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10 Phrases In-House Lawyers Hear That Portend Disaster

December 19, 2012

• "That's not our problem; it's the other side's problem"
• "Let them worry about that."

When people start saying things like that, ask whether they're doing so because the statements are true or because the underlying issue involves unpleasant facts that it's easier not to acknowledge. Recall Ben Franklin's wise advice: "Half a truth is often a great lie."

Litigators and deal makers hear phrases like these. Events are percolating along, and someone on the team asks, "Should we be doing this?" or "Does the other party know about this issue?" When the question answers itself, it's time for the lawyer to ask whether truth or convenience is driving the client's position. Convenience never trumps ethics.

5. "Everybody else is doing it."

Here is just some of what I have heard in 31 years of practicing law:

• "Companies in my industry don't pay overtime, so why should I?"
• "The guy with the company down the road fired the union organizer among the employees, and nothing happened to him."
• "Don't tell me what I can't do; I'm paying you for telling me what I can do."

Those who win the race to the bottom still lose. Stephen Cope, in his book "The Great Work of Your Life: A Guide for the Journey to Your True Calling" explains that "The Bhagavad Gita" teaches that it is better to follow one's true dharma and fail than to follow others' false dharma and succeed monetarily. And, let's face it: The truth comes out in the end.

6. "We can't change course now. We have too much invested."

This is false-dichotomy territory. How can a lawyer break through this either/or mindset? Mary C. Gentile offers advice in her book, "Giving Voice to Values: How to Speak Your Mind When You Know What's Right." She suggests changing the frame. Reject "We did not get what we wanted." Embrace "What did we learn from this experience?"

Failing to do so conjures up, for me, lines from W. H. Auden's "The Age of Anxiety": "We would rather be ruined than changed/We would rather die in our dread/than climb the cross of the moment/and let our illusions die." Change course. It's the smart play.

7. Another pair of eyes on the project? You're joking, right? What a waste."

True, projects are overlawyered and overanalyzed. But active resistance to advice is a telling sign that something maybe seriously amiss. Take it as a warning to press all the more for that other set of eyes.

An ostrich-like attitude of self-delusion can lead to disaster. Listen to Proverbs 1:30-31: "They would none of my counsel: they despised all my reproof. Therefore shall they eat the fruit of their own way, and be filled with their own devices."

8. "We've always thought about it this way, and we always will."

I can do no better than Justice Felix Frankfurter, who decided a legal issue one way in 1943 and then completely reversed course in 1949. He gave this explanation in his opinion in Henslee v. Union Planters Bank: "Wisdom too often never comes, and so one ought not to reject it merely because it comes late." Genius.

9. "It is what it is."

Huh? This phrase now is used principally by those who want to sound insightful and wise but who are just dazed and confused. Only Buddhist monks are allowed to talk like Buddhist monks.

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