Legal Law

Commerce disputes are like a can of Monster Power

It’s easy to fall into the cult of productivity these days, in the sense of getting addicted to the dopamine high, getting things done and walking out the door. There’s even a bestselling book and productivity method called Getting Things Done, which, as the name suggests, is all about breaking items down to lists, organizing them, and getting them done. Up to a point, of course, that’s wonderful. We all have some small tasks to do that can benefit from being organized – to-do lists are wonderful, as are more complex Trello or Kanban systems.

The limits of lists

But to-do lists become a trap when they turn into their own goals. Few things can really be reduced to items on a list. Even something as simple as “brushing your teeth” just seems easy because you’ve been doing it regularly all your life and you have the power of habit. If you literally followed a “brushing your teeth” list item to simply get through the item, you would spend 10 seconds on work and have many unpleasant visits to your dentist. Actual brushing is indeed a highly complex series of tasks that require a deep understanding of both effective brushing techniques and the contours of your mouth. You just don’t notice because it becomes automatic when you gain understanding and expertise.

On the other side of the spectrum from your daily brushing, the aerospace industry has checklists down to a science. They have checklists for everything. You can go online and purchase multiple versions of checklists for your particular aircraft, or even download them for free, to learn how to preflight a 747 or what to do if your Cessna loses power in flight. However, the checklists remind experienced operators to remember a step in their routine if a missed step results in potentially horrific death. If you are on fire on a 747 and try to land the plane safely, you realize that your fantasy of being the next Sully is as soon as you pull out the checklist for the engine fire and find that on the first point only “throttle CLOSE.” “It won’t end well.

Over the limit

Instead, in all of these cases, it is important to have a deep understanding of what is behind the item on the list. Lists are at best a reminder. And no matter how well you feel at “Pvt. Tim Hall always argues, never tries. “That alone won’t tell you what this stands for, let alone give you a meaningful understanding of amino acids.

Complex trade disputes and the law in general are even less hospitable to the use of lists, as each case is not only unique but also a competition between smart people on two sides to find out which side will better understand the case. The Citi staff, who literally forgot to tick the correct boxes in August, could have saved themselves a lot of stress if they had a good checklist. But the Highland Capital and Investcorp lawyers, who decided to return the funds a few days later, are probably feeling pretty silly right now too, and no list or list-encouraged thinking would have helped them much.

Like a can of Monster Energy

The reason a checklist mindset doesn’t work well legally is because you can reduce a case to one simple principle: you have to understand everything perfectly and then decide the best course of action based on that knowledge.

My favorite metaphor right now is that a case like a can is Monster Energy, the delicious and rightly popular energy drink, but you, as a lawyer, are an alien who has never seen a canned drink or human before. All you know is that the can contains a wonderful liquid that will give you more energy to do what you want and that it is your job to open it as efficiently as possible.

As such an alien, how would you approach this problem? That sounds silly because we’re all constantly opening tabbed beverage cans. For an alien scientist who has never seen anything like it and shares a completely different cultural and evolutionary history, this is a difficult problem, even if the goal is only to open the can without it exploding and making one due to biological incompatibilities City wipes out. The task becomes exponentially more difficult when you lead a team against another team of alien scientists to not only open the can safely but also in the most efficient way, provided you only have one can and cannot use trial and error.

Where do you even start with such a task? The only method is to fully simulate the can. You have to understand everything perfectly. If you hit a circular surface two millimeters in radius, five centimeters from the bottom of the can, with a Newton force, it will have certain effects on the metal of the can and the liquid inside. If you hit half a millimeter higher at 1.2 Newtons, it has a certain different effect, and so on. Everything needs to be fully understood so that you can say with confidence that if you touch the can in a certain way, a certain result will be achieved, and from that create a model of it in the most efficient way that with the minimum of effort you can have that desired result achieved.

Let’s build on the metaphor. Suppose, as with the law, there is no computer model that scientists can use to simulate all of this, and the team needs to keep everything in their mind. One person alone cannot consider this to be more than a trivial complexity, so you need to distribute it. This means that, for example, a junior person on the team has to take responsibility for understanding the physical properties of the metal in the can. You must master the melting point, electrical and thermal conductivity, density, malleability, ductility, etc. You have to understand it completely, to the point where you can easily converse with Plato or Maxwell or Freeman Dyson on any aspect of the subject of the can. You will understand its molecular structure, how it reacts to different heat, cold, radiation or other forces. You understand its taste and smell. You understand all of this instinctively.

Then that junior researcher needs to be able to distill this knowledge so that he can explain every aspect to a 6 year old and then be able to pass all relevant information on to the team leader. With this method – and only with this method – the team can then precisely simulate all the properties of the Monster Energy can. Once the simulation is done, the rest of the path is relatively straightforward. You just go through all possible permutations and determine the best ones. You try all the options in your head: piercing the can with a pocket knife; cut off the top with a kitchen knife; Open your mouth by sticking your thumb through the tear strip. and one of around 50 different ways you can work with the pull-tab. Such tests will find the best method and off you go.

What’s next

That’s it. The important part, as you noticed, is the basic understanding. Once you have mastered brushing your teeth; Put out fire on your Cessna; or all the physical properties of a can of Monster Energy, the rest is almost autopilot. But the preparation and understanding that comes with it is the hard part. So make sure that you never skimp on that understanding, and that a fixation on getting it done never takes precedence over understanding what exactly you are trying to do.

Matthew W. Schmidt has represented and advised clients in all stages of litigation and numerous matters, including insider trading, fiduciary duty, antitrust law and civil law RICO. He is a partner in the litigation and investigation law firm Crossbowman Fariello in New York, where he and his colleagues represent national and international clients in litigation, arbitration, appeals and investigations. You can reach him by email at [email protected]

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