The Exceptional Lawyer

February 13, 2009

The Best Don’t Fake It

Filed under: Uncategorized — joshuahornick @ 5:22 pm

The common practice of “faking it” in legal practice stinks.  We should outgrow it.  Ultimately it hurts everyone involved.  The courage and humility needed to drop “faking it” is what distinguishes some of the best attorneys.

Faking it shows up all the time in legal practice.  George Kaufman, in his lovely book, The Lawyer’s Guide to Balancing Life & Work, provides a classic example from his days as an associate at Rosenman.  George and his fellow junior associate Joshua were called into the partner’s office to discuss a new assignment.  The partner asked Joshua to draft a debenture for the new deal by the end of the next day.  “No problem,” says Dan.  As soon as they leave the office, Dan pulls George aside to ask him, “What’s a debenture?”

Vinnie, in the great movie, My Cousin Vinnie, is glorified by how he fakes it and ultimately pulls it off.  There’s a lot of drama and laughs in his almost getting his cousin in a lot of trouble because he doesn’t really know what he’s doing.

Getting subtler, it is commonplace for a partner to pretend he or she understands something that he doesn’t so that he or she will not look stupid in front of the client.  After the client is gone, the partner looks up whatever wasn’t understood and no serious harm is done.

Or a lawyer is preparing the documents for a deal.  The lawyer doesn’t fully understand the deal.  He or she simply trusts that the business part of the deal is the client’s business, prepares the documents, and lets the client fill in the blanks.

Faking it has two problems, both of them serious.  The first is the risk that you won’t figure out what to do in time and provide your client with incompetence.  I believe that this happens in a relatively small percentage of instances; otherwise faking it would almost never be worth the risk.  Still, creating that risk is unbecoming of an attorney with a fiduciary responsibility.

The second and bigger of the two problems is the lost opportunity.  If the partner knows that Dan doesn’t know what a debenture is, the partner may take a closer look at what Dan prepares, Dan may get useful pointers enabling him to draft a better debenture or waste less time reinventing the wheel, the partner will know that Dan can be trusted not to fake it when the stakes are higher, and the client will only benefit in terms of cost and quality.  Opportunities along these lines are lost every time someone fakes it.

(Note: There may be instances, in the presence of opposing parties, when some version of faking it is expeditious to maintain the appropriate façade for your client’s position.  Even these situations, though, deserve to be questioned.)

The most important lost opportunity, in some respects, has to do with fear.  Faking it is almost always a fear reaction.  A lawyer is afraid that by admitting ignorance, admitting weakness, he or she will be punished, fired or lose the respect of colleagues or clients.  As a general matter, being dictated by fear is a lousy way to live.  People that put up a façade of happy fearlessness carry a lot of misery.  They are living a lie and it takes a toll in every area of their lives.  The presence of faking it indicates the presence of a great opportunity to get over your fears.

The truth is that a lawyer who conquers that fear and never fakes it is happier, a better lawyer and a much more powerful person.  (Please note:  Not faking it is not a licensing for whining.  That’s just as bad.)  Look at yourself and the other lawyers you know, people senior to you, junior to you, and on the same level.  See if you can identify those that are honest about their gaps.  How do they stand up beside the rest?

I encourage you to experiment with this.  Notice when you fake it.  Then, try not faking it in situations where the stakes are low.  See how you feel.  See the reaction you get.  You may ultimately give up faking it altogether.  It will likely make you a more exceptional lawyer.


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