By Robert A. Creo, Editor
In the climactic scene in the 1989 movie, Indiana Jones and the Last Crusade, both Indiana Jones, and the villains arrive at the cave where the Holy Grail has been guarded for centuries by a Knight. There is a table with numerous grails (cups) where the Holy Grail is hidden in plain sight. The Knight admonishes them to “choose wisely.”
As we saw in the clip, the bad guy chooses the fanciest cup and is destroyed. The Knight’s only comment is “he chose poorly.”
Attorneys are a product of their education and training. The emphasis in legal education had historically been placed on abstract principles and theory rather than practical problem solving. Until recently, navigating the procedural landscape became the hallmark of legal education and hence legal practice. Legal education narrows lawyers’ perspectives of problems and causes a default to matching fact patterns arising from human behavior to attempt to create issues which favorablely pigeon-hole into existing legal doctrines and precedents. Basically, in dealing with events which mostly happened in the past, the lawyer searches for blame, that is, actions which are unreasonable or otherwise were directly attributable to the opponent and not to your client. Some of this focus is on which party bore the risk of unexpected or events not addressed in the documents or the law or norms of the relationship. Much of the work of transactional lawyers is to draft terms and conditions which place the risk, and blame, on the other party for both likely events and the unanticipated. Transactional lawyers are usually in a protective mode seeking closure or a clean break from potential future problems and liabilities.
Now the leaders in legal education are shifting their focus to what are deemed to be the “soft skills” which make practitioners effective. Critical thinking and research has explored what characteristics, traits, or attributes make for effective legal representation.
Attorneys should reach beyond the discipline of law to enhance the understanding of the psychological and other dimensions of decision making.
Attorneys need to engage in reflective processes and continual learning to enhance decision making skills.
REFERENCES & ADDITIONAL READING
Randell Kiser, Martin A. Ashser, Blakeley B. McShane, Let’s Not Make a Deal, 5 J. Empirical Legal Studies, No. 3 (2008).
Randell Kiser, Beyond Right and Wrong, The Power of Effective Decision Making for Attorneys and Clients, (Springer, 2010).
Jonathan Lehrer, How We Decide (Houghton-Mifflin-Harcourt, 2010).