By Michael Hanks, Esq.
Despite the popular conception, attorneys spend most of their days solving problems. Although each problem presented has one or more “legal dimensions” to it, the process of problem solving remains fundamentally the same, regardless of its classification.
An attorney who can’t identify the real problems has no chance of solving them for his or her client. Further, an attorney who doesn’t have control of his or her client is likewise powerless to bring about a solution, even of a properly diagnosed problem. Accordingly, it is critical at every stage of the case that your legal representative apply proper procedures and techniques in the management of your legal problem. Herewith are some “tools of the trade” I have learned in 25 years of law practice, which I think are of universal application. I hope that you can apply these techniques to the real life problems you face, whether legal in nature or of some other stripe or flavor.
- REALIZE THAT THE TOUGHER THE PROBLEM, THE LESS QUALIFIED YOU ARE TO HANDLE IT ON YOUR OWN.
People, no matter how well intended or smart, tend to be self centered and to view the world as they are, not necessarily how it is. Moreover, it is normal human nature to try to minimize the scope or difficulty of a problem in hopes that doing so will somehow in fact make it less difficult. They also have a tendency to deny responsibility if at all possible, even if they are in fact solely or exclusively responsible for the mess they are in. People are also reluctant, without proper guidance, to undertake the sometimes difficult job of applying an actual solution to the matter, in hopes that perhaps, and miraculously, half measures will work just as well. Finally, even with a realistic attitude and the best of intentions, you can’t apply a solution unless you are aware of its existence.For all of the above reasons, most difficult problems, whatever the type, need some kind of outside assistance to solve. Legal problems, obviously, require someone trained in the law. Medical problems need a doctor. Emotional problems need a psychologist or psychiatrist. There is nothing profound in this concept, but you would be surprised how often people fail to recognize this rather fundamental concept. If you find yourself dealing with an issue “over your head,” get help from a qualified advisor and follow his or her advice.
- IDENTIFY THE REAL PROBLEM.
It is also common in the practice of law to meet with clients who have a problem, only they have completely misdiagnosed what it is. This stems from many different causes, but fundamental to most of them is lack of objectivity. It is human nature to want your life to be smooth and trouble free, and when problems arise, we filter them through the screen of self interest, and often times are able to convince ourselves that the problem is smaller or less complex than it really is. In some circumstances, the reverse is true: We tend to overestimate the scope of the potential problem (just ask any man right before a visit to the doctor for a checkup. We all become convinced we’re going to die, and that the doctor is bound to find some life threatening lump or bump.)In a legal context, problem identification is perhaps the most critical part of the counseling function. Legal problems are, by their nature, messy. They usually contain some form of skullduggery or sharp practice. They can (and usually do) involve differences of opinion regarding the relevant facts (eg., Did the driver run the red light or not? Was the contract breached or not?) In these situations, part of the problem identification function very well might be that we cannot, with precision, fully identify the problem, at least until some further information is obtainedIt is the role of the attorney to assist the client in identifying the real problem, and move beyond the false notions he or she has built up over time as defense mechanisms or as the result of emotion or anger. Not until that is done can real progress towards a solution begin. Any attorney who is unable to achieve this basic skill will not last long in the business, nor should he.
- TAKE THE TIME TO BRAINSTORM THE MATTER.
Another common misconception is that for each problem, there is one and only one solution. Untrue. Seldom have I seen such a situation. Unfortunately, life is neither that simple nor that organized. There are as many ways to catch a mouse as human ingenuity can imagine. The only difference is that some techniques work better than others in the real world.I am a true believer of the value of brainstorming as an analytical approach to problem solving. Brainstorming, as the term is used here, is nothing more than an open ended discussion among persons having a common interest in a matter, and who are free to consider any and all possibilities. Moreover, an effective brainstorming session should make nothing off limits or out of bounds when considering solutions. No one should be afraid to suggest an approach for fear of being made to feel foolish. After all, how can any potential solution be truly considered until it is discussed? Each person should be given the freedom and time to completely “talk through” a conceptual approach until its wisdom or folly becomes apparent. During a brainstorming session, interruptions should be held to an absolute minimum, and response points should be noted on a piece of paper for later discussion. I can’t tell you how many times I have seen potentially fruitful avenues of discussion cut short and disregarded because someone else interrupted the discussion prematurely, thereby directing the discussion down a different (and oftentimes less productive route).
- SET ASIDE SUFFICIENT TIME TO FULLY FLESH OUT THE ISSUES AND DISCUSS SOLUTIONS.
Another common mistake I see with clients is the idea that all problems should be capable of a solution within one hour. This may be the result of our television culture, wherein even the most difficult crime is solved within a one hour time span, with enough time left for credits and commercials! In point of fact, there is no limit to the length of time it can take to fully analyze a problem and come up with a solution. Whatever it takes should be allotted to the matter.
- BE WILLING TO CONSIDER ALL POTENTIAL SOLUTIONS, EVEN THE ODDBALL OR DIFFICULT ONES.
Life works in strange ways. There is no natural (or even unnatural) law that says all solutions are either obvious or easy. That solution is best which solves most of the problem. The goal of a good attorney representing a client in most legal matters should be to extricate the client from the mess at the least possible cost, and in a matter that leaves the least amount of “residue.” For instance, it may seem to the client that the obvious solution to a legal dispute is to file a lawsuit and place the matter before the courts, and let the judge (or jury) decide. However, such a move is almost always the last choice due to the expense, disruption and unpredictability of the outcome. The best solution may be to pursue an out of court settlement which leaves both sides equally unhappy.
- REALIZE THAT NO SOLUTION WILL BE PERFECT.
However, one will be more perfect than all the others. The challenge is to identify this “ideal” solution and implement it. Refusing to consider solutions that have flaws is folly, since such an approach will almost always result in frustration, as solution after solution is discarded for this or that perceived deficiency. It is somewhat like looking for the perfect mate: You may eventually find him or her, but by that time you will almost certainly be too old to know what to do. Life is a series of compromises. This is no less true in problem solving.
- ONCE THE BEST SOLUTION IS DETERMINED, PURSUE IT WITH A FOCUSED DETERMINATION.
Once the necessary analytical process has been accomplished, it is time to put the solution into practice. The time for second guessing and doubt is over, since you will have done your best at considering all options, rejecting those that are unworkable or too expensive. You must now be committed 100% to implementing the strategy chosen. To vacillate at this stage is almost always a mistake. Not only such doubt nullify all your prior hard work, but it also makes it less likely that your well thought out solution will in fact work.The most valuable commodity on earth is good advice (just ask Bill Gates the value to him of whoever suggested that he might find it interesting to fiddle around with computers). It can make us wealthy, ease our mind, keep us safe, and help us avoid accidents. The role of a good lawyer in problem solving is simply the practical application of common sense to a real life problem through an organized system of analysis. Take advantage of the resources available to you in the legal profession, and stop worrying so much. Life is too short.
Michael Hanks is an attorney with offices at 11211 Gold Country Boulevard, Suite 107 in Gold River. His practice is limited to business and commercial law, estate planning and real estate. He has been fighting the good fight for his clients for over 25 years. He can be reached at (916) 635-0302. You can view his website at Hankslaw.com. Comments or questions regarding this article or any other topic of concern, as well as suggestions for future articles, are always welcome.