The following is a book review co-authored by professional colleagues, Monique McKay and Robert Creo. Ms. McKay and Mr. Creo are the co-founders of the Master Mediator Institute, which is a non-profit organization that allows mediators, executives, negotiators and advocates to connect with leading scientists and academics to explore cutting edge theories about human behavior. MMI presents Immersion Courses for intellectually curious mediators and executives who seek a greater understanding about the science of decision-making, neuroscience and human behavior. Ms. McKay is also an active collaborator with the Business Excellence Solutions team.
Last spring, I had the pleasure of meeting Randy Kiser, whose new book is discussed in the review below. Mr. Kiser’s extensive research into the psychology of settlement and the sources of settlement error that attorneys are prone to, is fascinating and has been extremely helpful to my work as a trainer for attorneys around the country.
It is my sincere pleasure to feature Ms. McKay and Mr. Creo’s article in this posting — BJM
Book Review: How Leading Lawyers Think” by Randy Kiser
“How Leading Lawyers Think” by Randall Kiser is a rare inside look at decision making, mediation, negotiation and case evaluation from the perspectives of leading attorneys who have successfully taken thousands of cases to trial. Their collective experience provides engaging, insightful perspectives about how cases are built from the initial client meeting, through settlement negotiations and the factors that impact the presentation at trial. Lawyers, mediators and other professionals in the legal field will find useful insights to become better decision makers, facilitators of decision making and advocates in the justice system.
Randall Kiser created a study group from a pool of 8,114 attorneys using a rigorous review process and selected only those who made accurate case evaluations and achieved financially effective results at trial. By conducting in-depth interviews with the 78 leading attorneys, Kiser delves into the intricacies of decision making and analysis of legal claims.
The stories, insights, experiences and values of the study attorneys are masterfully woven into a story that allows the reader to rethink how decisions are made and how cases ought to be evaluated. The book sets out what clients should expect in the way of accurate case evaluation, what advocates should deliver and the dynamics mediators should be aware of as they facilitate negotiations.
The attorneys show a deep respect for our legal institution and show that more than advocacy is needed to be effective. Their reflections are analyzed and collated into four sections; Roles and Responsibilities, Frameworks and Connections, Feelings and Traits and Techniques and Strategies. Kiser masterfully captures the attorneys’ insights as they reveal how they perceive a case from the initial client meeting, how they devise the case strategy, how they adjust their strategy as new developments occur, the importance of proper legal analysis and fact checking and the balancing of various factors and competing interests. All this is brought together and the attorneys describe how the complete package is presented in court to a judge or jury in a compelling manner. Throughout these stages of the process, the study attorneys show a deep sense of responsibility for successful outcomes.
Research from social sciences and experiential learning from the legal profession are presented together to explain how lawyers, clients, insurance adjustors, mediators, judges and juries think and make choices along the litigation trail. Bringing these perspectives in adds crucial data and insights to the analysis.
Determining what a legal claim is worth involves a holistic approach with multiple, ongoing and adaptable considerations and strategies. The study attorneys share the ways in which they stand apart to achieve highly effective results for their clients while engaging in the profession of law in a responsible, respectful, resourceful and resilient manner. They describe their beliefs, values and experiences about successful case evaluation and show how thought is given to decision making from the moment a client walks in the door, through case preparation, mediation and settlement negotiations to the opening and closing statements at trial.
Kiser understands that the traditional analysis of legal decision making falls short of providing understanding of how masterful advocates make decisions. Attributes such as emotional intelligence, humility, perpetual learning, self-evaluation, creativity and independence are considered in the context of discussion on traditional topics such as liability, damages, judges, juries, experts, mediation, trial tactics and venues. Kiser describes how the best trial lawyers master the art of connecting with jurors and blend compassion with rationality.
“How Leading Lawyers Think” will read like a novel for those who are self-motivated and seeking to enhance their self-awareness, enhance their skills and connect in a meaningful way with all people in the legal system. For those looking for concrete methods to improve their ability to take a client from the initial meeting to a successful outcome, the book provides a complete context to gain insightful perspectives about what really matters. For the attorney who is intrinsically motivated “How Leading Lawyers Think” is an easy read full of ideas that can take their practice to the next level. For those who are extrinsically motivated it’s a must read to see how the best achieve excellence and what the payoffs can be.
Readers will take away useful strategies to improve the quality of representation, an understanding of the importance of integrating explicit and tacit knowledge to improve decision making and an understanding of the personal and professional traits that give rise to reputations as advocates who excel. “How Leading Lawyers Think” is a book that can be taken very deep, to understand how anyone involved in conflict resolution can become more self-aware and connected to others in the world that are touched by the disputes they handle and make them better human beings as they do so.
Monique McKay, LL.B., LL.M. and Robert A. Creo, Esquire
Monique McKay and Robert A. Creo are partners of Master Mediators LL.C and co-founders of The Master Mediator Institute.
(For more information on the Master Mediator Institute see: http://mastermediatorinstitute.org/MMI/)