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The Exercise of Common Sense

I have a few sayings. That doesn’t mean that they are right or that other people like them, but I do and I use them when I can.  One of my most favourtie sayings is “95% of the practice of law is the exercise of common sense.”  Granted, the common sense exercised by a lawyer is coupled with his or her legal training and background, but it still comes down to common sense.

When giving advice to my clients, it is sometimes necessary to give them both a legal answer and a “practical” answer which contains a large dose of a common sense solution.  This second option usually results in a more expedient and cost efficient solution for the client, but also gives the lawyer the opportunity to use some of his or her more creative talents in arriving at a solution or a resolution.

While I realize our training has ingrained in us that lawyers operate under the adversarial system, it is incumbent upon lawyers to minimize the adversity in that system and treat it as merely requiring us to be representing the best interests of our clients, without that representation meaning that any solution has to be to the detriment of the other party.

If a client truly wishes to be adversarial, then it is incumbent upon the lawyer, and it makes common sense, to then quantify how much that position will cost in terms of time and money.

The legal solution and the practical, common sense solution are also frequently the same.  Whether the matter be a commercial transaction or family law litigation, it is frequently worthwhile for the lawyer to take a step back, to review the legal position for soundness and then to review that position from the perspective of his or her own client, how it will be viewed by the other side and, if the lawyer is ultimately called upon to present that position to a mediator or arbitrator, what would be the likely result.

We have all heard the old axiom that there are lawyers who are “deal makers” and there are those who are “deal breakers.”  During my rather lengthy legal career, I have dealt with both.

Lawyers who are deal makers build a strong foundation based on the law and then custom build the balance of the structure using high quality common sense and practicality to make it solid.  That construction often requires the cooperation of lawyers representing all the parties so that they can all take pride in standing back, looking at what they have built, knowing that it will stand the test of time. Deal breakers often, intentionally or not, protract negotiations to the detriment of the clients and show frustratingly little creativity or insight in assessing novel ways of resolving issues.

I have dealt with deal makers in the past and have recently had the privilege of dealing with some lawyers who are top notch deal makers.  While it is difficult to teach common sense, it is up to senior counsel to create a training environment for young lawyers which encourages them to give free rein to their common sense, to search for practical solutions, to become creative thinkers and to use their elders as resources and sounding boards.  It is up to those of us who are senior counsel to lead by example and to encourage and give courage to those who look to us for advice.

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