Do Lawyers Behave Rationally?

Of course they do. Just ask them.

They—at least those in the US—will also tend to define “rational” as based on linear, deductive thinking. Not unlike the law.

Dispute resolution, from this perspective, is largely a zero sum battle. That “win-win” stuff may work in business, but not when the chips are down in a court of law. Right?

Well, not so fast. Jim Peterson is a lawyer who handled European litigation for one of the global accounting firms; an American in Paris, he has a lot of perspective. And he shared with me this story:

I picked up a valuable lesson early in my expatriate experience in Europe – where the importance of personal contacts and relationship-building can elude the grasp of typically impatient Americans.

When I first arrived in Paris, I inherited a file on a long-standing claim by a French company against my American client. The suit was pending in Germany, where it had been largely dormant for five years, partly because of the ponderous system for large commercial litigation but more because local German counsel felt they were handling an annuity matter that would fund their retirements.

With this lack of urgency, the parties had had only desultory contacts about settlement, and the case management budget steadily hemorrhaged legal fees.

My first task was to contact my opposite in-house number about some trivial interim topic. From a brief telephone call that barely got beyond the “new guy in town” introductions, it was clear that for the time being the two companies had nothing to talk about.

Notwithstanding, as a new resident I triggered a follow-up call, to invite my French adversary to lunch. The explicit condition was that we were not to transact business or mention the litigation.

In summary, a good time was had, over an excellent meal.

More years passed, with no activity other than the ongoing drain of fees, until suddenly the settlement cork was pulled. Led by the Germans, there was real progress but an eventual make-or-break impasse. The local clients and outside counsel had gone as far as they could.

We inside counsel re-convened in France. Drawing on the modest but real stock of personal good will built up over lunch those years before – in truth not much more than the prosaic “How’s the family”– we were able to negotiate successfully and bring the matter to a mutually satisfactory close.

Could it have happened other ways? Perhaps. Had a long-term friendship been established? Clearly not. But I would never underestimate the value of the pay-off, from two hours invested in the sole achievement of a fine French meal and a measure of camaraderie.

Did Jim pursue a “rational” approach? If by “rational” you mean did it make sense, did it achieve outcomes, quickly and inexpensively? Absolutely.  In fact, the "French lunch strategy" beat the crap out of the usual adversarial system.

But if by “rational” you mean according to cognitive rules, case law and the procedures of the court—no way Jose. The traditional “rational” approach would have resulted in, as Jim said, only in an annuity for many lawyers.

Sometimes it makes sense—a ton of sense—to completely avoid the “rational” set of logical processes and systems.

Sometimes it’s rational to just be human. (Not to mention more pleasant). Yes, for lawyers too. Even American ones. In fact, for all service providers. (And it probably even works with California wines).

(Jim used to write a column for the International Herald Tribume. It continues at Re:Balance, where his current post compares Lehman Brothers’ fall with that of Arthur Andersen).

2 replies
  1. Jill
    Jill says:

    interesting, i think perhaps there is also a real divide in rationality between litigation based and corporate lawyers – corporate deals etc are best for all parties structured as "win-win" since everyone is looking at the same end goal for the most part – and the courts of course are most often "lose-win".

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