Old Lady Lawyer: What’s Wrong With A Plan B?
Lawyers have contingency plans for if or when the case goes south. Thus, Plan B.
As lawyers, we learn to think strategically, to consider the worst possible outcomes (which is why we’re such fun at dinner parties), and then figure out how to counteract the parade of horribles we can imagine and hopefully stay in the imagination, never to become realities.
Such horribles can include missing a filing deadline, blowing a statute, failing to comply with discovery requests, having a witness roll over while testifying in court (my personal sleepless night), and the like. I’m sure that we all can come up with our own lists, equally scary and nightmare-inducing. Since we are all control freaks (otherwise, why would we be practicing law?), we know that we can’t control everything in our practices, but we do need to feel that we have control to the greatest extent possible. That’s why I think most, if not all, lawyers have contingency plans for if or when the case goes south. Thus, Plan B.
Now comes research that says, in essence, having a Plan B might not be such a great idea, because it could deter you from accomplishing Plan A.
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Using our two most favorite words, I think it depends.
The article points out that having a Plan B can distract from achieving Plan A and reduce motivation to reach that goal, that an unintended consequence of a Plan B is less likelihood of Plan A success. That may be true in some cases, but not in all, and I don’t think it necessarily applies to lawyering. Timing is critical in all things, and especially in Plan Bs. The authors point out that their research about a Plan B correlates to goals that are “highly dependent on efforts,” but aren’t our successes as lawyers “highly dependent on efforts?”
As lawyers, we use our best efforts to reach the client’s goals (otherwise, we’re calling our malpractice carriers.) So, I just don’t think that having a Plan B detracts from achieving Plan A. What if the client’s goals change? What if Plan B satisfies the client’s needs more than Plan A would have done? How do you respond to the client if/when the client asks what the game plan is if the dominos don’t fall in the right direction? I think that failing to have a Plan B, to consider alternatives from the get-go, is either failing to prepare or preparing to fail. Take your choice.
The study authors, Jihae Shin of Wisconsin School of Business and her coauthor, Katherine Milkman of Wharton, think that it might be wise to “…consider making a backup plan after your goal-related efforts wrap up and the outcome is now in someone else’s hand (e.g., your coworker’s, a judge’s, etc.).” Uh-oh, no, but thank you for sharing.
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Once your case is in the hands of someone else, the judge or the jury, it’s usually too late for a Plan B. To the extent that we have control, that control flies out the window at that point in time. While it’s true that you never know what the trier of fact is going to do, I would not like to be sitting at counsel table and the client turns to me and says “Now what?” Now what, indeed. It may well be too late to resolve the case (a Plan B), especially if opposing counsel has shredded your client on cross-examination, and your rebuttal witnesses were of limited use, damage control wise. So, sauntering over to the opposing counsel’s table in hopes of a Plan B may well be an exercise in futility. There’s an example of a Plan B that makes no sense given its timing.
While the study was done in the context of job seeking, and the theory is to not give up on Plan A before all avenues have been exhausted, the study says that having Plan B diminishes the likelihood of Plan A success; there’s less motivation to achieve Plan A.
The authors say that they’re “…not suggesting that you always avoid making backup plans. But maybe you could hold off on doing so until you’ve put as much effort as possible into your primary goal.”
Tell that to all the millennial lawyers who have had no luck in finding jobs. At what point in time do they relinquish their dreams of a Plan A job and hunker down to Plan B reality? When they can’t even get interviews? When they are interviewed, but someone else is selected? Or, is it when the first of the what-seems-like-a-lifetime of student loan bills shows up shortly after graduation and bar passage? You tell me.
I don’t think holding off on a Plan B is a good idea in lawyering, especially when the “best case” becomes your worst nightmare in a heartbeat when a witness who doesn’t say what you think she’s going to say. (You can prepare witnesses all you want, but we all know that preparation doesn’t necessarily mean anything when a witness is deposed or takes the stand. Raise your hand if this has ever happened to you. Ha! I thought so. I cringe every time I remember one senior executive who was prepared for deposition and then completely fell apart at deposition, looking at outside counsel and me every time he was asked a question. Aaarrrggghhhhh.)
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Lawyers deal in contingencies and litigators often use decision tree analyses to figure out possible options and their percentages of success. What if the witness says this? What if the client says that? What if there’s a smoking gun in the unprivileged emails we have to turn over? What’s the likelihood we’ll win on summary judgment? What’s your backup plan if your motion in limine is denied?
Preparation is the hallmark of good lawyering, and I think part of preparation is exactly that, preparing for every possible contingency that our cynical, wary, and yet creative minds can formulate. It’s what we do, and it’s what clients expect. They want us to figure out for them a Plan A, Plan B, Plan C, and so on. It’s what we’re paid to do.
Jill Switzer is closing in on 40 (not a typo) years as a active member of the State Bar of California. Yes, folks, California, that state west of the Sierra Nevada, which everyone likes to diss. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see old lawyers, young lawyers, and those in-between interact — it’s not always pretty. You can reach her by email at oldladylawyer@gmail.com.
