The best lawyers on the market - the most effective and the most talented - do not really "practice the law". They deal with solving existing problems and preventing future problems, and the law is just one of their tools. That is what clients want and need. Lawyers diagnose what is happening now or happened in the past, predict what will happen in the future, and develop and implement strategies that affect future events.
The lawyer diagnoses, wondering why certain events occurred. Why is the client more nervous about a small problem than about a big one? Why was the service not completed on time? Why is the other party in the negotiations unable to understand that the proposal is good for both parties?
The lawyer predicts how others will react to events. If the client brings a lawsuit, who will win? How will the other party respond to the negotiation proposal?
The lawyer defines the strategy by developing a plan to solve the problem. Advising the client, he offers several options from which the customer can choose the one that is the most suitable for him. When preparing for negotiations, he will develop a strategy that will allow the other party to agree as far as possible with what his client wants.
Diagnosing what is wrong allows you to reduce and solve the existing problem. However, preventing problems already solves them in advance. Effective lawyers develop the skill of risk estimation - predicting that if something is not done now, the problem will appear in the future, or that something can be done now to reduce the future problem. Some risks are distant. They are so unlikely that the client's effort and money will be wasted if you take care of them now. A careful assessment of the probability of a problem is prognostic thinking. The forecast is a significant part of the lawyer's daily work.
Suppose your client was injured in an accident. You have negotiated for him the terms of the settlement with the person obliged to pay compensation. However, before the court settlement took place, two things happened. First of all, the client's daughter gave birth to a disabled child, whose operation the client decided to finance with the money gained from the negotiated redress. Secondly, the client began to suffer further health problems related to the accident, which may prevent him from working. He thought he should apply for a pension. Part of this pension, however, he would like to have capitalized, because he needs now more money to renovate the house. Your client would like to withdraw from the settlement and negotiate terms that better serve his new situation.
In conversation with the client, you make a diagnosis by learning facts and determining how they affect the client legally, financially and emotionally. To concretize the diagnosis, you predict how people and courts will treat the client in the future. Your forecast may be as follows: „The settlement must be finalized. If we decide to withdraw from it, we probably will not win much in court.”
Do not give up yet. Instead, develop client protection strategies, despite its weak legal position. Together with the client, select the best strategy based on the prediction of the probability of success of each strategy and the solution preferred by the client. An effective strategy can involve transforming the conflict into a comprehensive solution that meets the needs of everyone. The attorney of the opponent can tell his client: "We could fight in court. But we will probably lose, and the costs of legal services, including court costs, will amount to at least EUR 15,000, and may amount even to EUR 30,000, and if you lose, you will have to pay compensation on their terms."
You may experience unexpected events while implementing your chosen strategy. If they are harmful, you will diagnose what is wrong and modify the strategy or adopt a new one. You can offer a renegotiation of the whole settlement and agree to resign, for example, compensation for the loss of future perspectives, provided that the obligor agrees to capitalize the pension. If it works, you will satisfy the client's expectations and reduce the conflict to a minimum.
The lawyer's creative process can be divided into six stages, including diagnosis, prognosis and strategy:
#1. Identifying the problem and defining it
Something is starting to go wrong. Keep an eye on things so that you see the problem early enough and focus on it when you can still do something about it. Search for problems instead of hiding from them. Avoid guessing, do not make unnecessary assumptions and do not trust in the grace of fate.
#2. Preparation: collection and evaluation of information
This stage involves identifying relevant legal regulations and facts in an open manner. The best guided by aggressive curiosity.
#3. Generating options: hypotheses or potential solutions
If you diagnose, try to imagine potential explanations for the events that occurred. If you're forecasting, imagine the potential visions of the future. Potential diagnoses and forecasts are called hypotheses.
If you're planning, imagine potential solutions that would be your plans to influence future incidents.
The more hypotheses or solutions you can generate here, the bigger the range from which you can choose later. At this stage, you only make a list, but you do not verify or evaluate hypotheses or solutions - this will be the next step.
#4. Assessment of options: hypotheses or potential solutions
If you have a diagnosis, test every possible explanation to see if it is accurate, why something is happening. If you're forecasting, test each potential forecast to estimate the likelihood of its occurring. If you're creating a strategy, test each plan for effectiveness: how best to achieve your goals, what is the cost and what is the risk? In all three activities, look for particulars, explanations for facts, evidence and law.
Answer the question, what confirms that the explanation is accurate (if you diagnose) that the forecast is accurate (if you are forecasting), or that the plan will affect events (if you are developing a strategy)? Look for negative evidence that can eliminate these options. What information would indicate that the diagnosis is inaccurate or that the prognosis is unlikely or that the strategy will probably fail?
Ask yourself the following questions:
- If my hypothesis is true, what else must be true (or false)?
- If my strategy works, what facts, evidence or law already existed (or not)?
Choose the most accurate diagnosis, the most likely forecast or the most effective strategy.
If the decision is based on a diagnosis or prognosis, communicate it to anyone who needs to know about it (for example, the client) or use it yourself. If the decision concerns the choice of strategy, you should implement it.
How does it work in practice?
In practice, these six stages can not be so neatly segmented. The thinking process can circle. For example, when you evaluate hypotheses, you may come to the conclusion that you should get additional information. Then you go back to the preparation to find out this information and then you return to the assessment. Along the way, you can generate other potential solutions. And when you're on solutions, you can decide that you need to go back to generating options for a different solution.
The preparation and generation of options often takes place at the same time, as is the assessment of the options and making decisions as well as choosing one of them. Professional work is an uneven mixture of sudden dazzling and Sisyphean efforts.
Do not settle for the first reasonable hypothesis or solution that you come up with. In high-pressure situations, most people seem to grab the first possible idea and push it as far as possible. In the depths of your soul, you know that your client needs something better and you can give him that.
Generating and evaluating options is the biggest challenge - partly because they require opposing skills.
To generate as many possible solutions or hypotheses as possible, get rid of inhibitions and deactivate your skepticism (you activate it again during the evaluation stage). All ideas have disadvantages, but many of them can be repaired later. Ideas that may turn out to be good go hand in hand with ideas that may turn out to be wrong or even stupid. But if you criticize your ideas as soon as they appear, they will stop coming - all, both good and bad - before you understand their potential. Skepticism is valued by legal practice. However, a lawyer who is more adept at criticizing ideas than creating them will be a less effective tool for solving problems. In any profession, criticism is dangerous because it closes the flow of ideas. Do not be ashamed at the stage of generating ideas. Creative thinking ends when, at every step, you are anxiously asking yourself "What will the others think?".
On the other hand, the assessment of options requires features that could weaken the generation of options: rigorous skepticism, a pragmatic sense of realism, the ability to accurately assess risk and deal with the fear that the idea can be really stupid. Turn off these features by generating hypotheses and solutions. Turn them on again after submitting the full range of options and starting to evaluate them. When generating options, you will do best if you think freely and tolerate some intellectual chaos. But during the assessment, become a completely different type of person, watch things with the cold realism of who must take responsibility for success or failure.
The assessment of the optiosn also depends on something that can not be learned in legal studies: how clients and judges make decisions, and how clients, judges, witnesses and opponents of the process and their lawyers will respond to your actions. Assessing options requires good intuition about people and situations - it is necessary to balance the analytical reasoning that you derived from your studies. Analytical reasoning is to some point useful. But it is not more valuable than emotional intelligence, especially the empathic understanding of human nature. Good problem solving concerns the problem as a whole, not only its logical and analytical part.
Use in your work the problem solving process explained here, otherwise your professional work can be reduced to bureaucratic routine - doing one task at a time, thinking about the next task only after completing the previous one, without a wide perspective and without addressing the client's problems in a holistic way. Unless circumstances arise, do not rush to make decisions. Premature evaluation cuts off the stages of creative work that precede it before they bring the right results. The first good idea is usually not the best idea you can come up with. And if you decide too early, you can choose a poor option, which you will not notice until the time has passed.
You may also like:
Teresa H. Amabile, Creativity in Context: Update to the Social Psychology of Creativity 119 (1996).
John S. Dacey & Kathleen H. Lennon, Understanding Creativity: The Interplay of Biological, Psychological, and Social Factors 82-83, 173 (1998).
Stefan Krieger, Richard Neumann, Essential Lawyering Skills, Wolters Kluwer 2015.