by Neil Hamilton and Aaron Knoll
President Obama’s June 2010 firing of General Stanley McChrystal as top commander of U.S. forces in Afghanistan yields a lesson from which any professional can learn: regardless of your career stage and overall job performance, if you do not actively work at growing your professional judgment by appropriately reacting to, reflecting on, and learning from your mistakes, you are always susceptible to the consequences that follow.
General McChrystal was relieved of his command after a Rolling Stone article published disdainful comments that he and his advisors made about the President and administration officials. In reaction to the comments, the President said, “I think it’s clear that the article in which he and his team appeared showed poor judgment,” and Defense Secretary Gates criticized General McChrystal’s actions as “a significant mistake.”
Imagine now that you were General McChrystal’s lawyer. He had made similar public relations missteps in the past and your role would have been to help him make sensible and reasoned judgments to prevent the same mistakes in the future. For lawyers to carry out this role effectively, however, they must foster and develop their own judgment in order to provide good counsel. We are beginning to understand how people grow in terms of judgment.
To internalize the disposition, habit, and skill to acquire and apply good judgment, lawyers must engage in a life-long process of learning from mistakes. The consequences of our mistakes exist on a spectrum. The large majority are embarrassing or disappointing but do not merit punishment because their scope and impact are insignificant. Some require warnings, while more serious mistakes require professional sanctions such as termination, suspension, reprimand, or punitive reassignment. Finally, for the most terrible and serious of our mistakes, we may face civil or even criminal liability.
The process of learning from our mistakes occurs principally through an action-feedback-reflection loop, one in which the person focuses on specific skills, such as active listening, and then solicits feedback from others and reflects on that feedback to learn from failures. Lawyers must work to understand the causes of mistakes, mitigate their effects, focus on risk management to avoid such mistakes in the future, and create cultures in the professional firm that encourage reflection and growth. They then should help clients do the same.
Genetic Interaction and Good Judgment
How then should we begin to perceive this process of professional growth? A new book offers fresh insights on how we acquire good judgment and discernment. In The Genius in All of Us (2010), David Shenk focuses on genetics, and he rejects any notion of innate gifts and talents or genetic predetermination. Rather, he argues that we should view our character and physical traits as products of “dynamic development,” in that our genes and environmental stimuli constantly interact to produce ourselves and our successes in life.
This epigenetics approach replaces the old Mendelian or nature v. nurture paradigm. Who we are is not dependent on a DNA blueprint; rather our genes are only expressed when they are activated or amplified (turned off or on like a switchboard) by environmental stimuli or other genes.
Consequently, intelligent and talented individuals are not born geniuses; they are not endowed with gifts. Rather, their skill sets are the products of slow and continuous developing interactions between genes and the environment that occur over a lifetime.
Unfortunately, Shenk concludes, few ever come close to reaching their true potential. The potential for greatness and brilliance always exists, but we must unlock it through our own free will and active choices in order to see it come to fruition.
Besides long-term hard work and deliberate practice to refine those skills at which we are least adept, Shenk argues the most important mechanism in the professional growth process is “successive refinement with feedback.” He writes, “You have to want it so bad that you are not only ready to fail, but you actually want to experience failure: revel in it, learn from it. It’s impossible to say for how long you will have to do these things. You cannot know the results in advance.” This perseverance through failure, recognition of mistakes, and development of ways to capitalize on mistakes through feedback and reflection is ultimately key to maximizing our true genetic potential.
There is one aspect of Shenk’s argument, however, that is troubling. At one point he suggests, “You have to want it, want it so bad you will never give up, so bad that you are ready to sacrifice time, money, sleep, friendships, even your reputation.” As I pointed out in my February 18, 2008 article “Learning from Bad Judgment and Mistakes,” Professor Hank Shea has synthesized lessons learned from white-collar criminals that teach that this all-or-nothing approach leads to disastrous judgment and risky consequences. Above all else, Shea warns that you must honor your reputation, preserve your integrity, and exhibit courage to do the right thing. (Visit the Holloran Center’s website to read the entire 2008 article and other relevant materials at http://www.stthomas.edu/ethicalleadership/.)
Consequently, an action-feedback-reflection loop is necessary for professional growth, but people can only engage in that process if their professional and personal lives are in balance and they do not check their ethical identities at the door.
Ultimately, our ability to internalize good judgment rests on our ability to unleash the universal potential inherent in ourselves to reflect, implement lessons learned, and work hard to improve.
Creating Cultures that Maximize Growth and Manage Risk
So how should the legal practitioner apply this new perspective on professional growth to the firm environment to improve outcomes and prevent mistakes?
Shenk would argue that senior lawyers be mentors to the junior associates to encourage the disposition, habit, and skill of seeking feedback and reflecting on mistakes. Because intelligence and skill develops, those more experienced lawyers must believe in their associates, support but not smother them, pace and persist, set high expectations, encourage a growth mindset, and both encourage and model learning from failure.
To manage risk in the firm, senior lawyers must work to define and draw attention to challenges, monitor and modulate those challenges, and create cultures in the workplace which provide feedback and reflection on mistakes made.
Firm leaders can also draw from the lessons learned from Shea’s work to create organizational cultures that effectively manage risk.
Junior associates should be to encouraged report the wrongdoings of others without fear of reprisal. They should be taught to never execute a fraudulent document, never compound or hide their mistakes, and should be provided an avenue for counsel if they are told to follow directions they believe to be unethical.
These lessons can be utilized to create organizational cultures that manage the risk of making mistakes and help lawyers learn from them to grow in terms of judgment. This in turn will increasing the efficacy of our counsel to our clients because the quality of our advice depends on the wisdom of our professional judgment.
Aaron Knoll is a 2L at the University of St. Thomas School of Law and a research assistant to Professor Hamilton.
