When “This is how we always did it” is no longer enough
We’ve all come across the situation where coworkers get hired or promoted, more money, more title, whatever, and there is dismay about hiring or promoting as the promoted seem not having the necessary skills to justify it. The reaction is often, “Wait, what? Why him and not me or someone else equally qualified?
The “escalating engagementThe theory explains that people hold on to ideas, things, even people, that haven’t worked in the past, and yet they refuse to let go. Have you ever been in such a situation? I thought so.
Why are people so reluctant to admit that a choice was wrong? Having worked in a corporate environment for many years, I think management did not want to admit that the choice was wrong from the start; it was like throwing the good money after the bad. It was the “sunk cost fallacy” that by spending more money everything would work out. Not.
Management wanted their choice (s) to work, to be successful, and so they continued down the path of bad decisions. The blinders were on trying to save face, rather than (gasp) admitting a mistake had been made. It was a bad hire, a bad promotion, whatever. (By the way, as an employment lawyer then it was my job to clean up after all. Other employment lawyers nod.)
The belief that all will be well is the belief in the tooth fairy. Escalating engagement only leads to more heartache and aggravation for all and potential liability. Professor at Duke University and author of several books, including “Predictable irrational, ” Dan Ariely, has a good analogy: do you tear off the dressing all at once (more painful but faster) or slower (less pain but longer)?
Lawyers tell their clients that they have a slam-dunk winner and if they can just hold out a little longer, the victory will be theirs. So what the lawyer did was over-promise and under-offer, a variation of the escalation theory of engagement. Just make sure your malpractice insurance premium is paid.
Years ago I had a two-session mediation in which a single complainant alleged various forms of discrimination. The defendant proposed a resolution in the low six figures, which I thought was a fair offer given the facts and circumstances. The matter did not settle; he went to trial and the plaintiff was defended on all theories within an hour. Escalating engagement in the losing deal? Greed? You tell me.
i just started reading Adam Grant’s Last Book, “Think about it: the power of knowing what you don’t know.” We rush to judgment in so many ways. I have seen this again and again as an advocate, and now I see it as a mediator. And we see it today in everything and everyone around us.
Grant says we’re stuck in the mud of repetitive thoughts and can’t get out of it to think again about how we might do things differently. He gives an example of the CEO who created the BlackBerry (belatedly lamented, at least for me) and was so stubborn that he was unable to see the point of giving the BlackBerry a makeover to compete with the iPhone. The CEO rejected the idea that people wanted more than a wireless device to work; he didn’t see that people could also want portable entertainment. Grant says this is Exhibit A for the refusal to change your mind to consider possibilities beyond the present. As Grant says, “If you lack the motivation to change your mind, you miss out on many opportunities to think again. “
Two types of prejudice are at play here, Grant says. The first is confirmation bias, the expectation that things are true as we see them. The other is the desirability bias, that we see things as we want them to be. Most, if not all, clients have one or both biases, which can make it difficult to persuade them to see other points of view.
Thinking can apply to the dynamic beginner dinosaur lawyer. There are four phrases in this dynamic: curse for the dinosaur and change killers for the beginner. How many times has a new lawyer suggested a different approach, a different way of thinking about a case or a client only to get shot down by a seasoned lawyer. It springs one or more of the following:
- “It will never work here.”
- “This is not what my experience has shown.”
- “It’s too complicated, let’s not think about it too much.”
- And my favorite: “That’s how we’ve always done it.
Sounds familiar to the frustrated new lawyer trying to persuade the dinosaur to think differently or implement changes that will make the firm more efficient and cost effective?
There is a lesson here for all of us: our knowledge blinds us to what we do not know. Our judgments often close our minds instead of opening them. Overconfidence is always fatal. Take a risk, understand the limits of your knowledge (difficult for lawyers to do) and think again.
Jill Switzer has been an active member of the California State Bar for over 40 years. She remembers practicing law in a gentler, gentler time. She has had a diverse legal career, including stints as an assistant district attorney, solo practice, and several in-house concerts. She’s now a full-time mediator, which gives her the opportunity to see dinosaurs, millennials and those in between interact – it’s not always civil. You can reach her by email at [email protected].