IMPROVING LITIGATION TEAM DECISION MAKING
Updated: Aug 2, 2021
For a spoken word version of this article go to The Advantage by Tsongas podcast.
“I pissed off one of my team members,” our client said (we’ll call her Claire). She and I were working on a case that was sizeable and required a substantial team. She pulled me aside for advice and to blow off some steam. “They just don’t understand the big picture here,” Claire yelled in a whisper. I asked quietly, “What happened?” Claire replied, “Anna thought I was moving forward with her idea—I’m not. She thinks I don’t value her ideas now. This isn’t true—I think she’s very bright. I just went a different direction.” I told her, “Give me five minutes and I’ll tell you how to fix this now, and going forward.”
Litigation teams, large and small, have work that has to get done and decisions that need to be made. One of the ways to improve performance with a litigation team is to understand, and execute effectively, three different types of decision making. When you understand these three types of decision making and educate your team on them as well, you have a common language you all speak. Decisions not only get better, people know the rules, and expectations are less likely to be violated like the situation between Anna and Claire.
The three different types of decision making with a team are: Consensus, Consult, and Command. (Here is a quick decision-making style cheat-sheet.)
CONSENSUS DECISION MAKING
Quality = Highest
Conditions = Needs the most time. Dialogue, not debate, must be facilitated with the team in a meeting.
We’ve all heard the term “consensus” thrown around but it seems that all too often I hear people describe it incorrectly. Consensus may be defined as “general agreement” in the dictionary but in this context, it has to do with support of a position by every member of a team, whether they agree with it or not. Consensus decisions are ideal because they get everyone at the table contributing.
If as a group we have to choose “path A” or “path B” and we have the time to decide, consensus is most likely the best method. Naturally, the best decision-making style takes the longest—it requires a meeting of the team members. It also requires specific rules to be followed by the leader and the team.
The leader should facilitate dialogue from the group, not mediate a debate. This is often difficult with litigation teams because the parties are in the business of being “zealous advocates.” Sometimes, someone else in the group facilitates the meeting (often someone like me). The problem with debate in this context is that it stifles a free flow of ideas. People who debate are trying to win, which means the better debater or person with more power in the group can win the debate and an inferior decision can be chosen.
First, set the ground rules with the group—dialogue only! Dialogue starts with an agreement that we all want the best decision for the litigation as a whole and that everyone first seeks to understand the others. (If you are thinking, “but my idea will always be the best one” and deep down you really believe this—I can’t help you.)
During the meeting, compare and contrast the ideas, disassociating the importance of the source. Play devil’s advocate against your own idea. Discuss the benefits and costs of each position. Acknowledge what people have said by repeating back what you think they mean so they can refine what they are trying to say without risking any sort of negative consequence. Avoid judgmental language.
At the end of a good session, the group has made the highest quality decision and everyone is bought in. They may not agree with every aspect of the decision but they support it. The group absolutely has to understand that there can be no good to the team that comes from an individual leaving the meeting and saying, “It’ll never work.” You have to have the courage to say what you believe in the meeting. Furthermore, all team members have to agree that they will only hurt the team and look selfish if they want to fire off any form of “I told you so” if the decision doesn’t pan out.
CONSULT DECISION MAKING
Quality = Good
Conditions = Enough time for a few 1-on-1s or a team meeting. Leader must make clear all opinions are valued but at the end of the day, it’s the leader’s call.
Consult decisions are when the leader has less time or the decision involves sensitive information that shouldn’t involve the whole team. The meeting with the key team members should make clear that the leader has a decision to make and they are looking for thoughts and ideas. In the end, the call is exclusively theirs, but they value the ideas of the people in the meeting.
If time is tight or the information is very sensitive, several 1-on-1 meetings is likely the way to go. It goes a long way to tell people in advance that no matter what the decision is, they highly value the thoughts and opinions of those being consulted. This is precisely what I told Claire to go tell Anna after their miscommunication. It is also what Claire now says to her team members when asking them for input this way.
Quality = Depends entirely on the judgement of the leader
Conditions = When there is no time for a meeting.
The command decision is precisely what is seems to be. The leader makes the decision and that decision is implemented and executed by the team. The command decision is ideal when time is short. Even in the flattest of organizations, there has to be some level of accountability. Someone has to make the call. When time is short, sometimes decisiveness is more important than the quality of the choice.
On a separate note, I have noticed over the years that people bring baggage to these methods. Lately the command decision seems almost “out of fashion.” But I should be clear that I think it’s a mistake to think of decision-making styles as much more than practical choices. Still, this does not stop people from thinking that a style of decision making is inherently good or bad depending on its proximity to what they are comfortable with. For example, as I write this I am looking out the window. It’s a beautiful, sunny, warm, dry day in Portland, Oregon. On a cultural scale, is the city more egalitarian or authoritarian? It is much more egalitarian and there is not much egalitarian about a command decision.
One of my friends who highly values an egalitarian view of the world challenged me on the very notion of the command decision. I provided him with a practical example, “If I say ‘DUCK!’ and you say, ‘Why?’ instead of ducking, you will be struck in the head.” Every team will have a moment where they just need to duck and trust they can get the explanation later. If you find you are incapable of trusting a leader and following orders from time to time, you may want to consider solo practice. There is clearly a time and a place for the command decision. However, there is also no doubt that is can be easily overused by those who are poor planners and those who simply value an authoritarian style. Overused command decisions lead to lower quality decision making. After all, none of us is as smart as all of us.