I spent much of the past two months in the great state of Georgia, which had many benefits, not the least of which was Publix, one of the greatest supermarket chains on Earth. Publix presents its lucky shoppers with many delights, including freshly made sweet tea, a thoughtfully curated deli selection, and, of course, a highly regarded made-to-order sandwich program.
Publix’s greatest weakness, however, is that same sandwich program. Their workers, at least at my location, were unfortunately not fully trained in the sandwich arts and would constantly seek over-feedback throughout the entire process. This is, of course, a far-from-optimal dining experience. The best dining experiences are where the chefs spare their customers the crippling costs of decision fatigue while utilizing their own far-greater food expertise to deliver the best possible result.
Modern menus are barbaric: I don’t want to know the ingredients in what I’m eating; it ruins the surprise, and I’m wildly unqualified, as are most diners, in evaluating them and their interplay, especially compared to a chef who has not only dedicated his life to developing that expertise, but has experimented with this exact recipe, maybe for months or years, to achieve the desired result. Eleven Madison Park made a brief run at fixing this problem with its grid menu back in 2010, but it only lasted about two years, presumably due to paralyzing cultural effects of the tyranny of choice on the Dunning-Kruger-affected dining crowd.
Publix, like Subway and some similar sandwich shops, tries to make a feature out of the passing off of decisions. The sandwich worker asks for input on every minute step in the process: the type of bread you want; whether you want it toasted; the type of meat; the type of cheese; the vegetables you want; the condiments you want; the type of mustard you want; even whether you want the sandwich cut or not. And worst of all, the workers generally refuse to respond to instructions to exercise discretion. No matter how many times you tell them to use their judgment or do whatever they think best, they just keep relentlessly asking you for your micromanaging feedback in the next item on their checklist. It’s truly infuriating.
Even more infuriating is when lawyers do this.
Why It’s Terrible When Lawyers Act Like Publix Workers
Lawyers are paid to exercise their judgment, and this permeates all aspects of the job. It goes to what arguments to make, how to make them, reading the audience in every paper or court appearance, determining what the client needs, evaluating the merits of various claims, and countless other decisions small and large. Someone told me once that the worst possible comment in a lawyer reference check is a concern about judgment, and for good reason: the job is pretty much all judgment calls.
As lawyers get more senior, the job, like many, becomes increasingly about judgment calls until it’s almost nothing else. Many lawyers struggle with this or just try to avoid it altogether, often resulting in CYA behavior, creation of needless work, and general paralysis. Either way the result is usually very bad.
But the importance of judgment extends to the most junior levels of the profession. Even a basic analysis memo is both excruciating to read and wildly unhelpful if it doesn’t make some thoughtful calls on what arguments to focus on, and, most of all, take a position on the merits of the different positions. Beyond that, even the smallest junior task requires some exercise of judgment, even if you don’t realize it. You have to decide how to start the research, how to prioritize various assignments, how to format the document to make it look best, and a million other things. As a great philosopher once said, If you choose not to decide, you still have made a choice. You’re either using your judgment, or you’re making bad calls by default.
How To Stop
If you’re a junior attorney thinking that you’re somehow being respectful or deferential by not making decisions, you’re probably wrong and should stop. I always tell people not to come to me with questions — they should come with proposed solutions. That way, even if it’s a bad solution, it’s usually quicker for me to change it than start from scratch. And about as importantly, they get practice thinking in solutions. Thus, not, “should I include a section about the rule against perpetuities in the brief?” but rather, “I think I should include a section about the rule against perpetuities in the brief because the statutes of Mortmain are highly relevant to the arguments that the other side made in their brief on page 27.” In that example, obviously the hypothetical junior attorney is wrong — the rule against perpetuities is never relevant to anything in the other brief — but he also exercised a heck of a lot more more critical thinking than if he’d just asked the question.
So whatever you do, start flexing those critical thinking muscles any time you can.
Matthew W. Schmidt has represented and counseled clients at all stages of litigation and in numerous matters including insider trading, fiduciary duty, antitrust law, and civil RICO. He is a partner at the trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at matthew.w.schmidt@balestrierefariello.com.