Litigators

Think Like A Crocodile: Knowing When To Wait

Stop flailing about, and start using your judgment.

By Matthew W. Schmidt  
on

Stop flailing about, and start using your judgment.

Emmerson Mnangagwa, London-educated lawyer and current president of Zimbabwe, is known as the Crocodile for the patience and cunning he displayed first in war and then as Robert Mugabe’s enforcer. He would quietly wait years for the perfect opportunity, then suddenly strike out against his enemies with ruthless brutality. He carried that same patient cunning to his own career, waiting in the wings as Mugabe’s right-hand man for nearly forty years before overthrowing and imprisoning his mentor, seizing the presidency for himself.

Or using a less bloody metaphor, several years ago author and entrepreneur Anthony Tjan wrote a great Harvard Business Review article encouraging marketers to metaphorically practice judo, not karate. A judoka uses her opponent’s strength and weight to her own advantage, while a karateka focuses on using his own strength to punch and kick.

I’ve previously written about the importance of avoiding the temptation to do needless work. But for all too many lawyers, the pitfalls of a bias towards action extend far beyond make-work. It manifests in a fundamental need to do something. But as Mnangagwa and judokas know, it’s far more effective to wait until the perfect moment to make the right move, rather than flail about without purpose.

WHY LITIGATORS FEEL THE NEED TO ACT

Action bias isn’t limited to litigators. It’s pervasive, to negative ends, in politics, investing, and throughout our society. And while some people may need a nudge, lawyers as a class emphatically do not. Before they even enter practice, lawyers are both heavily conditioned to act and screened on their ability to do so, no matter how pointless the task. We all did the dozens of extra-circulars, plus the countless small inane tasks to maintain appropriate GPAs in high school then college.

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Then when they enter practice, the same inertial approach keeps working at first, often spectacularly. Junior attorneys are largely free of strategic concerns; as long as they just keep doing the tasks in front of them, everything will work out. (As a first year, a second year taught me the soothing mantra, “Just keep drinking coffee and everything will be okay,” which remains fantastic advice for all first years.) All else equal, grinding it out as a junior associate is not only an effective career strategy, it also usually helps the case.

All this results in a fantastically effective dopamine feedback loop, reinforced over decades, telling us that action is good. It’s further reinforced by a masochistic culture—of which I’m as guilty as anyone—that celebrates doing more. The end result is at least a generation of experienced lawyers that are biologically conditioned to “do something” in the face of any uncertainty.

THE PROBLEMS WITH ACTION

Gradually, however, blindly doing something stops working. It starts causing problems as soon as lawyers take on significant supervisory responsibilities. Blind action tends to result in the assigning of make-work, micromanaging, leaving subordinates idle while you attend to other tasks, and the creation of artificial deadlines and false emergencies.

An action bias gets more destructive as lawyers take on higher-level responsibilities. We’ve all litigated against the adversary who seems to be making motions simply because they’re expected or rambles endlessly in court without purpose. But the most dangerous aspect of the action bias in litigation is that it becomes destructive both gradually and subtly. You’ll rarely blow up a case by taking decisive action, and any problems that arise are ones you can likely both fix with more action and mentally write off as things that just happen.

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Instead, the harms come in inches, most often in the form of missed opportunities and misallocation of resources. An action bias causes you to approach litigation in the same way you’d approach a college class: a series of tasks and exams that, if successfully completed, will yield a good result. But that’s a fundamentally wrong view of litigation. The goal is to get what you want while expending the minimum effort possible. Many times that will involve simply outworking your adversary and making the better legal arguments, but far from always. Other times, the optimal strategy involves some variation of giving your adversary enough rope to hang themselves or simply staying out of the way.

Put another way, in the perfectly litigated case you would, at the moment of engagement, look forward with perfect foresight upon all the future paths before you, including each action you or your adversary may take and its consequences. You would then choose from all those possible worlds the best possible end-state, identify the most direct path to that end-state, and then take only the steps necessary to reach it.

You may never reach that ideal, but without identifying it you have no hope of even approximating it. Instead, as with all things, we must identify the perfect; recognize that any deviation from the perfect is, by definition, sin; and then proceed as best we can.

BREAKING THE CYCLE OF ACTION BIAS

The bad news is that, like many things, there’s no easy way to break out of the cycle of action bias. It’s easy to intellectualize in the abstract, but once things get busy, it’s even easier to fall into the same old reinforcement loop.

Breaking free in managing is easiest, since that’s an area where you can see near-immediate results. It’s also a change that many are forced into by degrees by work flow. At a certain point, micromanaging simply becomes impossible.

Breaking free in strategic matters is harder. Not only are the results more subtle, but the temptation to act often comes from a place of risk-aversion. Blind, constant action is easy, safe, and allows a lot of room for error. Waiting for the exact right moment and taking the perfect action is none of those things. It involves brinkmanship and faith in one’s judgment and abilities. It requires an accurate assessment of the strengths and weaknesses of you and your adversary, and a willingness to look bad while your wait for the perfect opportunity to make a move.

None of those changes are easy, and you may find that you actually do lack strategic sense and are doomed to either mediocrity or a career change. But better to find that out sooner than later, and in the meantime, you’re probably misserving your clients by flailing around. So remember the crocodile.

Matthew W Schmidt Balestriere FarielloMatthew W. Schmidt has represented and counseled clients at all stages of litigation and in numerous matters including insider trading, fiduciary duty, antitrust law, and civil RICO. He is of counsel at the trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at matthew.w.schmidt@balestrierefariello.com.

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