What Were They Thinking? Lessons from Legal Missteps
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The Value of Learning from Mistakes
While it's often said that we learn from our own missteps, there's a certain advantage in reflecting on the errors of others to glean wisdom.
In my professional journey, I've grown weary of the endless parade of "best of" awards. Rarely does a week pass without a law firm being honored for some achievement.
Though in-house legal teams may not garner as many accolades, we still celebrate milestones like top law departments, general counsels of the year, and the ACC's Top 10 30-Somethings (an event I had the privilege of judging). The sheer volume of these awards is staggering.
That said, it's not that the firms, departments, or attorneys recognized aren't deserving; many truly excel and warrant acknowledgment. These awards serve as a fleeting boost to one's self-esteem, a momentary thrill of recognition, networking opportunities, and a nice addition to one's resume, reassuring us that the countless hours invested in our careers weren't for naught.
However, the insights gleaned from awards are often limited. The fact that Person X at Firm Y received the majority of votes might imply various scenarios. Perhaps voter turnout was low and their marketing team excelled in rallying support. Alternatively, judges could have been uninspired or ineffective. Or, it’s possible that a donation to the voting committee’s favored charity played a role.
Assuming the winner is indeed a stellar lawyer who delights clients, what does that mean for me? How does it aid in my quest to enhance service? I find it far more enlightening to understand the blunders of the least effective lawyers.
What I truly wish to uncover is: Who are the least effective lawyers, and what actions led to their notoriety?
Flagrant public blunders can yield invaluable lessons. While we often learn from our own errors, it’s much less daunting to derive lessons from the misfortunes of others.
Surprisingly, there are far fewer lists highlighting the "worst lawyer of the year" or the "biggest legal blunders of the decade." This might not be shocking, considering the litigious nature of the legal profession. Seeking nominations for a "worst lawyer" list seems ill-advised, though it might attract advertisers to your award publication.
The closest parallel I can think of is the occasional compilations by law firms of the most substantial fines and settlements incurred by companies due to enforcement actions. These penalties stem from severe misconduct and mismanagement, yet individual accountability is rarely highlighted. In recent years, major corporations like Airbus, Petrobas, Ericsson, and Telia faced fines exceeding a billion dollars each for bribery. But can you name any of the individuals involved?
Understanding the thought processes behind such significant decisions would be fascinating. You don’t encounter issues of that magnitude without some level of senior management misconduct, whether through direct involvement, negligence, or a willful ignorance of the situation.
What prompted their decisions? Would we have been tempted to act similarly?
The Annual "What Were They Thinking?" Awards
To promote ongoing growth and learning, I propose the establishment of an annual "What Were They Thinking?" list focused on legal counsel involved with companies and organizations that face public crises.
We don't need to crown a single winner, nor should we belabor the point by labeling anyone as the "worst lawyer."
We must approach this with humility; what may seem like an obvious error in hindsight was likely far from clear at the time. We’re discussing intelligent, accomplished individuals who were striving to do their best under challenging circumstances—not inept or dishonest individuals.
Criteria for inclusion on this list could include:
- A deliberate decision (or failure to act) leading to significant corporate damage, highlighting avoidable moments worthy of scrutiny.
- The public awareness of the harm caused, as many negative events transpire without public knowledge.
- The involvement of legal counsel in decision-making, indicating their potential influence on outcomes.
With these parameters in mind, I’ve brainstormed a few potential candidates:
- Disney's counsel, who allowed the CEO to declare the company would actively fight against a democratically supported law in Florida.
- Twitter's counsel for suppressing news about Hunter Biden's laptop shortly before the presidential election, casting the platform as biased on a matter of national importance.
- Boeing's counsel, for permitting a scenario where safety officials felt their concerns were overruled by business priorities.
- The Motion Picture Academy's counsel, who deemed a 10-year suspension for Will Smith at the Oscars appropriate while allowing him to keep his award.
The political landscape is so charged that I empathize with companies that stumble, however egregiously. The pressure to take a stand can be overwhelming, and I suspect many organizations have safety officials who feel undervalued and under-resourced.
I would also like to nominate Credit Suisse’s counsel for their failure to manage either the company’s internal compliance culture or the dissemination of damaging information to the media. Any organization can face scandal, and ongoing issues are not uncommon. However, when a company consistently makes headlines for scandals over several years, something has clearly gone awry.
I’m curious to hear your thoughts on who else might belong on this list.
Best wishes.
PS: At the time of writing this, Credit Suisse had yet to collapse and be acquired by UBS. While I felt vindicated, it’s evident that no one appreciates the messenger of bad news, especially when they turn out to be right.
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The first video titled "What The Heck Were They Thinking?! - Episode 31" delves into various blunders made in the professional realm, serving as a reminder of the lessons we can learn from others' mistakes.
The second video, "Commercial for What The Heck Were They Thinking with Larry Holmes and Dr. Jarrod Spencer," provides insights into the importance of reflecting on professional missteps and the value of learning from them.