The role of the business lawyer in Volatile, Uncertain, Complex and Ambiguous (VUCA) situations

By mid-2018 when the economic crisis of the previous government arose, I started thinking about an article about the role of business lawyers in VUCA (Volatile, Uncertain, Complex and Ambiguous) situations.

The factual-legal reality moved so fast in Argentina since August 2018, that I could not find a moment to write that article. In 2019, we went through an exacerbation of the economic crisis, the economic consequences of the Primary, Mandatory and Simultaneous Elections (PASO), the political uncertainty and finally the crisis after the outbreak of Covid-19 pandemic. Argentina is like a rollercoaster where the reality changes very very fast. Who would have imagined in 2017 that we would be standing at this point in 2020? Nobody.

The term VUCA (Volatile, Uncertain, Complex and Ambiguous) was conceived in the US Army (in the US Army War College) to describe volatile, uncertain, complex and ambiguous scenarios developed around the world after the cold war. “Different” situations from those traditionally happening in a “solid” world, with two blocks clearly defined. After that, Zigmunt Baumant created the concept of “liquid” modernity based on concepts like fluency, plasticity, change, flexibility and adaptation, the reality is “liquid” and therefore it is not tied to time, it moves rapidly and cannot be stopped.

In Argentina we have been immerse in a “liquid” reality practically since I can remember. I recall going through the debt crisis in the 80s, hyperinflation and political crisis of the ’89 (Alfonsin’s anticipated exit), Bonex plan, intangibility of the deposits law, “corralito” and “corralón”(freezing of financial assets), three presidents in one week, default, holdouts, constant high inflation, 2018/2019 crisis and now, Covid-19.

In the last 20 years (2000-2020) we have been under emergency declared by the Congress for 14 years! Legal operators, users of the Argentine legal system, we have a Navy Seal training in crisis and VUCA contexts, but it is always useful, for those young lawyers who have not been through 89/90 or 2001/2002 crisis, to remind some concepts and ideas that will help to face these always changing and unpredictable contexts.

I will develop some ideas taking advantage of this time to think that quarantine has provided us with. First, I will make reference to the internal part of the crisis, our law firm, our staff and partners, how to stay together, motivated and keep the machine working; then, I will devote some paragraphs to analyse how we can help our clients, those whose interests we protect and justify our activity, not only during the crisis peak (like we are now during quarantine), but also before the crisis, in order to foresee situations that even if they might seem crazy or unlikely to happen, are not impossible, not in Argentina.

I will propose some ideas to make the best out of this crisis period -that will not be the last- to, as Nassim Nicolas Taleb says in his book “Antifragile”, we learn to love the wind, which can turn off a candle but also start a fire, this is, that we can embrace and benefit from uncertainty and chaos.

I would like to make a final clarification -which some may consider unnecessary, but I think it is appropriate- this is not an academic or scientific article. I will try to provide some practical examples from my own experience, some thoughts I learnt under a lot of pressure. These are thoughts that I elaborated after living many crisis situations and lots of frustrations and having seen many broken dreams. Most of these ideas came to my mind after Mauricio Macri government’s failure. I could see at that time many broken dreams and a lot of mistakes in calculations which helped to develop some of the ideas included in this article.

1. The internal front

I refer to the internal front as the own psyche of the lawyer/partner of a law firm and in general to the relationship with partners, other lawyers and collaborators. The leader or leaders of the team must develop -in a very short time- a great adaptability which allows us to overcome adversity and all the stress generated by the crisis in order to, as a wave, surf the crisis and end up being stronger and closer than before. Leadership will be showed by containment and logistic issues, such as being able to communicate, print, sign and submit documents while we adapt to the new scenario.

On this matter, I also propose some ideas or suggestions that I have learnt along the way.

• Acknowledge tiredness

The tiredness originated by taking too many consecutive decisions can lead to apathy and lack of will. It happened to me. Feeling that we lose hope. In stressful times our will, ability to think clear and strategic thoughts may be reduced; it becomes difficult to focus when the factual scenarios change drastically or we face uncertainty.

During the crisis it is difficult to recognize (and accept) the cost of such tiredness. We have the wrong idea that thinking and acting fast is the only alternative. My suggestion is, although I know that it is counterintuitive, to stop the game. It is not necessary to give an immediate response to all enquiries. Being exhausted many times leads us to make wrong decisions and affects the decision-making process; as we are reminded during flights: we must be well before helping others. The troop will soon realize that we are tired and may get tired in the same way by imitating the leader’s behaviour, that is why during these times we must self-commit ourselves according to the new reality, maximizing our work without reaching high levels of tiredness. During quarantine time, apart from working on pending issues I must also do the washing, help my kids with their homework, cook, etc. If I try to work the same number of hours as if I wasn’t in quarantine, I will be exhausted very fast (burnout), which will affect everyone around me. For example, in my case, I turned off notifications from WhatsApp and emails, so when I want to check whether I received messages or emails I just access the app and see them, but I’m not reacting to the phone after each single message or email.

• Trust in the team

It is very difficult to delegate, but after some time I have realized that it is best to delegate as much as possible and that, in many occasions, things turn out in a better way if I am not involved. It is very common to believe that you are the only one who can solve problems, that we can solve all the problems of our business ourselves. I learnt that there is nothing better than trust in partners and collaborators during crisis. Each one of us deals with stress in a different way and could surely grant different answers to the same matter, which creates an heterogeneous vision and gives a variety of solutions that maybe I could not have found in that occasion.

It is key to change the roles, being these administrative or legal work itself (as long as we have previously proven the abilities to take that role), so each one of the members of the law firm are able to occupy any space or at least have a basic training. This training, even basic, will be helpful during crisis as everyone can deal with any kind of work and thereby the delegation becomes easier.

In order to avoid frustrations from both sides (the one who delegates and the one to who the work is delegated to) it is important to remember -especially in these circumstances where we cannot give instructions personally or follow up the work (delegate does not mean we forget or neglect) and support the results of the task delegated by giving a positive feedback (even when there is a lot to improve), indicating how to make a better work if necessary.

• Keep an open attitude

We should always keep an open attitude, tolerant with mistakes as mistakes must always be welcomed, predicted and should have minimal impact on the routine of the law firm, this is “tolerable” mistakes. It is also useful to share fears and acknowledge that this is an unprecedented moment for the leaders of the firm too. It would be strange if we continue as nothing happened, as if this situation did not affect us.

This open attitude, allowing mistakes and to communicate openly will be very well appreciated and welcome in the law firm. It will provide energy and resilience to face a long crisis process as the one we are about to experience (it is clear that this will continue after Covid-19). To know that we are together in the same ship, will help us to move forward with strength and optimism, and if one of us has an emotional breakdown, the rest of the members of the organization will be there to help him.

 

• Communicate to others and with each other

 

In our law firm we are communicating via Zoom every working day at 11:00 am, apart from other calls for different matters. The purpose of the call is to keep ourselves connected, see how we are and the tasks we are working on. Passing days in lockdown is not the same and we are a lot more conscious of our mood. In order to stay together and keep our good mood, it is important to communicate and share recommendations between us on how to deal with these difficult times.

Explaining on a daily basis the decisions we are making contributes for the peace of mind to the team. This gives us strength to work for our clients, who we shall help more than ever for the continuity of their businesses, they count on us during these difficult times and we must be there for them. In the following paragraphs I will refer to our clients.

2. The clients

I am referring to clients broadly, including not only those who pay for our services, but also all those who ask for our help to take strategic, legal or commercial decisions, sometimes friends or members of our family. There are two books that helped me to put together the ideas I express here: “Antifragile”, which I have already mentioned above from the author of Black Swan, Nassim Nicolas Taleb and “The Lost Lawyer” from Anthony Kronman. This brief article, I repeat, is not intended to be an academic report, but only a mere collection of ideas, which I hope, are useful for all of us.

I think that both books sum up in some way the ideas I am trying to expose. On one hand, Taleb proposes not only dominating uncertainty, but also to going for it, make the best out of it, this is, become better after crisis. Being antifragile is not being robust, something robust “bears” the crisis but it does not become better after it, the antifragile loves random facts and uncertainty, which means also loving mistakes, some of them, the ones that are easy to solve and allow us to learn a lot from them. Kronman’s book – key to any lawyer- deals with the role of the lawyer in the society and suggests that our profession is similar to an art, we provide a service to the community and proposes that we perform our role with responsibility in the times we are going through (the “status” lawyer, not to be confused with “statesman”, ha!).

What I would like to show is how we can help our clients to think following these principles and see how we can help them to make the best out of the crisis by using our knowledge and structure. It is clear that our clients, whether they are Argentine or have invested in Argentina and have read briefly about the history of our country, they must be aware of the situation, and must have taken some measures if they are in Argentina or have come to Argentina. Regardless, we can always fall again. In fact, remember the ideas we had back in 2016. I remember being at a meeting of the American Bar Association in April 2016 in New York and they were all talking about the new Latin American star: Argentina. Argentina was ready for its new 90s.

It is among all that excitement that is convenient to resort to Taleb’s advice and seek to become “antifragile”, thinking in that way, then I provide for the so-called “bonex” clause, because I am prepared and looking forward for the next crisis, I am speculating that crisis will occur. I am writing these lines because I’ve been there, in the moment of highest popularity of the previous government and thinking precisely that crisis may happen. I mean, I am telling this because I was there and took that risk, the risk of appearing as pessimist or apathic.

Think about our advice and expectations as Hydra, the mythical creature that lives in Lerna Lake near to Aegos and has a lot of heads. Each time one of its heads is chopped, it grows two, then it is seeking to be hurt. Hydra represents the concept of antifragility exposed by Taleb. At the same time, Damocles’ sword (that hangs over his head on a horse’s hair) represents the other side of antifragility. Damocles enjoys a huge and spectacular feast invited by Dionisio and when he finishes, he looks up and sees the sword hanging from the hair of a horse. This offers us a different vision of the same issue: even for the most powerful, danger is silent, inexorable and discontinuous, it will fall on us unexpectedly even after long periods of calm. We shall always keep alert, especially when everything is quiet. Taleb also teaches us that those situations of extreme crisis are fertile ground for innovation and creativity, the development of new businesses. Burnt houses allow us to build something new from scratch.

I finish my article with great optimism, because I think that Argentine people and Argentine lawyers, we are antifragility experts. We have fallen so many times and our skin is so thick that we live with crisis in a natural way. God willing, we will survive and become stronger after this crisis, until the next one comes…