My fellow curmudgeon, Mark Herrmann, miffs the Slackoisie over at Above The Law by raising a hated presumption.
I’ve never met you, but I assume that you’re incompetent.
I realize that sounds a bit harsh, but it’s time someone told you the truth.
Why do I assume that all new people I meet are incompetent?
No, that’s too easy. Here’s the better question: Why am I right to assume that everyone’s incompetent, and why is that a helpful way to go through life?
A nice person functions in society by giving other people the benefit of the doubt. We assume people are honest, kind, hard-working and caring. We assume they know what they’re doing and desire to do whatever it is they do well. We like kitteh videos too.
But Mark’s point doesn’t apply to nice people. It applies to lawyers. Well, at least lawyers when they’re being lawyers. They can be nice people the rest of the time, when they’re on their own time. But when they’ve got their lawyer hat on, it’s a different matter.
I assume that people are incompetent for two reasons. First, most people are incompetent. The average lawyer is average, and that ain’t very good. I’ve learned to presume incompetence based on long experience.
But there’s another reason why I presume incompetence. Maybe my first point is wrong, and the average lawyer (or person) is actually impressively good. Maybe I’ve had good experiences with secretaries, and associates, and co-counsel in my life. I wouldn’t know; I don’t remember.
When things go right — the secretary actually makes the hotel reservation; the associate gives you a decent draft brief before the deadline; whatever — that’s like water off a duck. No one remembers when things go right. The things that stick in your memory — because they stick in your craw — are the screw-ups.
Lawyers stand in an unusual position in polite society. When something for which we bear responsibility goes south, someone else pays the bill. Blow an argument and a client goes to prison. Perhaps the lawyer is sufficiently caring to realize that it was his screw up, or the screw up of someone under his wing, that fell short, but the lawyer doesn’t offer to serve the client’s time in his place, just because he fells kinda badly about it. Even if he offered, the prison won’t let that happen. Well, maybe it would.
Herrmann’s point is that we can only know with certainty what we do; other people can talk a good game but until we have sufficient experience to move beyond the presumption, we cannot take for granted that another person will do the right thing. Just because unicorns and rainbows. It’s not that lawyers like unicorns any less than anyone else, but that we have no right to shrug it off when the unicorn turns out to be a donkey. It was our responsibility in the first place; it’s our responsibility at the end.
My working assumption — that everyone is irresponsible and incompetent until they prove otherwise — has served me spectacularly well. It causes me to read critically: A normal person might read a legal memo from the senior partner and think, “He’s the senior partner. This memo is probably right.” I read the same memo from the senior partner and think, “I’ve never worked with the guy, so he’s probably inept. What are the mistakes in this memo?”
Doesn’t he sound like a monumental, self-absorbed jerk? Why is he the only one presumed capable? Why is he the only one worthy of overseeing the performance of others? If you ask these questions, then you have failed to internalize the point. To Mark Herrmann, Mark Herrmann is the only one. To you, you are the only one. To me, the same.
Much as I don’t care for the trendy jargon, what Herrmann is saying is that each of us takes ownership, complete and total responsibility, for everything that happens within our sphere of responsibility. It can never be someone else’s fault, because it’s our duty to get it right, including overseeing the other person’s probability of screwing it up.
In a way, Mark overstates his point, though likely to use hyperbole to drive home an otherwise foreign point to many lawyers. It’s really not that we presume you incompetent. We don’t really presume you to be anything, because we don’t know what you are, good or bad, great or horrific. Rather, by introducing the presumption of incompetence, Mark is really asserting the duty of oversight, the responsibility to make sure that every cog meshes fully and properly with every other cog, that every tooth on every cog is sharp and precise.
To drive this point home, Mark expressly notes that the presumption of incompetence is a two-way street:
In my defense, I’ll say that I’m an equal opportunity jerk: I fully expect that, when you first meet me, you will assume that I’m incompetent. Having that working assumption — knowing that you doubt me — is also a good idea.
We can go through our practice of law, put the lives of our clients on the table, and hope for the best of others. Or we can make sure they get the best, no matter what assumptions we may make of others. Just as I may question your work, you need to question mine. When we all take full responsibility for what we do, including the responsibility of making sure that everyone with whom we work is similarly performing at the highest level of quality, integrity and efficacy, we provide the client with what he deserves.
Yes, even with all of this, we cannot assure a client of a win. But we can assure the client of the best damn fight he could possibly get, and that’s what our obligation means.
So when a curmudgeon doesn’t take your fabulosity for granted, don’t get pissed and call him mean names behind his back. It’s not personal. It’s a duty. And just maybe, you aren’t yet as competent as you think you are. The solution isn’t to get angry and defensive, but to do better and work harder.
It’s not that we want you to think we’re just old jerks, but that we want you to put your responsibility to the client first. Ahead of your own ego. Even ahead of us and ours. Much as we may enjoy the respect, our dilemma is to sacrifice it for the benefit of achieving the best possible outcome for the client.