My latest mental exercise is what I call the Five-Second Rule. The Five-Second Rule is that I only want people working for me if they would pass the following test, which I call the Five-Second Test because I am not especially creative today:
(1) A wizard, angel, genie, dragon, or other magical creature that is both credibly capable of granting wishes on a whim and has a reputation for capriciousness, walks into the room the subject is in.
(2) The magical creature offers the subject a choice between two options:
(a) At the subject’s request, the magical creature snaps his/her/its fingers, in which case there is a 1 in 1,000 chance that the subject will become one of the 10 best people of their generation at whatever they wish. Lawyer, baseball player, rock star, scientist, whatever they like. The other 999 out of 1,000 cases, the subject will instantaneously and painlessly die.
(b) The magical creature doesn’t snap any fingers, the deal is off the table, and the magical creature will not return.
(3) To pass the test, the subject must request that the magical creature’s fingers snap within five seconds or less after the creature finishes explaining the terms of the choice.
This is, importantly, not a test of one’s work ethic, dedication, or even whether the person likes being a lawyer at all. It’s instead a test of complacency, status quo bias, risk tolerance, and the ability to make important decisions quickly.
I’m still figuring out a way to work this into job interviews, as I figure if I ask people outright, they’ll just tell me what I want to hear. So, I need some way to simulate it, but realistically I’d probably need at least a smoke machine and some very elaborate costumes, and if nothing else, this would never play over Zoom.
Why The Five-Second Rule Is An Important Test
I’d be willing to be flexible here in some circumstances — as people get older, they tend to lose their edge for various reasons, plus the cost-benefit structure of the magical creature’s deal shifts — but attorneys in the first few years of practice really have no excuse. And it’s a great test because it hits four separate character traits that are important in order to be a good litigator.
First, the Five-Second Rule most directly tests complacency. No one wants lawyers — or anyone else — who are satisfied with mediocrity. As always in life, you have to go big or go home. You goals need to be total victory.
Second, it tests status quo bias. The expected value of asking the magical creature to snap his, her, or its fingers over not snapping them is objectively higher. Really, it’s all upside from the subject’s point of view because if they lose, they’ll be dead and will never know. But the test is set up so that the lower expected value position is an easy default to fall back on. Part of the magical creature’s presence in the test is to sell the credibility of the offer, but it’s also to shock the subject out of their comfort zone. Someone with an overly strong status quo bias will instinctively retreat to the safety of the default position, failing the test.
Third, the Five-Second Rule tests risk tolerance. Someone who is risk-averse will instinctively overweight the value of the the safe choice of no finger snapping, instead of correctly weighting the risk of each. Such people also will likely underweigh the cost of the years, even lifetime, of regret if they turn down the offer.
Fourth, and perhaps most importantly, the Five-Second Rule tests the subject’s ability to make decisions quickly. Five seconds is recognized by multiple other scientific rules as the time in which the human brain effectively makes quick decisions unhindered by further analysis. This also dovetails with Dan Kahneman’s System 1 versus System 2 thinking. And quick decision making is, of course, a crucial skill for litigators.
Applying The Five-Second Rule To Your Practice
Another great thing about the Five-Second Rule is that it’s easy to apply to your own practice. While a practical test is especially difficult in these times, you probably know your staff well enough to make an educated guess at how they would respond if put to the test. If you think they’d fail — or if you think you’d fail — take this opportunity to make some adjustments.
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.