We need your best guess, not your best excuse...

There are some things that lawyers say that are absolutely guaranteed to set me off. I had one of those moments just this week. I was in an important meeting with my co-executives, when a senior partner from a prestigious firm was quite rightly asked the simple question, “What are our chances of winning?” And what was his reply?

“It depends on the judge.”

This set me on edge immediately. It is the granddaddy of legal excuses. You might as well say: “it depends on what the judge had for breakfast.”

If this is true, then why worry about any aspect of preparation and just accept that everything relies on chance? Why pay money for “good” lawyers? What exactly is your value-add here? This is a limited, and limiting, statement. It is the equivalent of saying, when asked if your team will win, “It depends on the referee.” No – it depends on you!

This is one of those self-defeating statements and excuses that I think lawyers use way too casually and without thought about their audience. I don’t use them, I won’t tolerate them from my team, and I don’t accept them from our vendors and partners. Here are some more of them…

“It is difficult to estimate.”

I usually hear this in conversations about budgets and costs. Just think about the statement for a moment. What are you are really saying when you say this?

Really, you are telling me one of two things. Either you don’t understand the work involved, which indicates ignorance. Or you expect the cost to be high and don’t want to say it, which suggests evasion. Neither inspires confidence, and certainly not at $800/hour.

This type of response to budgeting isn’t acceptable in the modern enterprise. I work for a public company that needs to build annual and quarterly plans, manage to those plans, and provide guidance. We need to be accountable for our financial performance, and that accountability must pass to everyone who works with and for us.

“It was caused by the other side.”

This is often an excuse when something bad happens: a legal loss, cost overrun, or other negative surprise. The idea is to push the blame onto the unreasonable or irascible “other”… the other person, the other firm, or whatever.

I understand that bad things happen. Some of them are preventable mistakes, some may be unavoidable. I expect that. What I don’t expect, and won’t tolerate, is this type of knee-jerk deflection of blame. This is the opposite of what I want to see when something goes wrong… It makes thoughtful analysis and learning impossible, because it locks everyone into a blame-focused mindset.

Lawyers should change their mindset … and language

And here are some of the things I think that lawyers don’t say enough. Things like: “That was our mistake.” Or: “Sorry.”

Or, “we are going to win this one, because we have a better, smarter, more capable team.” 

Or even: “that’s a good question, I don’t know the answer to that… but I’ll find out and get back to you right away.”

Yes, you are hired because we have a difficult issue, we do not know the answer, we need help, and we need your judgment and estimation. We need your best guess, not your best excuse. We all need to work to be less defensive and more thoughtful and accountable.

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[[As senior vice president, general counsel, chief compliance counsel, and secretary for NetApp, Matthew Fawcett is responsible for all legal affairs worldwide, including corporate governance and securities law compliance, intellectual property matters, contracts, and mergers and acquisitions. He has overseen the development of NetApp Legal into a global high-performance organization with a unique commitment to innovation and transformation.]

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