Lawyers need to shift from argumentative thinking to creative thinking, as the need to be right all the time is the biggest barrier to new ideas.
By Anna Marra, Project Manager, Consultant and Trainer
The legal profession is emotionally challenged, in part because it strives to combine a human-centric approach to legal services with the power of artificial intelligence.
Argumentative thinking predominates in the legal profession; lawyers are trained to adopt it and they compete through reasoning. “There is a strong Platonic yearning implicit in the practice of jurisprudence, a pervasive hope that truth is absolute and objective and that it can be discovered through dialectic, which in modern jurisprudence translates as the adversarial system” (J. Raymond, The limits of logic in legal argumentation).
However, argumentative thinking does not search for absolute truths and does not intend to design new ideas. Instead, it seeks out the best reasons to convince others of the value of an opinion.
If this is so, should lawyers reconsider the way they think? Not really. Argumentative thinking is a useful tool for its purpose, which is persuasion. However, as Einstein said, we can’t solve our problems with the same thinking we used when we created them. In other words, we can’t have argumentative thinking be our predominant form of thought, as it lacks constructive, organizational and creative energy.
The need to be right all the time is the biggest barrier to new ideas.
Argumentative thinking vs lateral thinking
Argumentative thinking, which is a legacy of the Classical era, focuses our attention on the ability to demonstrate that we are correct through a dialectic approach, but “the need to be right all the time is the biggest barrier to new ideas.”
The father of lateral thinking, Edward de Bono, warned about it in his book I Am Right, You Are Wrong. De Bono defines lateral thinking as the ability to change concepts and perceptions by shifting paradigms. According to de Bono, lateral thinking “involves an understanding of how the mind uses patterns and the need to escape from an established pattern to switch into a better one.” The term “lateral” stands opposed to the term “linear,” which describes the usual thinking process we engage to analyze legal problems. When lawyers try to solve a problem, their natural tendency is to apply the thinking process they’re most comfortable with— by doing this, they’re repeating “self-organized patterns of thinking.”
It’s time to take off the robe (argumentative thinking) and to put six thinking hats on (creative thinking). This is the title of another of de Bono’s powerful books, Six Thinking Hats, referring to the English expression, “Put your thinking hat on.”
Creative thinking is essential for problem-solving, and solving problems is the essence of what lawyers do. The ongoing revolution of the legal ecosystem, along with the challenge of redesigning the legal practice, requires creative thinking as a necessary tool to manage innovative processes.
Discussing existing opportunities is different from designing new ones or making decisions. To design new opportunities, we need to escape from dialectic and automatic thinking, and focus on deliberate creative thinking, which is precisely what we can learn with the “six hats technique.”
A “thought hat” is an imaginary hat that can help us guide our thinking on different frequencies. We use the white hat to think in a more objective and neutral way, the red hat to express our feelings, the black hat to be critical in a cautious way, the yellow hat to explore opportunities, the green hat to open our mind to creativity and problem-solving; and finally the blue hat, which is not a frequency, but a control function. But are we really able to think however we want to?
The capacity to use different thinking frequencies has a significant impact on the company’s revenue; it reduces costs and improves quality.
Deliberate thinking for better decision making
We constantly rely on automatic thinking (e.g. breathing and running) to survive without spending unnecessary energy. Yet, as de Bono reminds us, while many of us simply run, an athlete runs in a deliberate manner and trains to get better at it. Applying this approach, are we capable of thinking creatively in a deliberate way?
Training and concentration are the keys to knowing how to think, when and how we want to, eliminating the confusion that comes from mixing the different frequencies of thought.
Are we able to make a smart, fast decision when there are several alternatives that we need to consider? Today’s lawyers are problem-solvers and opportunity drivers for their clients, but have they been trained for that?
We make around 35,000 decisions each day. In “A Checklist for Making Faster, Better Decisions,” an article written by Erik Larson and published in HBR, Larson says that managers make about three billion decisions each year. Beyond the numbers, it is evident that the fast pace of the times we live in demands quick answers without sacrificing quality and effectiveness. In this context, the application of decision-making best practices can make all the difference.
In a three-month study of 100 managers, Larson found that managers who made decisions using best practices achieved their expected results 90 percent of the time, and 40 percent of them exceeded expectations.
Best practices can help overcome what Roy F. Baumeister, social psychologist and author of Willpower: Rediscovering the Greatest Human Strength, calls “decision fatigue.” This fatigue occurs after a long period of decision-making, which results in low self-control and willpower. Just like your muscles tire after a long cardio workout, your brain becomes exhausted too. As a survival mechanism, it conserves energy by making impulse decisions— or by making no decisions at all.
A problem-solving and decision-making lawyer needs to reduce this fatigue by applying another way of thinking that has an impact on revenue, focused on the speed, quality and costs of their decisions.
Anna Marra is a PM trainer and consultant for private and public organizations. Anna was pa ioneer in proposing the discipline of Legal Project Management to improve performances in law firms and iin-houselegal departments. In 2017 she became Councilor of the LPM Global Advisory Council of the International Institute of Legal Project Management (IILPM). Presently she is IILPM Accredited Training Provider (ATP). Anna is author of various publications on legal project management, corporate social responsibility, and strategy for law firms.
Note: The views expressed by the author of this paper are completely personal and do not represent the position of any affiliated institution.