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When 'That’s the Way We’ve Always Done It' Doesn’t Cut It Any More

Ever been in a situation like that?

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We have all encountered the situation where colleagues are hired in or promoted, more money, more title, whatever, and there’s dismay about the hire or promotion, given that those promoted seem to lack the necessary skills to justify it. The reaction is often, “Wait, what? Why him and not me or someone else equally qualified?”

The “escalation of commitment” theory explains that people cling to ideas, things, even people, that didn’t work in the past, and yet, they refuse to let go. Ever been in a situation like that? I thought so.

Why are people so reluctant to admit that a choice was not the right one? Having worked in a corporate environment for many years, I think that management didn’t want to admit that the choice was wrong from the get-go; it was akin to throwing good money after bad. It was the “sunk costs fallacy,” that by spending more money, it’ll all work out. Not.

Management wanted its choice or choices to work out, to succeed, and so they continued down the path of bad decisions. Blinders were on while trying to save face, rather than (gasp) admit that a mistake was made. It was a bad hire, a bad promotion, whatever. (As an aside, as the employment lawyer, it was then my job to clean up after it all. Other employment lawyers will nod in agreement.)

The belief that it’ll all work out is belief in the tooth fairy. The escalation of commitment only leads to more grief and aggravation for all and potential liability. Duke University professor and author of several books, including “Predictably Irrational,” Dan Ariely, has a good analogy: Do you rip the Band-Aid off in one fell swoop (more painful but faster) or more slowly (less pain but longer)?

Lawyers tell clients that they have a slam-dunk winner and if they can just hold on a little longer victory will be theirs. So, what the lawyer has done is to overpromise and underdeliver, a variation of the escalation of commitment theory. Just make sure your malpractice insurance premium is paid up.

Years ago, I had a two-session mediation in which a single plaintiff alleged various forms of discrimination. The defendant offered resolution in the low six figures, which I thought was a fair offer given the facts and circumstances. The case didn’t settle; it went to trial and the plaintiff was defensed on all theories in less than an hour. Escalation of commitment to the losing case? Greed? You tell me.

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I just started reading Adam Grant’s latest book, “Think Again: The Power of Knowing What You Don’t Know.” We rush to judgment in so many ways. I saw this again and again as an advocate, and I see it now as a mediator. And we see it today in everything and everyone around us.

Grant says we get stuck in the mud of repetitive thinking and can’t extricate ourselves to think again, about how we might do things differently. He provides one example of the CEO who created the BlackBerry (late lamented, at least to me) and was so stubborn that he was unable to see the value in restyling the BlackBerry to compete with the iPhone. The CEO dismissed the idea that people wanted more than a wireless device for work; he didn’t see that people could want handheld entertainment as well. Grant says this is Exhibit A for the refusal to change one’s mind to consider possibilities beyond the present. As Grant says, “If you lack the motivation to change your mind, you miss many occasions to think again.”

Two kinds of biases are at play here, Grant says. The first is the confirmation bias, the expectation that things are true as we see them. The other is the desirability bias, that we see things as we want them to be. Most, if not all, clients have one or both biases, which can make it difficult to persuade them to see other points of view.

Thinking again can be applied to the dinosaur-newbie lawyer dynamic. There are four phrases to this dynamic: anathema to the dinosaur and change killers to the newbie. How many times has a newer lawyer suggested a different approach, a different way of thinking about a case or a client only to be shot down by a senior lawyer. He spouts one or more of the following:

  • “That will never work here.”
  • “It’s not what my experience has shown.”
  • “That’s too complicated, let’s not overthink it.”
  • And my personal favorite: “That’s the way we’ve always done it.”

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Sound familiar to the frustrated newer lawyer who is trying to persuade the dinosaur to think differently or to implement changes that will make the practice run more efficiently and economically?

There’s a lesson here for all of us: our knowledge blinds us to what we don’t know. Our judgments often close our minds instead of opening them. Overconfidence is always fatal. Take a risk, understand the limits of your knowledge (hard for lawyers to do), and think again.

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. 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 dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

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