Friday, June 29, 2012

How Ignite Ignited Me: The Two-Handed Lawyer and Thinking Versus Doing

Posted by Jeff Lipshaw


Bill and I rarely consult about our posts, so I get as pleasantly surprised as other readers when I refresh my RSS feed.  I just played the Ignite presentation Bill highlighted below.  He's right:  it's fun.  Watch it yourself.

I'm pretty sure Bill meant to demonstrate the engaging form of the presentation.  It worked.  I listened to the substance of Michael Bossone's entire pitch about lawyers and technology.

Coincidence isn't a fact; it's a perception, but Michael's focusing on doing, on clicking, on pushing the button, seemed designed just for me, given that I just posted an article on "lawyerly" thinking versus "actorly" doing on SSRN, and posted it about it on PrawfsBlawg.  Here's a reprise of the reprise from the other post:

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 [the article] 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  abstract follows the break.

Perhaps the article is a little theoretical for some practical tastes (it's certainly less energetic than the Bossone presentation), but I've interspersed what I think are some pretty good stories, including one of my early professional come-uppences - the humility (or humiliation!) in learning that I didn't know as much as I thought I did.

The fact I can say what I just said proves Bossone's point.

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.

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