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Thinking Like a Lawyer, Gaming Like a Litigator, Advising Like a Counselor

3-dimensional chessWhy would you hire an attorney rather than do it yourself with help from a CD or website? Aside from providing knowledge and skills you may not have, a good attorney should help you by thinking in certain ways. Let’s examine some of those ways.

Attorneys and sometimes other intellectuals get teased that they “think like a lawyer.” (Perhaps the real problem is “talking like a lawyer,” which is boring, incomprehensible, or both.) “Thinking like a lawyer” is the point of three expensive years of law school.

A lawyer approaches a situation by spotting problems and issues. Then the lawyer explores answers developed by statutory or case law and helps the client implement the answers. If someone is injured at your business, “thinking like a lawyer” helps to identify all possible claims and defenses. “Thinking like a lawyer” involves a pessimistic view of life, designed to identify everything that could go wrong. This mindset may not go over as well at parties as at the firm. But you do want your lawyer to spot and solve core legal problems.

“Thinking like a litigator” is a bit different. While “thinking like a lawyer” identifies the core issues and legal answers, “thinking like a litigator” is needed specifically when there is a lawsuit. A lawsuit mixes up core legal problems with practical problems, a lot of different personalities, and very complex procedural rules. Litigation is like chess in three dimensions. It involves strategy, finessing of personalities, ability to negotiate, and understanding and using the procedural rules to the client’s advantage. A good litigator must understand the core legal problems, but may never actually focus on them, depending on whether the litigation can be resolved on some procedural point or in negotiation. If the person injured at your business sues you, you need an attorney to think like a litigator about facts, personalities, and strategy as well as law. If you are unfortunate enough to be in the chess game of a lawsuit, you want someone who can play the game in multiple dimensions.

Finally, there is “thinking like a counselor.” A lawyer can identify every potential problem in every possible permutation of your situation, but that is not much help, unless you have unlimited time and money. A lawyer who is a wise counselor will identify which problems are important and which ones are not, which are urgent and which can wait, and which need a legal answer (and hence a lawyer) and which would be better solved by some other person or some other approach. For instance, you may be able to prevent an injury by creating a safe environment, avoid a lawsuit by your care of the injured person, or end a lawsuit by mediating. A wise counselor sees your legal problems in the context of your whole business or personal life, and helps you solve them that way.

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