Making decisions is a process which is unique to every individual. From a team standpoint of view, it should be based upon direction of the team leader with member input. Team leaders can vary depending upon the circumstances and reliance upon professionals is crucial. It is also crucial that the professional be able to make a decision for the team and the client. There are a whole host of books and articles and even college courses centered on decision making. This article addresses a small portion of what goes into decision making when it comes to legal knowledge and leverage that legal knowledge as well as expertise.
Impulsive decisions are dangerous and some psychologists say first impressions are the most lasting impressions. Frequently, first impressions are the most false impressions. This is because many rely upon appearance without consideration, understanding and assessment. That is not to say that first impressions are unimportant, but the first impressions must be based upon several factors. In the legal sense, there must be a complete understanding of the case in the litigation arena and a complete understanding of the business aspect of the deal making arena. Having a complete understanding initially creates the best impression and the best assessment. After the initial thorough review, one should make note of the initial assessment. The initial assessment frequently turns out to be the most correct assessment. While this is not always true because some hidden facts may be discovered late that can change an assessment, the initial assessment is a good starting point because it can guide the decision making process and help create predictability.
Understanding the Situation
Making correct decisions requires a complete understanding of all the relevant circumstances. In the litigation arena there should be a thorough understanding of the motivation of the opposing side, especially the motivation of opposing counsel. Quite frequently litigators run into a situation where the opposing side has “file churners” with the “Dead Whale Syndrome.” This occurs when the opposing side sees their file as a value for hours to be billed and it becomes difficult to resolve a matter while that motivation exists. What most should understand, but often do not, is that closed files make more money. This is true in the deal making arena as well as the litigation arena. A file that is closed allows the parties and the attorneys to move forward to the next deal or the next matter that needs to be resolved. There also needs to be a recognition if the other side is a “Fence Sitter.” Fence Sitters have a difficult time making decisions and quite frequently get stuck in neutral because they cannot move forward in matters. This is true with deals and litigation. If one party cannot make a decision, frequently negotiations go nowhere or litigation becomes unnecessarily long. Strategy should be considered if a deal cannot go forward because of indecisiveness of another side or the indecisiveness in litigation.
Fear is the greatest factor in making decisions. Quite frequently, the only bad decision is no decision at all. It is impossible to determine if something is a bad decision because there is no true time machine to go backwards and determine if another course of action should have been taken. Review of decisions are often made and it is believed that the bad decision had occurred; however, this is not a true assessment because of the impossibility to know the actual outcome had a different course than taken. Once a decision is made, moving forward with regret is unproductive as courses of future action can be changed. As opposed to having regret over the past, take action and change the course of the future. Overcoming fear does not mean a decision has to always be made. Sometimes no decision is a decision in and amongst itself. Sometimes not taking action is the appropriate decision to make. Sometimes a deal should not be struck and sometimes litigation should not be filed. Overcoming the fear of making a bad decision is probably one of the most important factors of making a proper decision in the first place.
Understanding the details is extremely important in determining the right decision. In the litigation arena, the goals must be determined so that a proper roadmap may be created. Further, a knowledge of the business that is involved in litigation and the details of the factual circumstances are very important. No stone should be left unturned and in doing so proper goals can be created. It is important to understand the goals that are desired and how those goals can be reached. With this understanding of details and goals, a proper roadmap may be created. The same holds true with deal making as a business needs to be thoroughly understood and the goals of the business relationship must be defined. With the understanding of these details, what we refer to as predictive results can be derived. This is true in the litigation arena as well as the deal making process. With a thorough knowledge of the facts and the goals that may be attainable, the results can be created and a roadmap can be designed to reach those results.
No one can make good decisions without good knowledge. In the legal area as well as those areas that involve CPAs, trusted advisors should be leveraged. These advisors should be able to make decisions on behalf of the client where necessary and guide the client in all situations. Some clients like to be very analytical in the process and some simply like to have the trusted relationship where they just turn everything over and the decisions must be made. Having a professional that cannot help make the decisions, but only provides varying alternatives can lead to problems. The client needs to know likely scenarios and should be able to rely on the advice of their professionals to make the most prudent and best decision under the circumstances. The client should be able to draw on the experience and knowledge of the professional in this process. It is important for the professional to completely understand the client’s business and the territory involved which can produce predictive results. The client must have a trusted confidante’s to help guide the decision making process.
Stephen Fuller is the managing partner of Fuller Sloan LLC and has practiced in business litigation and consulting for 37 years and has over 25 years representation of the founder of one of the largest sit-down casual restaurants in America. For more information, send Mr. Fuller an email.