The Art of Dealing with Uncertainty

By Bernard Knight
November 12, 2017

Do you sometimes feel unsure of yourself when speaking to a client or making a presentation?   Anyone who answered no is not being honest.   We all feel insecure at certain times; that is human.   It is impossible to know everything or anticipate every possible question.  You can be more effective with clients and colleagues if you follow a few simple rules when dealing with situations where you are not 100% certain.

I felt these feelings of insecurity first-hand when I started as the USPTO General Counsel and then again when I later joined a private law firm.   I started as the USPTO General Counsel without a long history in intellectual property (IP).   I had to learn the job on my feet.   This was no easy task because I had to give presentations on IP law before bar associations and trade associations that were filled with long-time IP experts.   I also had to answer their questions after my presentation often in front of a couple hundred of their fellow IP colleagues.

The same challenges had to be met when I joined a private law firm.   I was tasked with meeting clients and convincing them that I and my firm were the right match for their legal work.   I often was asked questions that I hadn’t thought about working on the American Invents Act.   For example, how do the new post-grant proceedings work in conjunction with district court Hatch-Waxman litigation?

Many times, I was not sure of the right answer to questions, but had to come up with something that made sense in the moment and left the door open for follow-up after more thought.   I present below some of the things that I learned.

Fake It Until You Make It?

The goal for any interaction is to be confident, yet humble.  Using the right amount of self-regard can be tricky.   Too much and you come off as arrogant or pushy.   See my prior IPWatchdog article on emotional intelligence and the importance of healthy self-regard.

As lawyers, we need to appear confident and in control without appearing arrogant.  No one wants to hire a lawyer or work with a colleague who is either arrogant or unsure of his or her opinion.   Lawyers are supposed to be experts for sure.   Billing rates are too high for wishy-washy thinkers.   Yet, we all feel inadequate from time-to-time and not totally comfortable with the subject matter.   See my prior IPWatchdog article on how to identify your fears and conquer them.

On the other hand, being too confident can make us appear arrogant and pompous.   Also, giving a confident answer when it is not warranted based on the uncertainty of the law or the facts, will have the reverse effect when we are found out or we must come clean and correct our mistake.  “Fake it until you make it,” is not a good long-term strategy for lawyers.

I have seen many new lawyers make this mistake.   Some lawyers make definitive pronouncements when the answer is far from clear to appear knowledgeable and in control.   Instead, this makes the lawyer look inexperienced and exhibits poor judgment.

Feeling Comfortable with Uncertainty

Everything is not black and white.   We all need to be more comfortable working in the grey areas.

These situations require experience and a lot of emotional intelligence to handle them.   You must be self-aware and appreciate how you are coming across to your client, supervisor and colleagues.   You also should be empathetic and get a read for how much uncertainty the client or boss is expecting and willing to handle.

It’s our job to educate our clients and bosses to help them manage any uncertainties.   The key is to explain the reasons for the uncertainty and develop a plan for managing it.

Do You Ever Feel Unsure but Want to Make a Great Impression?

A few simple techniques will help to manage the uncertainties that arise in any situation.

  • Don’t Respond Immediately with an “Answer.”   Stop feeling like you need to give a quick answer right away—that is a big mistake of many lawyers.   A true sign of insecurity.   This requires you to exercise impulse control and to wait before responding.  See my prior IPWatchdog article on the importance of impulse control.  You will appear smarter and more measured if you say that you have some initial thoughts, but need to look further to button down your answer.
  • Ask the Right Questions.   You will seem smart (and more importantly, be smart) and appear interested in the project if you ask the right questions.   After all, lawyers are trained to ask the right questions and critically analyze.   Once you obtain the information, you can ask for some time (even if short) to analyze the law considering the “new” information.
  • Know the Basics.   You want to act confident without appearing like an egomaniac.   This can be difficult to achieve and requires emotional intelligence.   The best way that I have found to do this is to study and know the basics.   Knowing the law and the relevant company background will help you to be authentically sincere and thoughtful.   If you know the law well, but need time to think about how it applies to a factual scenario, state the black letter rule of law in a confident manner and state that you need time to think further about the application to these facts.
  • Don’t Fudge It. You will lose credibility with your client, a colleague or a judge if you “pretend” to know the right answer just to appear smart or to respond quickly.   If you don’t know the answer, say that you don’t know but will look it up.   If you have a good hunch, say it’s a preliminary conclusion but that you need more time to button it down.
  • We ALL Feel Insecure from Time to Time. You are human like everybody else.   Congratulations!  Law school did not teach you everything that you need to know.   Embrace your humanity.     See my prior IPWatchdog article on how to conquer your fears.
  • Don’t Promise a Win or Predict an Outcome.   I have been asked before what are the odds of winning a case based on the facts.   Everyone wants to win and clients want lawyers who believe they can win a case.   Yet, predicting a win generally is a mistake given the number of variables that are not within our control.   State that you believe that the client should win if you believe that to be the case, but that there still may be a lot of unknowns that are not within your control.   Outline the possible unknown variables so that your qualification makes sense.   For example, a win could depend on the judge assigned, on the evidence presented by the other party and on the judge’s interpretation of case law or claim terms.
  • Don’t Drink Stimulants or Alcohol.   A cup of coffee is fine, but don’t have a Red Bull before a meeting or a cocktail before a client dinner.   Stimulants will make you appear too edgy and uncomfortable.   A drink before dinner will lower your inhibitions and you may come off too friendly and relaxed.   Check out my prior IPWatchdog article on lawyers and alcohol.
  • Know that You Belong.  Always feel like you belong, even if you feel like everyone else in the room is smarter than you.   Pretend like you belong.   There is a fantastic Ted talk by Amy Cuddy that discusses body posture and how to feel like you fit in.   Often the smartest person in the room is the one who does not have the immediate answers and wants to reflect.   The greatest among us has felt insecure from time-to-time.

Don’t Let Feelings of Insecurity Hold You Back—Go for It!

Prepare for difficult meetings and plan for potential questions or concerns.   This will make you more effective and self-confident.   Preparation is the key to genuine self-confidence.  Actors don’t take the stage without a rehearsal; why should you?   With a little work, you can appear and be more confident.

If you would like more information on how to perform at your best, visit Bernie’s coaching website.

The Author

Bernard Knight

Bernard Knight is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Washington, D.C., office. He focuses his practice on complex patent litigation. Prior to joining McDermott, Bernie served as General Counsel for the U.S. Patent and Trademark Office (USPTO) from 2010 to 2013. As General Counsel of the USPTO, he led the development and legal review of the regulations implementing the new Inter Partes review, post grant review, business method review and derivation proceedings, as well as the regulations changing the United States to a first-inventor-to-file system. Bernie previously served as Acting General Counsel of the U.S. Treasury at the height of the financial crisis. From 2001 to 2006, he was Deputy General Counsel for the USPTO. Bernie began his government career in 1991 at the Department of Justice, Tax Division, where he served for 10 years. CLICK HERE for Bernie's firm profile page.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

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