Every other lawyer, including myself, has been trained since the first day of law school to identify issues and risks. Law school exams reward students on how many problems they spot. Traditionally, law schools have not done an excellent job training how to find solutions that mitigate risk.
Even after graduation, this persists. Partners often asked associates to draft memos setting forth every scenario where the course of action may not work - again without thinking about the solutions. Unfortunately, this risk-averse approach trains lawyers to seek zero risk and not lower risk solutions.
To succeed in the business world, either as a lawyer, an advisor, or in management, you must recognize that businesses operate in the real world where there is risk around every corner. Companies know that there is no such thing as a risk-free decision.
Companies want to understand risk, mitigate and quantify, and then decide if the risk is worth it - and they want their teams and lawyers to act accordingly.
Often, law firms train lawyers to look at issues to focus on what can go wrong and not what could go right if they structured the business in another way. For this reason, these lawyers often miss possible solutions.
It reminds me of a problem facing CARE, a nongovernmental entity I support. For years, CARE supplied Bangladesh farmers with chickens to provide eggs to feed their families, and every year the monsoon season hit and the chickens would not survive.
CARE looked at the problem and thought about how to save the chickens. Finally, someone realized that the problem was not how to protect the chickens but how to have a food supply that survived the rains.
Once they redefined the problem, they had the brilliant idea to substitute ducks for chickens because ducks swim and the rains could not sweep them away.
As lawyers, business people, and advisors, our jobs are not to look at a single path and whether one solution is legal or compliant or too risky - but rather what the real objectives are and how to get as close as possible to them.
If one course of action may bring on too much risk, what are alternative methods of action that can meet the business's objectives with less risk? How do you position yourself to recommend other ways of achieving a goal?
First, you need to understand both the industry and the company.
By appreciating the goals and objectives and even obstacles facing an organization and sector, you can better comprehend the concerns and goals.
Moreover, you can communicate in the same language as others at the table, which establishes your credibility. Investing time in this way will pay off in terms of how your business associates view you. Also, do not communicate in technical jargon. Instead, speak in the language of your business - use clear and concise language. Talking this way gives you an enormous amount of gravitas.
Second, listen to those at the table and ask questions.
You want to know why this is important and what they are trying to accomplish. Understanding the goals and rationale allows you to formulate possible alternative paths better.
Third, challenge yourself to look at the issue differently.
Particularly, think about it from the business client's perspective and what they are genuinely trying to accomplish. Is the problem the chicken or food? Don't get trapped into thinking there is only one way to approach an issue.
Fourth, whenever possible, don't answer with a naked no.
Have other paths for discussion or ways to mitigate risks if there are no alternatives.
Often in discussions exploring the risks of alternatives, the business partner has decided that the answer is no without me having to say it. Moreover, they owned the decision because it was theirs. The business also did not view it as the lawyers being the "no police."
This approach also builds up credibility. So in those rare instances when no is the only answer you can give, the client is more likely to agree because they see you as someone who understands the business and risk.
To be an impactful business partner or counsel, you must be a solutions-oriented trusted advisor. That means that you don't come to the table with a reflexive no. Instead, you do your homework and bring possible alternatives based on a deep understanding of the objectives.
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