On being ... the company you keep

By Ingrid Sapona

If you’ve ever heard a litigator at a cocktail party, you’ve probably noticed they have lots of interesting war stories and a flair for the dramatic (or comic) in telling them. Of course, being able to capture peoples’ attention (some would say being center of attention, but let’s not be cynical) and weaving facts into compelling stories is what makes a litigator successful.

Another thing about litigators is that, because the courtroom is their playground, their rallying cry is more likely to be “sue the bastards” than let’s see if we can figure out a way to solve, or get around, this problem. I’ve often wondered whether a certain personality type is drawn to litigation or whether practicing litigation for awhile shapes their personality.

Years ago a doctor friend pointed out something interesting about surgeons. My friend (a non-surgeon) explained that if there are two courses of treatment -- one involving surgery and one involving less invasive procedures -- a surgeon will always recommend cutting the problem out. As he put it, surgeons are into fast fixes instead of treatment. Something to keep in mind the next time your GP recommends you consult a surgeon!

I was recently hired by a new client -- an association that represents about 95% of all members of a particular regulated profession. The body that regulates this profession had issued a consultation paper explaining some changes it’s considering regarding how it licenses practitioners. The regulator invited parties to comment on the proposed changes.

Most of the changes were benignly administrative, but a few could end up having a significant impact on this association’s members. Naturally, the association felt compelled to comment and they hired me to edit their submission. Going into this project I did a bit of background research to understand their licensing process but I didn’t know much else about this profession.

In editing an early first draft I noticed some of their arguments were self-serving and quite argumentative. Whenever possible, I suggested alternative wording I though more persuasive and less combative. For the most part, they were receptive to my comments and changes

Then, in a subsequent draft, on one particular issue I noticed they added an argument that I thought would just inflame the regulator. The gist of it was that if the regulator were to make this particular rule change, there would be little “buy in” from the profession because they believe the regulator is being heavy-handed and unfair.

When I told my main contact in the association that I thought it unwise to put that in print, he gave me examples of some of the regulator’s allegedly unreasonable actions and then said the proposed change, “just won’t fly with the profession”. I pointed out that the professions’ buy in didn’t seem relevant because the regulator is in a position to dictate the rules. We discussed it a bit more and he said he’d think about it.

Unable to get his “won’t fly” comment out of my head, I tried to figure out how I could persuade him of the irrelevance of that argument. That evening I had an “ah-ha” moment when I began thinking about the nature of the profession and exactly what their work entails. They’re restructuring specialists. Their job is to act as go-betweens -- bargaining with creditors and debtors, trying to get parties to accept restructuring terms. Once I realized this, I “heard” his comment as a phrase he probably uses as part of his normal cajoling when trying to work out a deal.

Once I realized this, I knew what I needed to do. The next day, when we revisited the issue, I pointed out that, while arguing about what will fly might get him somewhere when trying to get someone to make a deal, responding to the regulator isn’t a negotiation. Fortunately, he saw the light and ended up dropping the argument.

Reflecting on the nature of their work also helped me accept their tendency to stonewall until the very last minute and then pull a few all-nighters to cobble together the final report. (A process I was inevitably dragged into.) I’ve never had a client who, despite having created a detailed timetable of interim deadlines, waited until we were well into the 11th hour before they got serious and focused on the matter at hand.

Just as I’ve wondered about whether litigation and surgery attracts a certain type or whether gaining success in those fields transforms peoples’ personalities, I couldn’t help wonder the same about restructuring professionals and their approach to things. Is their behaviour primarily a function of their nature, or is it mainly a reflection of the company they keep? I’ll never know -- but what I do know is that if I ever work with them again, I’ll charge a premium and anticipate some long nights at the very end of the project…

© 2010 Ingrid Sapona


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