Freeing the imperfect lawyer: Part 3

Knowing yourself through language

Freeing the imperfect lawyer: Part 3

Our “reality” may not be shared by others. It is the result of circumstances, and of how we observe our world. In this third article of our series, we will examine how language actively shapes our reality. In particular, we will review how the ability to differentiate between facts and opinions is critical to designing our world.

One morning, early on in his career, Anthony was staring at the clock, knowing that he was four minutes and 19 seconds away from appearing in front of a judge. He had spent countless hours poring over this particular file, and had pretty much memorized the entire thing. To say he was tense would be an understatement; his palms were sweaty, knees weak, arms heavy, he was nervous; nowhere close to, on the surface, looking calm and ready, the image of a confident professional, which, in his world, was how a lawyer should be. Deep down, he just wanted this moment to pass. Negotiating contracts was his comfort zone; being in front of a judge for the first time, representing a client, against opposing counsel whom he knew for sure had a lot more experience than him, was not.

You likely know this feeling, too: the one you get when you did everything in your power to be ready, and then, when it is time to show and prove you have what your audience wants, the language of doubt comes flooding your brain, telling you that despite it all, you are just not good enough. The facts may suggest otherwise, but in this instant, you become convinced that you are just not prepared; if only you had just five more minutes to review that one thing...

Thirty minutes into his first day with a new organization, Fabien was informed that the lawyer on his team who was responsible for mergers and acquisitions had accepted a position outside the company. It had been 13 years since Fabien had last touched an M&A deal – during his articles. Three transactions were in flight. Suffice it to say, Fabien had some trepidations about this, which quickly ballooned into a case of imposter syndrome. This was only compounded when a VP of finance for the organization sat down in his office, leaned back, and proceeded to ask him his opinion on some of the pointed drafting in one of the asset purchase agreements… That conversation lasted three hours (or at least it felt like it did!), during which Fabien’s internal discourse alternated between: “How am I ever going to figure this out?”; “How would I ever have known this?”; “Why is this happening?”; “Have I made a mistake?”; “Will everyone think I have made a mistake?”

German philosopher Martin Heidegger wrote: “Language is the house of being.” It is through language, whether internal or external, that we give meaning to existence; not just because we use language to describe our environment, but because we also use language to generate our environment. The families we are born into, the personal experiences we have had, the people we have befriended, the communities we have joined, the schools we have attended, all of the various groups we have been part of have contributed to a style of communication that creates the person we are today, and the lawyer we have become. As individuals, we develop our own unique ways of being; our point is that this way of being comes from the language we have inherited and cultivated.

One powerful way to illustrate this is by contrasting two speech acts that we often confuse: assertions and assessments. For simplicity, let’s call them facts and opinions, respectively. Many of our ideas around what is good or bad, just or cruel, wise or stupid, beautiful or ugly, are based on the assumption that such notions can be declared objectively, independently from the observer. Let’s examine this.

By facts, we mean a statement that usually comes with specific evidence and is either true or false; by opinions, we mean a judgment, a verdict, or a view. “I graduated from law school” is a fact; if I am a practicing Canadian lawyer, I must have graduated from an accredited law school, or otherwise have my degree recognized. On the other hand, “I am a great lawyer” is not a true-or-false statement; it is the opinion of a particular observer with a certain history and certain standards, which may be at odds with those of others.

When Anthony went to court having memorized every single minute detail of the case, most people would have taken the view that he did all he could to prepare. And yet, for Anthony, that still did not suffice; once again, Anthony’s view of the world was one where the lawyer has all the answers, and gets it right every time. He was also observing his circumstances from an opinion of “I’m not ready”, as opposed to an opinion of “I have done everything possible to prepare for this case.” This is important because as humans we only know things as we observe them. The way we observe the world creates our reality, and along with it, different experiences and possibilities.

When Fabien sank into imposter syndrome, he assumed everyone would soon recognize the colossal mistake they had made in making him accountable for M&A. He discounted the possibility that his employer would immediately recognize that he had lost a key resource. In fact, he was swiftly provided with a network of support – from outside counsel well-versed in the matter, to internal resources, including that VP of finance, who ended up walking him through the specifics of each deal.

When we treat our opinions like facts, we make them the truth, and we make those who do not believe that truth wrong, which leaves no opportunity for negotiation with ourselves or with others. We confine ourselves to the four corners of the “reality” we have created based on how we view the world.

If language is the house of being, and opinions are a room in that house, they're definitely the kitchen. Our daily work as lawyers is shaped by opinions, which we either dish out or receive. We are constantly assessing things: the plausibility of the facts being presented, the likelihood that a party will take a certain position, the weight of a particular precedent, the quality of a draft, etc. We are also constantly assessing others: the honesty of our client, the dependability of our colleagues, the integrity of opposite counsel. And we are also constantly assessing ourselves: our ability to be creative, to inspire trust, to succeed. All of this happens in language, and it does not have to be spoken out loud to still be very real to us: we declare that a precedent was poorly decided; that a senior partner did not provide adequate guidance; that we’re not good enough.

These opinions, even if they reside wholly within us, without any conscious external expression, create our reality. They naturally occur within us as part of the linguistic structure we learned with family, in school, and as we built our practice. They are automatic, they won’t be stopped, and they will inform how we observe the world, the actions we take, and ultimately, the outcomes we achieve.

“Great. You’re telling me I’m stuck with decades of prejudice and my fate is sealed. I might as well give up now.”

Not at all: There are two things you can start doing right now to make sure you create the future you want: to recognize an opinion as such, and to make sure you are not treating it like a fact.

One of the most damaging things we do to ourselves is to confuse our opinions (or someone else’s) with facts. When we treat an opinion as a fact, we trap ourselves and others in a set version of reality, where the opinion inherently becomes a part of the object of the opinion.

Here’s an example of an opinion that might be delivered by a commercial lawyer’s inner monologue: “This negotiation did not go as planned. I should have raised this specific point. I failed. I’m a failure. My client said they were pleased but I know they think I’m an idiot. My elementary school teacher was right, I was never the sharpest tool in the shed. I’m an impostor.”

If at that precise moment we pause and remember this text, we can interrupt the reality being created by this internal monologue. Is this a fact, something that can be demonstrated as true or false? Or is this an opinion, the quality of which rests within the person making the observation, and which by nature will be affected by that person’s emotions and moods, as opposed to being based on a set of criteria established by the community?

Once we recognize that something is an opinion, we can question the factors that inform this opinion, to ensure it is properly substantiated. In particular, we can ask five questions:

(1) What purpose does this opinion serve?

(2) What are the standards being used to make this opinion?

(3) What facts support this opinion?

(4) What facts contradict this opinion? and

(5) Do others share my opinion?

The strength of our answers to these questions will determine the degree to which the opinion is substantiated. If it turns out that a negative assessment lacks evidence, then suddenly, it’s a lot easier to let go of it.

After the hearing, as he was headed for the elevator, Anthony felt relief, and even a hint of pleasure – “that didn’t go so bad after all.” He knew he did not want to become a litigator, but the experience showed him he was more prepared than he thought.

Fabien’s three acquisitions closed. Not without a hitch, because that never happens… And then, after those three, there were many more… and he started enjoying them.

All that worry… based almost entirely on opinions… over things that turned out okay. Considering an opinion for what it is – namely, not a fact – offers freedom, and allows us to observe the world differently. If an opinion does not serve us in designing our path, we can choose to move past it. This creates room for possibilities that previously were not accessible.

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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