is not a satisfactory answer, but often neither is a simple yes or no. What is being asked for is a path forward that satisfies both pertinent business and legal concerns.
Thinking like a lawyer is not a matter of risk aversion at all costs. It does not mean answering every question with the phrase "it depends." Thinking like a lawyer requires thinking things through a variety of perspectives and providing actionable insights and advice.