Freeing the imperfect lawyer: Part 2

Observing and deciding mindfully

Freeing the imperfect lawyer: Part 2

In our last article, we offered the thought that there is great freedom in being aware of how we observe our world; that with this awareness, we can choose to shift whatever perceptions we hold, and which we perceive to be immutable. Let’s explore this in a practical example.

On March 10, 2020, Fabien was in need of a vacation. Six months into a new role, with two team members having left, the learning curve had been steep, the nights had been short, the rollercoaster ride had been intense – it was time to get some rest. A few weeks prior, he had decided to go to South Beach. Flights and accommodations were booked. He’d been looking forward to some sun, some sand, some cheese-filled arepas de choclo from Charlotte Bakery on Washington Avenue, some seafood from Joe’s Crab (which somehow had been closed each of the previous times he’d been), and probably some sleepless nights. That day, there were 37 COVID-19 cases in Ontario; the virus existed, but in Fabien’s social circles it still remained, at that point, a matter of theoretical concern. That day, he decided to board a plane, and to spend six days in Florida, which, just two months later, would report in a single day more new cases than the entire country had in 2 months. That day, he called his immediate leader, who acknowledged his need to go: “You’ve deserved it!” She knew that Fabien was not going to be content with her telling him he should reconsider; there was no room for that in Fabien’s world. She told him that he may have to self-isolate at home upon his return. Fabien expected it, and cracked a joke: “At the rate this is going, we’ll all be home by the time I’m back on Sunday!” There was silence at the other end of the line (it’s hard to remember, but video meetings were still a novelty back then). Fabien had not actually expected that the entire organization would indeed be sent home later that week, and that most would actually stay home for over two years; that interacting in person would become the novelty.

Lawyers spend a lot of time learning and thinking: reading; studying; writing; pleading; argumenting — structuring thoughts. Even before we start practicing law, we spend years perfecting those skills. As a profession, we pride ourselves in having benefited from a solid education. There are only 22 Canadian law schools whose program is approved for admission to the Law Society of Ontario; students from all international and non-accredited programs require that their credentials be evaluated by a committee. Do a solid education, and a heavily regulated licensing process guarantee that lawyers will only make good decisions?

We have all made decisions that we considered at some point, either before or after, as “bad”. They were made in the moment, based on a certain observation, and led to certain outcomes. When the way in which we observe the world changes, a decision that once seemed excellent can suddenly appear disastrous. Earlier, we made the point that everyone has developed a way to observe the world, and ourselves, influenced by our family, environment, social media, religion, etc. Our observations are drawn from these experiences, like so many lenses through which we view what occurs: social circle, cultural background, religious practices, gender norms, racial and sexual identities, etc. And the way we observe our world actively determines how the world shows up for us, and actually creates the reality we live in.

But the map isn’t the territory. Or to quote the words hung below the depiction of a wooden pipe by Belgian surrealist painter René Magritte in his “Treachery of Images”, “Ceci n’est pas une pipe” (“This is not a pipe”). What makes this depiction so attention-grabbing is the fact that it disrupts the stories our brain is concocting. Our brain tells us, as we see the pipe and read the words, “How can this not be a pipe? Of course it’s a pipe!” Except it’s not; it is oil on a canvas, illustrating a pipe, in the style of a billboard. It is a tool that shines a light on the notion that human beings don’t really “know” things; we access knowledge through language. In other words, our perception of the world, and the actual world, may not be the same. So, we should be careful to not get trapped in our “map of reality” when there is a “territory” outside our map that we have not considered.

We are bombarded with data every second of every day. On any given second in March, we might sense the hurried flow of air pushed from an air vent, we might notice the unusually warm quality of a winter sunlight, we might hear on the radio the latest reports on the emergence of a deadly virus, we might gaze at an allegedly non-existent pipe. It’s all there, but we cannot possibly consciously process it all. Psychologist Mihaly Csikszentmihalyi, who named and described the phenomenon of the “flow state” (also known as “being in the zone”), estimated that the mind can process about 110 bits per second. If decoding speech takes about 60 bits per second, this means the brain effectively cannot process two people speaking at once, lending scientific backing to the oft-uttered “Honey, be quiet, I can't hear myself think.”

So what do we do? We use shortcuts, based on the observer we are.

Earlier, we discussed the world Anthony and Fabien were living in, whereby a good lawyer has to have all the answers, and project an image of perfection. Consider Lawyer A (let’s call her Michaela Pratt), the embodiment of that mythical lawyer: she knows everything, has memorized everything there is to know. Lawyer A believes relationships are secondary; getting the job done quickly and efficiently, accumulating billable hours, is the ultimate goal. Now consider Lawyer B (let’s call her Elle Woods): she believes anyone can practice law (“You got into Harvard Law?” — “What, like it’s hard?”). She focuses on building strong relationships with colleagues and clients. If Michaela Pratt and Elle Woods met, they’d observe each other as terrible lawyers. Their respective world is based on different standards that exclude the other’s perspective; the other is wrong.

Somewhat embarrassingly, the world we were living in was a world that only had room for Michaela Pratt, and none for Elle Woods. That was our shortcut to deal with the complexities associated with the practice of law: we made sure Elle Woods didn’t exist as a real lawyer. In fact, every time we met an Elle Woods, we collected evidence supporting our model. Any evidence supporting the opposite view would only reinforce our perception. We were locked into the observer we were. Notice how lawyers will have different perspectives on the same conversation, to the point where, when comparing notes, they may wonder if they were in the same meeting...

So what should we do? We can’t stop using shortcuts; it’s biologically impossible. We can, however, notice them.

This dichotomy is the petri dish for biases, and has obvious implications for diversity and inclusion in the practice of law. Affinity bias: We feel better with people who are like us, because there are enough things disrupting our world as it is. Projection bias: We recognize that diversity has value, but we expect people to think like we do, and if they don’t, then they must be bad lawyers. And so many other such biases.

We can be conscious of shortcuts as we are using them. We can “check our biases” in a number of different ways. We can assess them by taking the Harvard Implicit Association Test. We can identify our physical signals for bias; how do particular situations make us feel (name the actual sensation, and locate where it shows up in the body)? We can also listen to the biased thoughts, and consider how they might affect our colleagues, our workplace, and our practice of law. Ultimately, it is up to us to decide whether these thoughts are serving us, as opposed to letting them automatically dictate our actions.

Ultimately, we should always remember that our “reality” may not be that of others. As Stephen Covey wrote in ‘The 7 Habits of Highly Effective People’, “We see the world not as it is but as we are — or, as we are conditioned to see it. When we open our mouths to describe what we see, we in effect describe ourselves, our perceptions, our paradigms.”

In March 2020, Fabien would probably have made “better” decisions had he been less focused on playing hard after working hard. Had he actually heard other perspectives, he would have been a lot more cautious. The arepas de choclo would still be on the agenda, but he may have skipped the nights spent in South Beach bars, where a disproportionate number of COVID-19 cases were subsequently reported. He maybe wouldn’t have been as perturbed by the sore throat symptoms he started experiencing on the flight back home. He maybe would not have gotten progressively more anxious when it dawned on him that, at Pearson, everyone was suddenly wearing masks (whereas not a single person in Florida was), that the price of gas had dropped by 25 percent in six days (under 80 cents a litre, versus the over $2 we are now at the time of writing!), or that he’d have to rely on neighbours to do his grocery shopping for several weeks. The next day, when Fabien picked up the phone to advise Anthony to stay home, Anthony was driving to the office with his wife, and he could practically hear the mocking disbelief. “I mean it. Stay home.” – “Okay.”

Lawyers spend a lot of time learning and thinking: none of that makes us immune to bad decisions.

Fabien Fourmanoit is Vice President, Legal, with Xplore Inc., Canada’s largest rural-focused broadband service provider. He was a winner of the Lexpert Rising Star award in 2020. Fabien is a member of the Advisory Board of the McGill Law Journal, and a Board member at Ouverti, a not-for-profit specializing in developing and incubating open-source personalized applications for social enterprises. Previously, he was Senior Legal Counsel at Bell for nearly 13 years, in Montreal and Toronto. He began his practice at Borden Ladner Gervais. He has completed the Newfield ontology coaching course.

Anthony Gordon is the CEO of FiduSure Financial Inc., a boutique financial firm that specializes in financial, tax, and estate strategies for professionals, entrepreneurs, and business owners. Anthony practiced corporate and commercial law for several years before becoming a financial advisor and tax minimization specialist. As a financial advisor, Anthony and his team work closely with lawyers, accountants, bankers, and financial advisors to provide their clients with unique financial and estate planning solutions. He has completed the Newfield ontology coaching course.

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