The Practice of Law

On Being Decisive. Or Not.

In the 14th century, the philosopher Jean Buridan told a story about a donkey who, equidistant between two piles of hay, starved to death because he could not decide which one to eat.

We occasionally come across clients who are like that. You give them a couple of strategies to get out of the mess that they created, but they are so fearful that they cannot decide what to do.

When this happens, they often ask their lawyer “what would you do if you were in my situation?” 

A lawyer following the advice of the Law Society and their insurers, will say something useless like “I can only identify the options for you. This is your decision to make.”

On the other hand, if the lawyer has developed a client base by being useful to their clients, they will likely make a recommendation, knowing full well that if things go badly the client may point a finger at them. Successful legal careers, like other businesses, are usually not built by being completely risk averse.

Now and then you will run into a client who is incapable of making a decision. The worst case I had was a shareholder who was on the receiving end of a shotgun given pursuant to a shareholder’s agreement. He had thirty days to decide whether to buy or sell. He agonized over the decision until the very last minute, changing his mind frequently. Eventually he decided to buy and we gave the other shareholder the required notice.

The next day he called me and said that he had made a terrible mistake. He should have elected to sell. He insisted that I call the other lawyer and ask if he could sell instead. This was a terrible idea, but he could not be talked out of it so I made the call. His partner said sure, they would buy our client’s shares, but at a much-decreased price.  I thought to myself, “Wow, that was the weirdest thing that I was ever involved in.”

But no, it got worse. A few days later the client was again convinced that he had made a horrible mistake. Now he wanted to buy again. Did I ever feel dumb making the next call. Oh sure, the other side was willing to sell, but at a much higher price and on different terms. My client agreed.

Again, the client panicked. He was now convinced that his decision to sell had been the right one. I made another call. By now the other side was tired of playing along and insisted that our client buy at the inflated price that they had negotiated. Our client’s only choice was to close or be sued.  He closed the deal.

I was hopeful that I had heard the last of this, but I had not. After a few months I heard through the grapevine that he had made an awful decision and that it was my fault because I had not talked him out of it.

Someone wiser than me (J.R. Rim) once said “It’s not about making the right choice. It’s about making a choice and making it right.” My client did not get that. Many of us don’t.

That is my sad story for today.  I have occasionally heard it said that the practice of law would be easier without the clients.

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