King of Wishful Thinking

“How much are we, as lawyers, limited by what we know and understand about law and legal systems, which prevents us from experiencing what is and what could be possible, for our clients?”

The above thought is from notes I took during Collaborative Divorce training by my mentor and fellow legal visionary, Pauline Tesler, who was brought to South Africa by the Centre for Integrative Law in April 2013. You can read more about her trip and trainings here.

This thought, around the limitations of lawyer’s thinking has been wandering around my mind for the last few weeks as I try to make better sense of what exactly this means. I share Pauline Tesler’s view that lawyers, unknowingly, and as a result of their specialised training, are often limited in their ability to solve problems in the most client-centric way.

I think that one of the major causes of this is that lawyers are trained to focus – to sift through masses of information and choose the critical issue on which the case will turn. This is a significant skill – the ability to sniff out the most pertinent issue when wading through a morass of unnecessary paperwork and extraneous detail. But as I see it, there are two major downsides to this ability:

1. Not seeing the whole picture
2. Not seeing non-legal solutions

Without our being aware of it, we lawyers have been trained so consistently in convergent thinking that this way of thinking has become an unquestioned habit. Wikipedia gives this explanation:

Convergent thinking is the type of thinking that focuses on coming up with the single, well-established answer to a problem.^[1] It is oriented toward deriving the single best, or most often correct answer to a question. Convergent thinking emphasizes speed, accuracy, and logic and focuses on recognizing the familiar, reapplying techniques, and accumulating stored information.^[1] It is most effective in situations where an answer readily exists and simply needs to be either recalled or worked out through decision making strategies.^[1] A critical aspect of convergent thinking is that it leads to a single best answer, leaving no room for ambiguity. In this view, answers are either right or wrong. The solution that is derived at the end of the convergent thinking process is the best possible answer the majority of the time.

The opposite of convergent thinking, is divergent thinking and it’s my view that this is what lawyers need more training in. So let’s look at the definition of “Divergent Thinking”:

Divergent thinking is a thought process or method used to generate creative ideas by exploring many possible solutions. It is often used in conjunction with convergent thinking, which follows a particular set of logical steps to arrive at one solution, which in some cases is a “correct” solution. Divergent thinking typically occurs in a spontaneous, free-flowing manner, such that many ideas are generated in an emergent cognitive fashion. Many possible solutions are explored in a short amount of time, and unexpected connections are drawn. After the process of divergent thinking has been completed, ideas and information are organized and structured using convergent thinking.^[1]

And now for the interesting part – if lawyers are so smart, why are they not able to see the faults in their thinking? Why are they not able to adopt a divergent approach to problem solving? Wikipedia has this to say:

“Psychologists have found that a high IQ alone does not guarantee creativity. Instead, personality traits that promote divergent thinking are more important. Divergent thinking is found among people with personality traits such as nonconformity, curiosity, willingness to take risks, and persistence.”

Lawyers are trained to be risk-averse, they are experts in compliance, and they are paid to help everyone adhere to the accepted norms and standards of society. (I’m generalising here, but you get the picture). Lawyers are exactly the opposite of the types of people likely to think in a divergent way.

One of the many reasons mediation is growing, and will continue to grow as an alternative to litigation is that mediators are trained to think as broadly as possible, whereas attorneys, and advocates are trained to narrow down the options. Instead of seeing a huge range of possibilities and ways something could be resolved, the lawyer sees only one – the most expedient, and of course law-based solution. In fact, the entire way our court system is structured is around convergent thinking –  if advocates don’t include in a  prayer for specific relief (“my client seeks X Y and Z”) then he is barred from asking for this later in the trial – regardless of whether it might bring a swift and speedy resolution to the trial and make all the parties happy.

What does this mean for the legal profession? I think we need to draw lawyers’ attention to how they think, not just the content of their thinking, but the process. The best work for this, to my knowledge, is Edward de Bono, the international bestselling author of Lateral Thinking and Six Thinking Hats. I’m so passionate about his work that I am qualifying as a de Bono consultant so I can teach this stuff myself to law firms and lawyers-to-be.  De Bono is the leading authority in the field of creative thinking and the direct teaching of thinking as a skill.

Over and over again, I come back to the notion that IQ is not sufficient for a lawyer to be a good lawyer. Everywhere we are being told that the legal profession needs to change. The introduction to the Altman Weil Law Firms in Transition Survey 2012 states

“These findings suggest that change management will be a required core competency of law firm leadership going forward. The leadership challenge will be to drive change, not just react prudently to external conditions.”

If you’re a lawyer reading this, my challenge to you is take the next 20 (non-billable) minutes and write this in the middle of a blank page:

“How much are we, as lawyers, limited by what we know and understand about law and legal systems, which prevents us from experiencing what is and what could be possible, for our clients?”

And allow yourself to brainstorm – using a spider chart, random lines linking things, bubbles and colours, rather than using boxes, (these are all creative thinking tools) –  what could be possible for your clients if YOU could be open to change?

Ps. The ways in which lawyers don’t see the non-legal solutions will be explored in a separate post.