What preschoolers can teach us about problem solving

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At my daughter’s preschool, there are daily job assignments — Snack Helper, Line Leader and the always popular Feel Better Friend, who carries Skittles and Band-Aids during outside play for any child who gets hurt.

My favorite job, however, is Problem Solver (or, as my daughter says, the “pwabluhm salvah”). This job asks a 3- or 4- year-old preschooler to mediate any dispute that arises between two classmates. When the teachers explained the jobs at back-to-school night, they all gently chuckled at this notion. The head teacher assured us parents that they wouldn’t hesitate to intervene if it became clear that the problem solver wasn’t going to be successful.

But perhaps this simple description of the child asked to resolve a dispute between classmates has much to teach, especially for those of us who litigate. Are we problem solvers or do we actually create greater (and more expensive) problems for our clients?

When I first started practicing, I heard a story from an experienced attorney whom I’ll call Dan. Dan had been pulled in on a case as local counsel by a large national firm. Big money at stake. The other side had also retained local counsel, a person that Dan had an excellent relationship with from trying cases over the years. As the case unfolded, there came a time when the national firm called Dan and told him it needed a motion to extend the time to respond to something the other side had filed.

“More time?” Dan asked. “No problem. I’ll just pick up the phone and call opposing counsel. I’m sure he’ll give us more time.”

This wasn’t going to work for the national firm. It wanted a motion. Dan was flabbergasted. It actually did not want him to get the relief they were seeking in the most cost-effective way for their client. Instead, it wanted a motion drafted and submitted to the court that included case law, research, etc., — billable hours.

There is no doubt that the pressure of billable hours is real and seems to create a shortage of hours in each day. It is therefore very easy to lose sight of the role of the problem solver that so many of us are often asked to play. Often we immediately fall back on our training and jump into legal jargon and tactics, perhaps also attempting to wow our client with the speed and brilliancy of our suggestions and the sheer number of different kinds of motions we can think to file.

In my experience, though, it is always time well spent in those initial meetings with a client to find out what the client really wants and how the client wants the problem solved. It is also important to remember clients very often want us to be their counselor and advisor in addition to being their lawyer. They want us to tell them to accept the offer or to be frank with them about the weaknesses in our argument.

Perhaps, as Dan’s story illustrates, a simple phone call to opposing counsel to suggest early alternative dispute resolution is the best way to serve the client by solving the problem.

There’s also a certain level of gratitude in order, I think, for being called upon to help clients with their problems. I think my daughter put it best when I got home from work one night last week and asked her what job she had at school that day.

“The pwabluhm solvah.”

“Wow,” I said, “How was it?”

“It wasn’t good,” she said. “There was no pwablums.”