How lawyers think determines how we act. So, to be truly effective, the wise general counsel does not seek answers but rather seeks useful mindsets. Here are seven to consider embracing.
No. 1: All news is good news. The judge had denied my client’s motion to dismiss. I called the general counsel and started to explain the bad news. But he interrupted with: "All news is good news, because then you know where you stand."
Wow. All engines, full stop. It was a moment of enlightenment from a client (and not the first).
Years later, I learned about the OODA loop. The acronym describes a process used to train fighter pilots: observe, orient, decide and act. They use the OODA loop when they are in a dog fight with an enemy plane.
My client instinctively understood the principle:
• Observe: The judge denied the motion, which gave us a chance to gauge the judge’s thinking.
• Orient: The ruling closed off an option, but did others remain?
• Decide: Pick another option.
• Act: Do it. Repeat until resolution.
No. 2: Pick the hill you want to die on. This mindset is courtesy of the U.S. Marine Corps. The big idea: Make a stand where it matters, not on a useless cul-de-sac.
Let’s rewind 28 years to a conference room, where a senior partner and I were meeting with a client’s GC and CEO. The topic: three former executives’ age-discrimination lawsuit. My role: potted plant.
"I should have fired them years ago," thundered the apoplectic CEO, who then barked out the orders: "Get PIs to go through their trash, audit their expense reports, and file a counter-claim."
The potted plant started to pipe up about ethical issues but quickly put a lid on it when the GC threw a stern look his way. The GC’s later guidance: The CEO would forget about this impulse in a few days. Message received: The next time you want to yap, recall Confederate Gen. George Pickett’s charge at Gettysburg. It was honorable, noble and courageous, but there was a problem. He only got to do it once.
Effective general counsel create political capital, bank it with the C-level executives and make wise withdrawals.
No. 3: ABR: Always be re-framing. Here is the Buddha’s take: "Pain is inevitable. Suffering is optional." There is power in reframing. Lawyers can’t change the facts, but we can change the story.
Reframing can transform a Department of Labor audit into an opportunity to improve wage-and-hour policies. An executive transition can become a chance to rewrite the for-cause provision in an employment contract. An EEOC charge can awaken leaders to the need for manager training.
GCs with a military background know the importance of conducting after-action reports. These discuss what went right and wrong and why, and what the legal team can do to produce more of the first and less of the second. Adopting an "always be reframing" mindset creates bias towards effective action, realistic optimism and caring candor.
No 4: Fight the fight, not the plan. This mindset is drilled into cadets at West Point. Translation: Never get stuck on the original plan, and always deal with what is occurring now, in real time.
Remember that survival goes not to the fittest but to the most adaptable. An adaptability mindset propels a general counsel ahead of a burgeoning crisis, i.e. "Contrary to our initial beliefs, XYZ product has a defect, and we are working now to fix it." The mindset enables the general counsel to shift strategy when trial testimony comes out differently than expected. And it creates the necessary framework for the general counsel to hire an independent investigator if the CEO faces misconduct allegations. It’s a fluid world. Be prepared to surf the waves.
No 5: A GC is not a conscience for hire. In Fyodor Dostoevsky’s novel "The Brothers Karamazov," one character remarks that a "lawyer is a conscience for hire." That’s not so. When crossroads time comes, when someone must speak truth to power, it is the GC who does so. A general counsel is not a mouthpiece but a voice of reason.
Switching from a great novel to a great movie, let’s talk about "Wall Street." The lawyer for corrupt corporate raider Gordon Gekko explains to Gekko’s acolyte how Gekko uses a shell game to avoid detection by the U.S. Securities and Exchange Commission. The lawyer’s name is Harold Salt. Random choice by the screenwriters? I think not.
In Biblical times, one reason salt was essential to survival was its preservative properties. Without salt — or Salt — as a preservative, food spoils and values rot.
Here is Jesus, speaking to his followers in Matthew 5:13-14: "You are the salt of the earth. But if salt loses its saltiness, how can it be made salty again? It is no longer good for anything, except to be thrown out and trampled underfoot."
To paraphrase the beer commercial, "Stay salty, GCs. Stay salty."
No 6: Generate options, lots of them. General counsel can’t direct C-level executives to take actions. They only can guide them by producing options — the more, the better.
This reminds me of the scenario in the new book by Chip Heath and Dan Heath, "Decisive: How to Make Better Choices in Life and Work." When a company is deciding whether to sue an infringer on its product, the Heaths’ advice reflects the best of GC thinking; this is not an either/or decision. GCs must prompt leaders to ask what else the business could do with the money it would spend on litigation. Would it be better spent elsewhere in strengthening the business or hiring more salespeople to promote the product? These questions lead to others. The result is a wiser and better answer then a simple "yes" or "no."
No. 7: "Am I adding value?" Some mindsets come as questions. A key one: How does this company measure value? Effective general counsel understand that they work daily with those who have built a company and strive to sustain it. Adding value is not a "No, you can’t do XYZ." It’s not even a "Yes, but" mindset. It’s one of "Yes, and."
As Aristotle said, "We are what we repeatedly do." Mindsets progress from aspiration to belief to action. Develop yours, and enjoy the journey.