Biglaw, In-House Counsel, Partner Issues

Inside Straight: Assuming That People Are Idiots

What is the "rule of negativity," and what does it mean for you? In-house columnist Mark Herrmann explains.

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I don’t live in Lake Wobegon.

I live in Lake WoeIsMe: All of the children are a little below average.

Or maybe I just have a bad attitude.

I’ll be frank: If I just met you, I assume that you’re inept. Not because you necessarily are inept, but because I’ve been blindsided too often in the past by the mistakes of people who I foolishly believed to be competent. That ain’t gonna happen again.

I understand that not everyone views the world through my gray-tinted glasses. I’ve met folks who are shocked by my attitude: “Mark, that outside lawyer from Honduras just told you that you’d win the case. Why are you acting as though we’re going to lose?”

“Because the lawyer is probably incompetent.”

“Why do you think that? He comes highly recommended by Smith.”

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“Why do we think that Smith is competent? Or that Smith knows enough about the Honduran guy to have a right to judge him? My working presumption is that people are incompetent until they prove otherwise.”

“I’m shocked by your attitude, Mark. I’m exactly the opposite. When I meet new people, I always assume that they’re good at what they do.” . . .

That’s because you’re young. Or have been unbelievably lucky. Or are extraordinarily resilient. Or are a fool.

As I’ve written before, I don’t assume that you’re inept because I know that you’re inept. When we first meet, I don’t know you at all. Rather, I assume that you’re inept because you’re haunted by the ghosts of incompetents past, whose memories stick in my craw. I don’t have to hedge against you being good; that would be a welcome surprise. I have to hedge against you being bad; that would ruin my life (as has happened too often in years gone by).

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I don’t know whether most of the world operates on my assumption or my colleague’s. But you might as well assume that strangers don’t trust you; that will help you when you encounter cantankerous jerks like me, and it won’t hurt you when you’re dealing with the young, lucky, resilient, or foolish.

(I’m an equal opportunity naysayer: I assume that, when you first meet me, you’ll figure that I’m incompetent. So I’ll work to overcome your hypothesis by proving that I’m good. So far as I can tell, that approach has never hurt me, and many times it has helped.)

What does my negativity (and, I assume, the negativity of many others) mean for you?

First, when you’re pitching a new client, you’re at a huge disadvantage. Suppose we meet over lunch, and you seem like a decent guy. I should hire you because of that??? You’re a decent, incompetent guy. Why would I care to hire you?

Or you come in for a pitch, and you and your partners tell me that you’ve gone to good schools, done reasonably well, won a few cases, and think you’re fine lawyers. I should hire you because of that??? The next firm walking in the door will say exactly the same thing, and you’re all probably incompetent.

With an attitude like that, who will I hire?

The guy (or gal) who I’ve worked with before and who has proven (as opposed to asserted) that he’s a fine lawyer. Assertions don’t mean anything; the proof is in the summary judgment papers.

If I don’t know the right lawyer for a matter, then I locate someone who’s proven himself to be competent, and I ask that person for a recommendation. It’s true this makes me nervous, but it’s far better than the alternative of trusting some unknown clown who tells me that he thinks he’s a good lawyer.

My negativity affects our relationship in other ways, too:

Suppose you change firms, and the next day you send me an e-mail telling me that your new firm has a bunch of great lawyers. Your new colleagues are fine litigators, outstanding transactional lawyers, superstar tax lawyers, and can’t be beat for public company work. What’s my reaction?

You don’t even know these people yet, and you’re telling me that they’re all great??? That’s pretty darned unlikely, and I think less of you for having suggested it. (I know that your new firm leaned on you to do this. But you’re still trying to scam me; why should I be pleased?)

Or suppose your firm just hired a lateral in, say, London, and you call to tell me that I just have to meet this person, because she’s great. Is she great because you’ve actually worked with her, and you have a right to an opinion, or is she great because you’re duty-bound to integrate the new lateral? One opinion may be worth listening to; the other is hokum.

What does the rule of negativity mean for associates?

When you walk into a partner’s office for the first time, the partner assumes that you’re incompetent. When you promise to do something, you won’t. When you say you’ll do something well, you’ll do it poorly. When you’re asked to hold something in confidence, you’ll blab.

How do you overcome this?

Demonstrate that you, unlike all the other clowns the partner has dealt with through the decades, actually do things on time and right. Maybe give some comfort: “You asked for the draft brief on Wednesday. If you have time to review a draft two days early, I’ll get you the draft on Monday. That will give us plenty of time to work through your suggestions.” And when you give the partner the draft, it’s perfect! (Or, at a minimum, it requires only tweaking around the edges, as opposed to burning and starting over again from scratch.) The partner will be startled, and you’ll have begun the process of proving that you’re competent and earning the partner’s trust.

I know that I’m a curmudgeon.

But the world is filled with people like me.

If you assume that everyone you meet thinks you’re incompetent, you’ll be well on your way to building a reputation.

That’s not such a bad thing, is it?

Mark Herrmann is the Chief Counsel – Litigation and Global Chief Compliance Officer at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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