No isn’t a four-letter word

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By Stacie Rosenzweig 

So, this week, I was coming back from a vacation after a pretty solid month of briefing and hearings and research, and expecting to return to more of the same.

And I got an email from my editor asking for a column, preferably in a hurry. I like being able to swoop in to save the day when someone’s in need, so I said: Yes, no problem, you’ll have it by Friday.

This column is about saying “no.”

As a newer lawyer, I endeavored to say “yes” as often as possible. Granted, I often didn’t have the luxury of saying no—as a young associate I took assignments from partners who were responsible for setting my salary and deciding whether or not I had continued employment, so “no,” short of a true conflict, wasn’t a very good look. That a project was way outside my comfort zone was almost a given (I was new, after all); that it would take up too much time with an uncertain payday, or be dreadfully boring, or would involve a particularly obnoxious client couldn’t be a concern. And generally, I still counsel new lawyers to say “yes” as often as they can, as it does help build skill, reputation, and yes, income.

At 10 years in, although I do have more flexibility in that regard, I still prefer to say “yes” more often than not. I will admit to possibly having a little too much of a soft spot for “I have a really weird matter to discuss with you and it may blow up the rest of your week.” It’s a nice break from the routine and it’s good for my ego—if I can pull it off. But figuring out what I can and can’t pull off—and, perhaps more importantly, what I should and should not try to pull off–is still a work in progress, and likely will be throughout my career. It’s hard letting people down when they’ve come to count on you in a pinch, and it’s even harder turning away something that could be interesting or lucrative.

Recently, I got a potential referral. On first blush, wow, it looked good. There were big numbers involved.

This could be easy money. It could be the holy grail of cases.

The matter was, admittedly, not quite in my wheelhouse…but it could be close enough, right? I could get up to speed. I looked at my calendar and case list—it was pretty packed. But I could make room. I always seem to.

But then I started to research some of the issues, and the dollar signs began to fall from my eyes. The case did have the potential for high reward, yes, but it was also high risk. It was not nearly as clear cut as I initially believed. It could blow up in my face in spectacular fashion, diminish my own reputation if it went sideways, and, even if it was successful, would suck up a lot of time and firm resources that could be spent on other matters (with funds already in trust, even) and spread me too thin. But still, it was really, really tempting. I didn’t want this to be “the one that got away.”

Finally, I talked to a colleague about it. He asked me two questions. “First, give me a quick ‘elevator pitch’ argument on your client’s position. We’re going up the elevator and have about 45 seconds to talk. Why is he right?” I thought about it for a few moments and recited my answer. “Okay, now go back down the elevator, and put on your other-side-of-the-caption hat. Tell me why he’s wrong.” Again, I complied.

“You know, when you were arguing against your own potential client, you made eye contact with me. You were clear and unequivocal. But when you were trying to argue your own case, you looked away and out the window, and paused for a bit, and used wiggly words like ‘it’s our position that’ and ‘it seems to me.’

What does that tell you?”

As it turned out, a venue motion and not my own judgment made the choice for me, and the case ended up out of state. But I did think a bit about the ‘elevator pitch’ exercise and what it did tell me.  First, it reminded me that I am somewhat risk-adverse for a lawyer, which I suppose suits me in my ethics-scold niche but may hold me back in other regards. SCR 20:1.1’s duty of competence doesn’t mean we can’t branch out beyond our existing expertise; that’s what research and consultations with others are for.

But it also told me that deep down I was much more reluctant to take the case than I was willing to admit, and perhaps if I have misgivings I should talk about them instead of assuming it will all work out once the check clears. After all, the last time I didn’t listen to that nagging voice, I may have convinced the aforementioned colleague to take a case or two that seemed lucrative at first but turned out to be a dumpster fire in the center of a three-ring circus. Oops.

With the caveat that this is not an invitation to the universe to unleash a firehose of crazy in my direction, I will probably always be someone who prefers to say “yes.” (And I did get this column in by Friday.)   But I also need to remember the “down” elevator speech is sometimes the better one and I may need to listen to it.

Stacie Rosenzweig is an attorney at Halling & Cayo S.C. in Milwaukee. Her practice centers on working with lawyers and other credentialed professionals in a variety of licensing, professional responsibility and disciplinary proceedings.