Don’t be a Peter
Effective lawyers avoid the trap of being a Peter, writes Samuel J. Woff.
An odd childhood
Peter grew up in a strange household. Like many of us, he received lessons and parables from his parents, who cared for him deeply, but unlike the bulk of the population, Peter’s lessons consisted not of fairy tales and motivational triumphs, but entirely of cautionary tales of woe.
Peter was told, ad nausium, about:
the time a shark took a swimmer from the beach last year;
how a neighbour three years ago was struck by a car while cycling;
the occasion, when travelling to rural Australia, that the entire group developed dysentery from drinking tank water;
of every recorded shipwreck, in chronological order, ticking off a new vessel each night.
And so on and so forth. His parents considered they were providing him with cold hard facts about the world, and looked down upon other parents who swaddled their children from reality. “They are moddle-coddling them”, they huffed, “and not preparing their children for real life”.
Unsurprisingly, as Peter grew up, he did so with a fair (his parent would say ‘healthy’) degree of distrust of the world around him. He rarely left the house. When he did, he looked fearfully around at each step, as if expecting a sniper to pick him off from afar (his parents, naturally, had told him all about the history of assassinations). In consequence, Peter lived a dim life — no sport (too many concussions), no intimate partners (the most likely to murder him), no car (an obvious death trap), no flying (again, an obvious risk) and definitely no boats (Peter was in fact surprised any had survived the litany of shipwrecks he was told about). He lived the live of a reclusive hermit, rarely going out, boiling all his water (no dysentery for him), and was generally distrustful, even terrified of the world around him.
His neighbour (not friends, too higher a chance of betrayal) called him “Peter Paranoid” and mostly ignored him. He was tiresome to be around. When they asked his advice about doing anything, Peter’s response was inevitably “don’t do it — too risky”. This irked his neighbours, Peter’s constant predictions of doom and gloom did, and so they generally bypassed him completely, and on the odd occasion they did seek his advice, they generally ignored it. “He’s too crotchety, negative and sceptical”, they would complain. “His parents warped his mind, by only focusing on the bad in life, and not all the good things”.
Peter of course was dimly aware that there were good things in life, but was too indoctrinated in the religion of pessimism that they rarely factored into decision making or advice giving.
Peter at law school
We might all smirk a little about our titular Peter and his unrealistically pessimistic ways and friendless life. Yet we must be wary of the obvious glass house.
With some only minor tweaks, the tale of Peter’s upbringing reflects that of the training of lawyers. Peter’s parents told him tales of woe and misfortune, which might seem slightly misguided, yet law school does exactly the same thing to all young law students. The study of law is predominatly based on the study of historical cases, that is, examples from the past where (usually) something bad has happened and two or more parties get into an argument about who should pay for it. We spend years studying, discussing and being examined on our recall of examples where things have gone wrong in commerce, and then we are let loose on the commercial world to be advisors and confidants.
And what should we expect about the nature of that advice? Well, just like no one could expect anything else but pessimism from Peter given his upbringing, equally, there should be no surprise that the most common form of legal advice is “be careful of this and that, and this too — it’s risky out there in the commercial world”. Yet our advice is skewed, and based on a one sided study of the situations where things have gone spectacularly wrong, without there being any countervailing study or consideration of where things have gone spectacularly right. Those sort of business triumphs are reserved for MBA students, not law students.
One imagines that if Peter ever attended law school, it would be a seamless transistion for him. “I knew the world was risky”, I can hear him say, “and my pessism is entirely vindicated. Tell me again about the snail in the bottle”. (Peter of course didn’t drink carbonated soft drink because it was known to cause cancer).
Don’t be a Peter
The lesson here is relatively simple. We must recognise that there is a bit of Peter Paranoid in all of us, simply by virtue of our training and detailed study of when things have gone wrong.
It’s not that such lessons are false, by no means. These bad things that gave rise to litigation undoubtledly did happen, and it is valid to have them in contemplation when advising about current best actions. The problem stems not from the inaccuracy of the cases we are taught, but because the curriculum, like Peter’s formative years, is so hoplessly one-sided. We only learn and discuss the bad, never the good.
It is therefore no surprise that our advice reflects this. When clients complain that advice is “uncommercial”, they are essentially saying “while that might all be legally correct, it is overly pessimistic and not calibrated to my real situation where I must consider the benefits, as well as the risks, of (say) getting on a boat”. And those rare lawyers who are able to obtain a degree of balance in their advice, when risks and benefits are weighed are inevitably preferred by their clients for their pragmatic real world, balanced, advice.
The rest of us are simply left like Peter, sprouting doomsday predictions to anyone who will lesson, and generally being ignored by everyone.
Hence the takeaway: as lawyers, when being lawyers, don’t be a Peter. It’s fine to weight risks and benefits and decide, on fair consideration, something is too risky. It is not fine, however, to simply advise “don’t do it” because you have only ever focused on the shark attacks, assassinations and shipwrecks, and never been raised to consider the other side of the coin.
About the author
Samuel J Woff is a commercial construction lawyer and construction litigation specialist, speaker and published author. He has broad experience across a range of construction litigation matters including domestic and international arbitrations, litigation in the Victorian Supreme Court and security of payment adjudications.
Copyright 2023 Samuel J Woff
