Dean’s experience dealing with difficult, multi-jurisdictional cases has inspired him to take a distinctive “strategic” approach to solving a client’s problem. The strategic approach breaks out of the “technical” paradigm- the model for problem solving that prevails in the legal profession. The technical approach is based on specialization by subject matter. The customary methodology is to solve the problem by fitting it into a practice area and thinking within the confines of that practice area.
While the technical approach is satisfactory in a routine case where the problem falls neatly within a distinct practice area, it is inadequate in a complex case where the problem:
- spans multiple practice areas in the legal field;
- extends into practice areas in other professional fields;
- reaches into practice areas in other jurisdictions; or
- is essentially “non-legal” in the sense that it primarily involves commercial, reputational or political considerations that are not generally resolved through legal means.
All of these problems have one thing in common: multiple parts that involve several diverse practice areas in law and other professional disciplines. It is not possible to solve this kind of problem by following the established pattern of thinking.
This is why Dean has adopted a paradigm for problem solving that is based on one, fundamental operating principle: think and act strategically at all phases of an engagement.
Here are the specific guidelines that Dean strives to follow in furtherance of this underlying principle:
- Devise an up front strategy
- Make the strategy client-oriented
- Pinpoint the real problem
- Synthesize the technical inputs
- Search for alternative solutions
- Act pre-emptively
- Speak the client’s language.
Devise an Up Front Strategy
The foremost priority is to think strategically before acting. The plan of action should be thoroughly thought through at the outset of the assignment. It should determine what action is taken and when. Difficult cases are often lost when a move is made that lacks any strategic purpose. This kind of premature and aimless action is rarely effective and typically counter-productive.
The need to develop an immediate strategic plan is all the more compelling when a client turns for advice in the midst of a crisis. The strategy must be fully conceived on an urgent basis without hesitation.
Make the Strategy Client-Oriented
There is no point in coming up with a legal solution that makes no business sense. The strategy should gravitate around the client’s business objectives and the problem that stands in the way of realizing those objectives. The client’s business problem and objectives should drive the strategy- not the lawyer’s expertise in a practice area.
The client’s commercial context must be fully understood to craft a solution that is commercially beneficial and serves the client’s best interest. The lawyer should become immersed in the client’s operations, industry, competition and regulatory environment at the outset of the engagement.
Some lawyers are in the habit of laying out the legal options and risks but stop short of giving the client a bottom line business recommendation. When they do so, they claim that their role is limited to providing “legal advice”- not “business advice”.
From a strategic perspective, the so-called dichotomy between “legal advice” and “business advice” is an artificial distinction without a difference. It is born out of a strict adherence to an unduly technical approach- a conviction that a business problem should be divorced from its commercial reality and slotted into a freestanding area of legal specialization.
Pinpoint the Real Problem
It is imperative to accurately define the problem at the front end. All too often a client or professional classifies a problem based on first impression and a superficial analysis. The problem must be more deeply examined before it is conclusively identified.
An apparent “problem” may turn out to be an opportunity upon deeper analysis. Similarly, a problem that appears to be “legal”, at first glance, may turn out to be fundamentally commercial, political or reputational upon closer examination.
The consequences are severe if the problem is mistakenly identified. The lawyer will end up dealing with the wrong issue and making matters worse in the process. An ill-conceived misstep based on an incorrect diagnosis of the problem cannot be undone or wiped from the record. It has an irreversible and lasting effect that inevitably compounds the client’s initial problem.
Take, for example, the case in which the true problem is fundamentally non-legal. In these circumstances, pursuit of a widely-accepted legal remedy will likely undermine the client’s best interests. This is a classic and tragic form of strategic error- one in which the lawyer wins the battle on the legal front but loses the war on the commercial, reputational or political front.
Synthesize the Technical Inputs
Specialized expertise from all relevant practice areas- in law or any other professional field- must be pulled together to forge the strategy. It is not sufficient to merely aggregate divergent and fragmented technical information from various sources. The collective knowledge must be fully integrated to arrive at a creative solution that is more than the sum of its parts.
The scope of the strategic perspective should be broad enough to encompass multiple perspectives of lesser scope- the client’s own perspective and any practice area perspectives that assist in bringing the problem into full view. This is the only way to ensure that all the parts of the problem are seen in their totality.
In particularly challenging cases, non-legal issues of a commercial, reputational or political nature may be intertwined with legal issues. Under these circumstances, the strategy should incorporate relevant expertise from other professional fields : crises management, reputation management, regulatory compliance and political risk assessment to name but a few.
Search for Alternative Solutions
It is essential to generate and vet all viable ideas for solving the problem once the client’s objectives, the real problem and the technical inputs are fully understood. This is best accomplished through a brainstorming session.
The brainstorming process must be freewheeling and comprehensive. It should not get bogged down in the technical details at the micro level. The only way to solve the problem is to focus on the macro level and think laterally- think outside the practice area box. A lawyer who fails to look beyond the conceptual boundaries that demarcate a practice area ends up treating these boundaries like blinders that narrow the scope of vision and block the problem from full view.
Preoccupation with an area of specialization not only limits the ability to understand the problem; it impairs the ability to solve the problem. The practice area boundaries become mental blocks that suppress the creativity needed to arrive at the best solution.
Act Pre-emptively
Once the strategic plan is mapped out, it should be executed on a proactive and timely basis at every stage of the engagement. This is especially important in a crisis- when the problem must be solved before the damage intensifies.
A well-conceived, forward-looking strategy makes it possible to anticipate a potential problem and take preemptive action before it materializes.
Speak the Client’s Language
A sound strategy is worthless if it is conveyed in a way that the client cannot fully appreciate and exploit. While legalese is essential for precise communication in the professional community, it has little meaning to the business community. Legal terminology should be decoded and put into business terms that are readily comprehensible to an executive or principal.
In the commercial world, the client must make difficult decisions when confronted with a complex business problem. This is the point in time at which an executive or entrepreneur turns to a lawyer for direct advice on what to do. There is nothing more frustrating to the business community than a legal opinion couched in provisos and disclaimers that obscure its meaning. The lawyer should rise to the occasion and give the client a bottom line recommendation.