Corporate Lawyer’s Top 10 List of Successful Outside Counsel Habits: #3 Being aggressive, bold, and courageous and beating Mario Andretti

Corporate Lawyer’s Top 10 List of Successful Outside Counsel Habits: #3 Being aggressive, bold, and courageous and beating Mario Andretti.

Note:? This week’s post it picture features my son Brady in the background (in white on the right) playing a tennis match.? An appropriate background to this article about playing to win.

3.? You are bold, courageous, and aggressive.

If you have followed this top 10 countdown, then you know that I put a premium on creativity and thinking outside of the box.? To me, the most effective outside counsel that push the boundaries of trying something new are those that are AGGRESSIVE.? Some people do not like the word aggressive because it has negative connotations suggesting that the person is reckless and rude.? You can call it “bold” or “courageous” if you want, but the point remains the same.? I want aggressive thinking (no rudeness please).

One of my most important roles is to push outside counsel to try new strategies.? Almost every legal argument or principle was a lawyer’s new and bold idea.? It was untested.? It was risky.? It could fail.? It required a lawyer and a client taking a chance.? But it succeeded and established a new principle of law, claim, or defense.? To this day, we rely on claims, theories, and defenses of law that were once based on someone’s boldness.? That is the great thing about common law – it was uncommon until someone dared to make it common.

My view is that the most successful outside counsel refuse to fall into the trap of being too conservative.? As lawyers, we do not like risk.? But too often, our desperate attempt to avoid risk makes us entirely predictable and dampers our potential effectiveness.? Every decision comes with risk.? Some more than others.? You need to be mindful of risk, weigh it, but also weigh the upside of taking the risk.? As an effective outside counsel, you should be mindful of how much of your “client airtime” is spent on talking the team out of an idea, theory, or defense instead of into one of them.

Even when you lose, you might win in another way.? A long time ago, I was watching an appellate argument and one of the panel judges was grilling the appellate counsel over a client email that had troubling wording.? In a moment that I will never forget, after numerous questions on the email, the appellate counsel defended the company by demonstrating that the wording did not mean what the Judge thought and that it had no bearing on the issue in the most convincing and courageous way imaginable.? The Judge was very displeased.? The client lost the appeal.? But I was impressed that the appellate counsel took a risk in a moment of time and stood up for his client knowing it came with the risk of displeasing the Judge.? I work with that outside counsel to this day.

Mario Andretti thinks you are on the verge of making mistakes when you are aggressive.? That is a fair point, but I also think you are on the verge of greatness at the same time.? It is about deciding which risks are the smart ones to take and which risks are better left alone so you do not crash into the wall.? In either case, you are thinking better about how you can win the race instead of how not to lose it.

-Brennan