What I Learned About Innovation from Practicing Law

What I Learned About Innovation from Practicing Law

For some years I was a litigation attorney, and much of my work revolved around courtroom rules of evidence. I appreciate these rules; they make rational sense to me. These days I help companies innovate successfully and gain market traction. When interacting with non-attorneys, however, I see these rules of evidence being violated at the expense of the innovative process.

It has occurred to me that bringing the rules of evidence to innovators, entrepreneurs, and product developers will substantially improve the innovation process. So here they are—the evidentiary rules of successful innovation:

Rule #1: Hearsay is Generally Inadmissible.

Practical Application: You do not have the authority to issue other people’s opinions

I have sat in on countless meetings where a participant comes up with an idea, and another participant immediately responds with a statement to the effect that a third party, who is not present in the room, will not agree to it. The idea is immediately thrown into the trash bin and never spoken of again.

The absent party leveraged to crush the idea can be an individual decision-maker, an entire department, the C-suite, millions of customers, or any other stakeholders for that matter. Here is how this plays out:

Innovative Irene suggests an innovative idea. Norm the Naysayer immediately responds that Absent Abby, who will need to agree, will object. Innovative Irene falls silent and looks down at her navel in shame, feeling despondent.

My favorite case study of this is when the absent party is the legal department: “No, we cannot do that because it will not pass legal.” The tragic part is that usually the naysayer has no idea what he is talking about.

And as a former attorney, I am always flabbergasted by the whole dynamic: Who gave the authority to Norm the naysayer to speak on someone else’s behalf? Who gave him the authority to interpret other people’s thoughts? And in the example above, why are we allowing Norm the naysayer to issue an expert legal opinion about Irene’s idea?

You have to wonder why you have a legal department at all if you can just ask Norman the naysayer instead. Or a marketing department, manufacturing department, suppliers, customers, and investors. Or a CEO for that matter. Norm the naysayer can speak for them all.

In order to avoid this dynamic, the rules of evidence speak to “hearsay,” or testimony about the thoughts or words of someone who is not present in the courtroom. This type of evidence is generally inadmissible. You have to bring the absent party in on the conversation and hear what they have to say.

Similarly, Norman the naysayer may earnestly believe that someone will not agree to your idea, but this does not make it true. The only way to verify the truth of someone’s opinion is to hear it from the horse’s mouth.

Even more importantly, if you go out and interview the horse—er, person or persons, find out WHY they think or feel the way they do. You are likely to get invaluable information in the process.

So here is what you can do the next time you hear a naysayer shoot down an idea while purporting to speak on someone else’s behalf: 1) thank them for what they have to say, 2) write down your idea next to all of the other ideas under consideration, and 3) make a note next to it to ask the absent party for their opinion. There; it is as simple as that.

Rule #2: Non-Expert Opinion Evidence is Generally Inadmissible

Practical Application: If you plan to get someone’s opinion, figure out whether they know what they are talking about

The rules of evidence generally exclude opinion testimony from non-experts. This is because non-expert opinions tend to be unhelpful and can even throw you off completely. So you have to establish who is an expert on what subject before you can listen to their opinion. How does this apply to the innovation process? In many sneaky ways.

First off, we frequently hire experts because of their past success even if their experience is ill-suited to help us with our own situation. We assume that their success is a sign that they must know something about being successful that we do not. And we fail to scrutinize properly whether their experience is sufficiently relevant and transferable to our own situation.

We also sometimes confuse exclusive degrees, positions of power, wealth, and seniority with expertise and are unduly swayed by the opinions of those who fit in those shoes. We get strong-armed by these individuals based on our subconscious beliefs that they must be superior to us and therefore must know better than we do.

Further, we fail to recognize that our customers and stakeholders are experts on their own needs, motivations, habits, and willingness to engage. And we fight tooth and nail to avoid asking them about their needs and opinions, possibly because underneath it all we are afraid of our customers (just speculating on that one).

And sometimes, when we get too attached, we forget that our customers are not experts on what we should do. In fact, we are the only experts on what we should do.

Our decisions can and should be informed by the testimony of others. But only if we have first established that those others are actual experts on what they have to tell us.

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Joanna Malaczynski is a design thinker with a background in entrepreneurship, environmental design, and industrial organization. She provides consulting and advisory services for DESi Potential around market traction, successful innovation, customer discovery, and the entrepreneurial mindset. She is a former antitrust litigation attorney, urban/environmental planner, and sustainability software entrepreneur.

Joanna Malaczynski




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