Biglaw, In-House Counsel, Partner Issues, Screw-Ups

Overcoming The Presumption Of Incompetence

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.

Some people assume that strangers are competent. One of my colleagues in our Law Department said to me recently: “Outside counsel says we won’t have much liability in that case.”

I naturally asked, “Is he right?”

She was shocked: “He’s a partner at a well-respected firm. We hired him. I assume he’s competent.”

That got us to talking. My colleague gives strangers the benefit of the doubt; she assumes that people are competent until they prove otherwise. I’m exactly the opposite: When I meet you, my working assumption is that you’re inept. Over time, there’s a chance you’ll convince me that I’m wrong. (But probably not.)

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?

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. When I was clerking in the Ninth Circuit, the average brief that came through our chambers was abysmal. When I interviewed for jobs (coming out of that clerkship) and struck up conversations with lawyers about topics that I knew something about, the lawyers were often poorly informed. After I started working at a firm, secretaries didn’t do things you asked them to do; clients took the easy way out of problems; other lawyers, at your own firm or elsewhere, dropped balls left and right. As a partner, I quickly learned that associates don’t bother to complete tasks assigned to them; if the tasks are finished, they’re not done on time; if done on time, the quality is terrible. And I was seeing all of this in pretty rarefied air, when I was working at top-notch law firms with well-respected co-counsel representing Fortune 500 clients. Who knows what life is like down in the valley? It can’t be pretty.

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. You remember arriving at Reagan National 45 minutes before the departure time and learning that the secretary booked you out of Dulles. You remember the weekend you spent reassembling the appendices to an appellate brief because an associate — had this kid really gone to law school?? — apparently didn’t understand the meaning of “chronological order.” You remember receiving the draft brief from local counsel two days late and then having to burn the thing and start over.

That’s what you remember, so that’s what you spend your life hedging against. You (or at least I) assume the worst.

And that’s great!

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?”

When you read things with that attitude, you’re a far more critical audience; you might actually notice the mistakes.

My attitude may make me a bit compulsive. I assume that people will drop the ball, so I often, for example, ask people to confirm that they’ve done the things that they’ve promised to do. I assume that written work will be terrible, so I ask for drafts sufficiently before the deadline to give me a chance to fix the mistakes. Call me crazy (and maybe I am), but the presumption of incompetence has allowed me to meet many deadlines that I otherwise would have missed and to improve the quality of an awful lot of work that has gone out under my supervision.

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.

You ask me to send an email. You assume that I’m incompetent and so won’t send it. I therefore blind-copy you on the outbound email, so you see that it went. Aha! I’m starting to prove myself to you.

When I was a sixth-year lateral associate and was asked (as my first project at a new firm) to write a research memo, I didn’t complain that I was too old to be writing research memos. Of course my legal career had been blown back into the Stone Age: These new partners had never worked with me before, so they assumed that I was an idiot. Why would they assume otherwise? The solution is not to complain, but to knock the cover off the ball, so people will be passing around your memo years hence explaining that “this is the epitome of what a memo should be.” Your work must shout: “Screw you and your assumption of my incompetence! I’m one of the few competent people in the world, and I’m able to do much more than write research memos!”

Once you understand that many people presume your incompetence, you understand how to succeed: “My new [client/boss/whomever] assumes that I am incompetent. How do I overcome that presumption?”

The answer is obvious (if a bit compulsive). Do things on time, and give people comfort that you’re doing things on time. When things are finished, let people know that they’re finished. Show people the finished product, so they understand that you’re one of the few people who actually does things right. Eventually, you’ll disprove the assumption that you’re inept, and you can then calm down.

These rules apply to everyone: If you’re an associate, the partner you’re supporting thinks that you’re about to drop the ball and produce bad quality work. Prove to the partner that you’re competent, and give the partner comfort along the way that you’re making intelligent progress on your tasks. If you’re a partner, your new client assumes that you’re irresponsible and incompetent. Prove otherwise. Anticipate the client’s needs, and exceed the client’s expectations. If you’re working in-house, then your supervisor, and your clients, and everyone else you encounter, all assume that you’re incompetent. Prove them wrong. Give them prompt, perfect service, and let them see it happening along the way, so that you become a trusted member of the team.

It may not be nice to assume that strangers are incompetent, and it may cause you some psychological stress. But consider two things: First, assuming the incompetence of others is the preferred way to go through life, because it’s likely to be accurate. Second, even if you can’t convince yourself that everyone you meet is probably inept, remember that people like me exist. When you’re working with someone new, there’s a chance that new person doubts your diligence, your intelligence, and your judgment. Overcome the presumption of your incompetence, and that may be the beginning of a beautiful friendship.

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

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