Litigators

Commercial Litigation Is Like A Can Of Monster Energy

Focus on understanding, not ticking off items.

By Matthew W. Schmidt  
on

It’s easy these days to fall into the Cult of Productivity, in the sense of becoming addicted to the dopamine rush of getting things done and out the door. There’s even a bestselling book and productivity method called “Getting Things Done” which, as the name suggests, is about reducing items to lists, organizing them, and getting them done. Up to a point, of course, this is wonderful. We all have several small tasks that we must do, which can benefit from organizing — to-do lists are wonderful, as are more complex Trello or Kanban systems.

The Limits Of Lists

But to-do lists become a trap when they turn into their own ends. Few things can be truly reduced to items on a list. Even something as simple as “brush teeth” only seems simple because it’s something that you’ve been doing regularly your whole life and has the force of habit. If you follow literally a list item of “brush teeth” with the desire to simply get through the item, you’d spend 10 seconds on the job and need to see your dentist for a lot of unpleasant visits. The actual act of brushing is, in fact, a highly complex series of tasks that requires a deep understanding of both effective brushing techniques and the contours of your mouth. You just don’t notice it because it’s become automatic as you’ve gained understanding and expertise.

On the other side of the spectrum from your daily brushing, the aviation industry has checklists down to a science. They have checklists for everything. You can go online and buy, in multiple versions, or even download for free, checklists for your particular aircraft to cover everything from how to do a preflight in a 747 or what to do if your Cessna’s power fails while you’re flying. But the checklists are reminders for experienced operators to make sure that they don’t forget a step in their routine, in a situation where a missed step means that they might die horribly. If you’re on a 747 on fire trying to safely land the plane, as soon as you pull out the engine fire checklist and see that the first item reads only “Thrust lever CLOSE,” you realize that your fantasy of being the next Sully is not going to end well.

Beyond The Limit

Instead, what’s important in all these instances is a deep understanding of what is behind the item on the list. Lists are, at best, mnemonic devices. And no matter how well you memorize “Pvt. Tim Hall always argues, never tries,” that alone isn’t going to tell you what any of that stands for, let alone provide you with any meaningful understanding of amino acids.

Complex commercial litigation, and law generally, is even less hospitable to the use of lists, as each case is not only unique, it’s also a competition between clever people on two sides to figure out which side will understand the case better. The Citi ops guys who forgot, literally, to check all the right boxes back in August could have saved themselves a lot of stress if they’d had a good checklist. But the lawyers for Highland Capital and Investcorp who signed off on returning the funds a few days later probably feel pretty silly right now as well, and no list or list-encouraged thinking would have helped them much.

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Like A Can Of Monster Energy

The reason a checklist mindset doesn’t work well in law is because, to the extent you can reduce a case to a simple principle, it is this: You need to understand everything about it perfectly, then decide the best course of action based on that knowledge.

My current favorite metaphor is that a case is like a can of Monster Energy, the delicious and justly popular energy beverage, but you as the lawyer are an alien who has never seen a canned beverage, or a human, before. All you know is that the can contains a wonderful liquid that will give you more energy to do whatever you like, and that your job is to open it in the most efficient manner possible.

How, as such an alien, would you approach this problem? This sounds silly because we all open tabbed beverage cans all the time. But to an alien scientist who has never seen anything like it before and shares an entirely different cultural and evolutionary history, this is a difficult problem even if the goal is only to open the can without it exploding and wiping out a city due to biological incompatibility. The task gets exponentially more difficult if you’re leading a team against another alien scientist team to not only open the can safely, but do so in the most efficient manner, assuming you have only one can and can’t use trial and error.

Where do you even start with such a task? The only method is through fully simulating the can. You need to understand everything about it perfectly. If you strike it with one newton of force over a circular area with a radius of two millimeters, five centimeters from the bottom of the can, it will have certain effects to the metal of the can and the liquid inside. If you strike with 1.2 newtons a half millimeter higher, it will have a certain other effect, and so on. Everything must be understood completely, so you can say with confidence that if you touch the can in a certain way, a certain result will happen, and from that you build a model of the most efficient manner in which, with the absolute minimum of effort, you achieved the desired result.

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Let’s build on the metaphor. Assume like with law, there’s no computer model the scientists can use to simulate all this, and the team needs to contain it all in their minds. One person alone can’t hold this for any case of more than trivial complexity, so you need to distribute it. That means one junior person on the team must, for instance, take responsibility for understanding the physical properties of the can’s metal. They must master its melting point, electrical and heat conductivity, density, malleability, ductilibility, and so forth. They must understand it completely, to the point they could converse easily with Plato or Maxwell or Freeman Dyson on any aspect of the subject of the can. They understand its molecular structure, how it responds to different levels of heat, cold, radiation, or any other force. They understand its taste and smell. They understand all of it, completely, to an instinctual level.

Then this junior scientist must be able distill that knowledge, at the level that they could explain any aspect of it to a 6-year-old, and then be able to convey all relevant information to the head of the team. Through this method — and only this method — may the team then simulate accurately all the properties of the can of Monster Energy. Once the simulation is achieved, the rest of the path is relatively easy. You simply run through all possible permutations and determine the best. You try, in your mind, all the options: Puncturing the can with a pocketknife; slicing off the top with a kitchen knife; opening the mouth by jamming your thumb through the tear strip; and any of about 50 different ways you could work with the pull tab. Through such testing, you’ll find the best method, and off you go.

What Comes Next

That’s it. The important part, as you’ve noticed, is the foundational understanding. Once you’ve mastered brushing your teeth; putting out fires on your Cessna; or all the physical properties of a can of Monster Energy, the rest is almost autopilot. But the preparation and attendant understanding is the hard part. So make sure that you never skimp on that understanding, and never let a fixation with getting it done take precedence over understanding what, exactly, you are trying to get done.

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 a partner 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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