Lessons From Behavioral Science: Collaboration is Essential, but You Have to Know What You’re Doing
Collaboration is an indispensable skill for attorneys. Transactional attorneys must be versed in the art of the deal and litigators must be capable at negotiating settlements or plea bargains. And legal teamwork isn’t limited to interactions with opposing counsel. Bigger cases require that firms and other legal organizations assign multiple attorneys to work collaboratively; on the biggest cases, clients will sometimes hire multiple lawyers or firms. In fact, appreciation of the benefits of collaboration has led companies like Cisco and Pfizer to create frameworks to enhance collaboration. In Pfizer’s case, between various outside counsel as well as with Pfizer itself; in Cisco’s case, to develop open-source best practices. More recently, there has been a rise in different lawyers working on different phases of a single case, such as when a client purchases unbundled legal services.
Personally, although I am the only attorney staffed on most of my cases, I regularly collaborate informally with colleagues. Among other things, their feedback helps me hone legal arguments, fine-tune case strategy, and more effectively communicate with witnesses, opposing counsel, judges, and others.
But, one very common form of collaboration, group brainstorming, has consistently come under heavy criticism from researchers who have cast doubt upon its efficacy. One recent study suggests that a major downside of group brainstorming is “cognitive fixation,” the stifling effect on individual creativity yielded by exposure to others’ ideas. Of course, these results are not an indictment of collaboration, just a reminder that you have to know what you’re doing. As leading design consultant Tom Kelly observes, collaboration is a highly skilled endeavor, “more like playing the piano than tying your shoes.” Starting the collaborative process with a brainstorming session may be counterproductive. But if everyone prepares for a meeting by developing ideas for presentation and refinement to the group, cognitive fixation is not a threat.
Indeed, Professor Robert Sutton, an ardent defender of brainstorming, points out that brainstorming’s value is as part of a dynamic collaborative process, which alternates between individual and group work. That alternation is fluid however: the team might formally meet periodically, but in between there might be frequent and productive informal interaction by team members as they plug away at their individual assignments. Or, as Sutton points out, even the meetings themselves might blur the lines between individual and group work. Team members may “zone out” in the course of the meeting, following an individual train of thought that branches off from the main discussion. Or the meeting may even productively devolve into multiple related but diverging discussions between sub-groups within the team, perhaps resuming formal status once those sub-group discussions had run their course.
In my own practice, I regularly alternate between traditionally individual legal work (such as investigation, research and briefing), internal crowdsourcing (such as use of my office’s brief bank and internal databases, or group emails seeking input on thorny issues), and direct collaboration (such as dropping into the offices of my supervisors or colleagues to talk things over, and more formal collaboration such as team meetings). Without question, it has taken time to learn how to do this effectively. Although, I am inclined towards collaboration, I received virtually no training in law school or as a new attorney on the topic; the only exception was an excellent course in negotiation and mediation with the inimitable Carrie Menkel-Meadow. Moreover, I had to learn how to collaborate effectively given my casework’s specific idiosyncrasies and the workplace setting. And, of course, it would not have been possible without an office setting that recognizes the value of collaboration and supports it. I have no doubt that I am fortunate to have worked in such a setting. My work and my development as an attorney have benefitted immensely from the collaborative opportunities that I have been able to cultivate.
This raises the question of what it will take to increase effective collaboration in the legal field. The legal profession is slow to change, and when it does, it is generally driven by the demands of its clients, for obvious reasons. Accordingly, corporate leaders such as Pfizer and Cisco are probably the best bet for progress on this front. There is precedent for belated adoption by the legal world of best practices from the business world; for example, law firm attention to marketing has gone from virtually non-existent to ubiquitous. And law schools, the ABA and law firms are showing more attention to the importance of practical training. So, there is reason to hope that someday soon skilled collaboration will not be an art that lawyers are left to learn purely by trial and error.