This blog has moved to the web site:
All new posts will be found there.
This blog has moved to the web site:
All new posts will be found there.
The common practice of “faking it” in legal practice stinks. We should outgrow it. Ultimately it hurts everyone involved. The courage and humility needed to drop “faking it” is what distinguishes some of the best attorneys.
Faking it shows up all the time in legal practice. George Kaufman, in his lovely book, The Lawyer’s Guide to Balancing Life & Work, provides a classic example from his days as an associate at Rosenman. George and his fellow junior associate Joshua were called into the partner’s office to discuss a new assignment. The partner asked Joshua to draft a debenture for the new deal by the end of the next day. “No problem,” says Dan. As soon as they leave the office, Dan pulls George aside to ask him, “What’s a debenture?”
Vinnie, in the great movie, My Cousin Vinnie, is glorified by how he fakes it and ultimately pulls it off. There’s a lot of drama and laughs in his almost getting his cousin in a lot of trouble because he doesn’t really know what he’s doing.
Getting subtler, it is commonplace for a partner to pretend he or she understands something that he doesn’t so that he or she will not look stupid in front of the client. After the client is gone, the partner looks up whatever wasn’t understood and no serious harm is done.
Or a lawyer is preparing the documents for a deal. The lawyer doesn’t fully understand the deal. He or she simply trusts that the business part of the deal is the client’s business, prepares the documents, and lets the client fill in the blanks.
Faking it has two problems, both of them serious. The first is the risk that you won’t figure out what to do in time and provide your client with incompetence. I believe that this happens in a relatively small percentage of instances; otherwise faking it would almost never be worth the risk. Still, creating that risk is unbecoming of an attorney with a fiduciary responsibility.
The second and bigger of the two problems is the lost opportunity. If the partner knows that Dan doesn’t know what a debenture is, the partner may take a closer look at what Dan prepares, Dan may get useful pointers enabling him to draft a better debenture or waste less time reinventing the wheel, the partner will know that Dan can be trusted not to fake it when the stakes are higher, and the client will only benefit in terms of cost and quality. Opportunities along these lines are lost every time someone fakes it.
(Note: There may be instances, in the presence of opposing parties, when some version of faking it is expeditious to maintain the appropriate façade for your client’s position. Even these situations, though, deserve to be questioned.)
The most important lost opportunity, in some respects, has to do with fear. Faking it is almost always a fear reaction. A lawyer is afraid that by admitting ignorance, admitting weakness, he or she will be punished, fired or lose the respect of colleagues or clients. As a general matter, being dictated by fear is a lousy way to live. People that put up a façade of happy fearlessness carry a lot of misery. They are living a lie and it takes a toll in every area of their lives. The presence of faking it indicates the presence of a great opportunity to get over your fears.
The truth is that a lawyer who conquers that fear and never fakes it is happier, a better lawyer and a much more powerful person. (Please note: Not faking it is not a licensing for whining. That’s just as bad.) Look at yourself and the other lawyers you know, people senior to you, junior to you, and on the same level. See if you can identify those that are honest about their gaps. How do they stand up beside the rest?
I encourage you to experiment with this. Notice when you fake it. Then, try not faking it in situations where the stakes are low. See how you feel. See the reaction you get. You may ultimately give up faking it altogether. It will likely make you a more exceptional lawyer.
Exceptional lawyers know their stuff. Scores of lawyers have echoed this fundamental truth to me. It’s an incomplete truth. Since we cannot know everything, being comfortable with our areas of ignorance is also critically important, just as important as knowing our stuff. And, unfortunately, it’s very easy for us to be uncomfortable with our areas of ignorance.
As a real estate lawyer said to me yesterday, “We [lawyers] have to be right 100% of the time.” If a corporate executive is right 80% of the time, she receives accolades. If we are wrong 1% of the time, the client who experienced that 1% is outraged; it’s unacceptable. People hire us for perfection.
Most of us who become lawyers like to have the answers. We like to be the providers of something like perfection. It’s a persona we enjoy. And, when we don’t know the answers or really understand what’s going on, we’re pretty good at covering up so that others don’t see what we don’t know. We don’t like to give the appearance of less than perfect, especially in any matter related to our area of expertise. So, we are often slow to fess up when we don’t really get it.
This morning, an in-house counsel told me that lawyers that don’t know their stuff well enough become deal breakers because they don’t understand what constitutes a reasonable risk. After further conversation, she amended that to say it is really the lawyers’ fear of owning up to what that don’t know that breaks the deal. After all, if we are comfortable showing our ignorance, we can learn–even in real time, properly assess the risks and benefits, and make the deal.
While some clients may be initially put off by your not knowing the answers, my experience indicates that they are most impressed with the courage of a lawyer who admits she doesn’t understand something. They appreciate your willingness to appear ignorant, to sacrifice your ego, for the sake of providing them with the best representation. My own proudest moment as an associate came when I approached a partner for whom I was working to say I didn’t understand the overall structure of a type of deal we often engineered for our biggest client. It turned out that I wasn’t alone, and he scheduled a series of seminars to bring all his associates up to speed. It was probably the most valuable thing I did for that client.
All this is not to say that a lawyer should always immediately announce when something is not understood, although it’s not a bad idea. If the circumstances are inappropriate (specifically, when they would put your client in a compromising or embarrassing position) be circumspect, be politic, be careful.
I recommend for any attorney to pay attention to all the times over a three-day period that he “covers” for something he doesn’t know, then to experiment in low risk ways to see what happens when he owns up to not knowing something. The results may surprise you.
“Sure, Sarah’s a fabulous lawyer. Only problem is she’s terrible about reporting her hours.” That’s not true. If Sarah’s not reporting her hours in a timely manner, she has other issues, too. Late time reporting is a problem that never stands alone. And, she probably doesn’t have to think too hard to identify correlating problems.
Anyone who has made a career of practicing law understands the business importance of tracking time [see, Avaro, Deborah L., Game Plan for a More Profitable and Productive Law Firm]. One reason that Sarah may not be efficient in logging her hours is because she doesn’t understand that importance. For Sarah to miss that importance is, simply put, shocking. It could only happen if she blinds herself to business realities. That’s a big issue for a profit-conscious undertaking.
If Sarah understands the importance, she may have problems with time reporting because she’s bad at scheduling and prioritizing. Maybe, she’s too overwhelmed with work to take care of administrative details. Poor prioritization and scheduling skills or feelings of overwhelm will have a negative impact on all parts of her practice. She’s apparently smart enough and hard-working enough to do a good job despite those limitations. Still, she’s not on top of her game.
The good news is that if Sarah can extrapolate from her difficulty with tracking and reporting her time to understand the underlying issues, she can then deal with them. This creates an opportunity to substantially improve her productivity, her understanding, her attitude, and–usually–her enjoyment of the work. The result is a more powerful practice across the board.
Treatises have been written on fear and its destructive impact on all manner of worthwhile endeavors. Exceptional litigation is one such endeavor. Many lawyers whom I’ve interviewed identified or confirmed a rampant problem among litigators, which springs from fear. I call it CYA (cover your a**) litigation. It is the enemy of persuasive storytelling, which is the heart of good litigation.
If we fail to tell the best story in court, we may lose the suit, but we generally don’t take too much slack for it. Persuasive storytelling is an art, like painting. If I paint a picture, opinions on it can fairly differ quite a bit. One critic says it stinks. Someone else says they like it. If it’s not held up for broad public scrutiny, it’s hard to say that it wasn’t done well. We can objectively watch a trial (and we rarely do) and later opine that one attorney had trouble connecting with the judge or jury, but it’s easy to explain away with a complicated fact situation, a judicial bias, a jury bias, or other details. A clear, objective assessment of a litigator’s persuasive storytelling is rarely made, and a marginal drop in the quality of the storytelling is rarely criticized. The drive to be exceptional, not fear, motivates a lawyer to tell the best story.
On the other hand, if a litigator fails to ask any question that may be significant, it is very easy to pinpoint, easy to quantify, easy to assess. When we miss a point that turns out to be important, we can take a lot of heat. So, to cover our a**es, we make a point of asking every possible question. We make sure that our associates do the same. Then, if we lose and our client complains, we can protect ourselves by saying no stone was left unturned. Fear gives birth to CYA litigation.
Of course, it is important to investigate potentially important items and ask important questions. There is a question of balance here. However, when we search under every rock–even every pebble, we diminish the quality of our storytelling, sometimes substantially. We lose cases that we might have won. It can also be costly and boring. We fail our clients because our fear of getting caught missing a point overwhelms our confidence in our ability to tell the most persuasive story.
A department head at the home office of a megafirm described the people management skills in large firms this way. “Let’s terrorize you. . . Occasionally, cut off a head and parade it down the hall on a stick.” Partners could benefit from improving their ability and willingness to give feedback, especially negative feedback.
The whole feedback issue is complicated by our love of praise. Most of us were at were at the top of our classes. Most of us got comfortable, felt good about ourselves, by always getting “A”s in classes, by always receiving praise from our authorities, who–while growing up–were parents, teachers, and professors for the most part.
In a system as heavily scored and ranked as modern schooling, it is very hard to get comfortable with “constructive” feedback. Students in schools (and that includes most of us when we were in school) usually take constructive feedback from people in authority as “negative” feedback. It’s a bad score, an indication of a failure. I think that most of us, unaccustomed to academic “failures” (like a C+ on a history paper) would usually double up our efforts in response to such an event and, in fact, learn to overcome our weaknesses. Still, it hurt us. It made us uncomfortable. And, it was always something we sought to avoid. It worked as a stick, not a carrot.
When we started to practice law, grades were replaced with bonuses and billable hours. And, we still carried with us the habit of trying to avoid “constructive feedback” which we might now call “criticism.” Being criticism-phobic, we also tend to be comparatively poor at giving feedback in the spirit of improvement. We tend to believe that we are wielding a stick, not a carrot, so we withhold it (out of concern for hurting someone or fear of a bad reaction) or we smack people with it. We end up “Cutting off someone’s head and parading down the hall on a stick.” This, of course, supports a culture of fear around feedback.
This is a sad state because constructive feedback, when used well, is the lifeblood of ongoing positive improvement of the firm and the lawyers in the firm. Companies and individuals that master the art of constructive feedback are the most efficient, the most happy, and the most successful.
The good news is that most firms have a tremendous opportunity for growth in this area. By identifying this weakness, then developing their mastery of feedback communication and action, individual partners and whole firms can improve their internal workings, and ultimately their client representation, dramatically.
[This title of this entry was inspired by a conversation with a senior partner in the DC office of a leading US mega-firm.]
Most of us lawyers learned how to manage risk in our lives by taking care of everything that had to be taken care of. We take care of our homework, we show up, we work hard, we get into a good college, a good law school, and a good law firm and, while life still has stresses, it’s all manageable. Then we make partner.
The workload the first year in law school may have been too heavy, but it was ultimately manageable. To bill 2000+ hours, answer every client email the same day, pursue all new business opportunities, attend three conferences and write two articles a year, sit on a firm committee, coordinate your team, mentor an associate, work out four times a week, get home for dinner every night, read the paper, and do whatever else you need to stay on top of your game is not manageable. If you are trying to do all of this, you are playing a losing game. If your strategy is to mitigate your risks by getting it all done, you will fail. Your practice will suffer, and–even more–you will suffer.
You can no longer avoid risk by trying to get it all done, by taking care of everything. A different strategy is called for. You need a new game plan.
This is good news. It creates the context in which you can be a winner, exceptional.
You have to create your own game. Set the rules, and play to win. The steps involved in this process are easy to understand (for a lawyer) and difficult to carry out well.
You start by getting a clear handle on what’s important to you and what you have to offer. What do you need to develop professionally? What do you need to do to know you are making an important contribution to your clients, to the firm, to society, to your family? What’s important short term? What’s important long term? What level of physical fitness puts you at your best? How much introspection? How much prestige? How much income? What kind of clients feed your intellectual curiosity? What motivates you best?
What you have to offer has to do with your abilities and your potential. What are your strengths? How can those be leveraged? How do you relate with people? Where could you be stronger? What new skills or habits could you develop to amplify your results? What improvements would have the biggest pay offs?
Then, you consider your opportunities and options. What new realms of business are within your reach? How could you pursue them? What clients could you pass off or drop? What steps could strengthen your team? What ways could you optimize your expertise? How could you make exercising a regular ritual? How could you arrange for the best quality time with your family?
After this consideration is complete, you put your stake in the ground. You say, this is what I can do. You don’t put your stake where it’s easy to reach. You choose someplace that’s going to stretch you, but someplace that’s winnable, that is to say manageable.
Now you are playing a winnable game. You’ve taken control of your life; you chose. You act authentically as your choice was based on who you are in your circumstances, not on trying to do everything that has to be taken care of. Your enthusiasm grows naturally. You still stretch and experience stress, but it’s in a whole new context. This improves the quality of everything you touch. Your practice thrives (on your terms and usually on the firm’s terms, too) and–even more–you thrive.
Law firms are driven by the market. The market demands short term profits. Short term profits demand that the firm maximize billable hours. (Most firms’ reward system is closely linked to billable hours, especially for associates and junior partners.) Maximizing billable hours means you do nothing but billable work. That means that
So, if you want to have slow professional development, no clients, and a miserable life, do what your firm wants you to do.
Or, you can figure out what you want and figure out how to have a relationship with the firm that benefits the firm while maximizing what you want. Then, find peace in that.
Law is increasingly a team sport. The team includes colleagues, those people with whom you kick around ideas, and your pit crew, the people with whom you work shoulder to shoulder or who support you. For your work to be exceptional, your pit crew must be
For the moment, I want to focus on loyalty and enthusiasm. Emerson said that nothing great was ever achieved without enthusiasm. That’s true. For your work to be great, you must be enthusiastic. If your pit crew is not enthusiastic, it will detract from the quality of your service.
Some people are enthusiastic by nature. Most people, however, only become enthusiastic when their environment, their circumstances, call it forward. Some pit crew will be enthusiastic because they are ambitious, others because they really believe in what they are doing, and others (most, I think) because of their relationships with the people around them. Most enthusiastic pit crew become that way because of the relationship they have with you and the enthusiasm that you bring to the process. That is, they become enthusiastic because they really want to help you or because your enthusiasm is contagious and they get caught up in it.
A loyal pit crew shows up. And, tends to show up enthusiastically. A loyal pit crew applies its best efforts. It doesn’t let things slide. Your best work requires that your pit crew will burn the midnight oils on occasion and do it enthusiastically. The loyal pit crew does not let you down in terms of quantity or quality. Loyalty is the characteristic that underlies the desire to show up and do their best all the time, even more than personal integrity.
The quality of your relationships with your pit crew can make all the difference in their being loyal and enthusiastic. While you don’t have to be all lovey dovey with them, it is important that you treat them with courtesy and–most importantly–respect their humanity, see them as whole human beings, not merely workers. This means having their best interests at heart and acting accordingly. It requires knowing more about their lives and taking steps to support them in personal ways. That could mean giving appropriate X-mas presents or noticing a down mood and suggesting someone take the afternoon off. Such a sensitive approach engenders the high levels of loyalty that will help make your work exceptional.
This type of loyalty also increases the likelihood that your pit crew stay in tact over time. Retention of a good pit crew is very valuable. You work better with a group with whom you have experience. It also creates the opportunity for the pit crew to build its skills to meet your needs.
[This entry was inspired by a conversation I had with a partner in a large (for VT) Vermont firm.]
Earlier today, an associate, seven years out of law school, at the Chicago office of a leading firm, ranked partners’ effectiveness in supporting associates’ career development at 6.5 out of 10. On a grade scale, that would be a “D.” This is a big deal, and it’s very curious.
It’s a big deal because a firm’s effectiveness relies on well-developed associates. It makes associates happy. They stay. The substantial cost of getting (and training) new associates is diminished. Also, the associates do better work, both because they are happier and because they are better-trained. Clients that are served by these associates receive better legal services. Partners also get the benefit of more loyal, harder and better-working associates. If the partners at a firm give anything less than A+ career development support to associates, they are shooting themselves in the foot.
The curious part is that law partners know this. They know the importance of associate career development. Law partners tend to be extremely smart people, people who know not to act against their own best interests. So, what’s going on?
I can identify at least three causes that ultimately boggle smart partners ability to provide the kind of associate career support that we’d expect.
The first of these is cultural and varies greatly by firm and geographical location. One partner with whom I spoke last month started her legal career in Montreal. There, she said, she received excellent mentorship. It’s part of the firm culture. She described the mentor process as “incredibly useful.” Her mentor partner took a great interest in her development and took the time to make sure she was honing her craft and learning the ropes of the business. My research so far indicates that, while a long way from the Montreal experience, firms in smaller cities tend to make more time for their associates than in larger cities.
Second, making it even harder to break the cultural rut is the pressure of American big-city law firm life. The former Montreal lawyer told me that the whole firm stopped working for a social hour at the end of the day on Friday. Almost everyone showed up. The culture there seemed to have a lot more elbow room, room to socialize, room to relax, room to mentor associates. The culture of pressure relates to and exacerbates the culture of not mentoring.
As any executive coach or OD consultant knows, it’s a challenge for a firm to change its culture. It’s doable, but it’s a challenge. The same associate who gave the 6.5 ranking told me that his firm had adopted a mentoring program, which was great for about a month. Then, it was forgotten. Lasting cultural change requires ongoing support until the change has become routine. As a result, many firms are stuck in this non-mentoring cultural rut. But, firm culture is only part of the problem, and it may be the smaller part of the problem.
The third cause has to do with the partners themselves, not the culture of the firm. The same associate ranked partners “genuine concern” for the professional development of associates at 7.5 out of ten, a “C.” One way of looking at this is that the concern of partners accounts for a 2.5 point drop (from a perfect 10 to a 7.5) and the firm culture pulls the quality of associate support for career development down to the 6.5 level.
How do we account for this lack of genuine concern? I expect it is a combination of pressure, inertia, and a failure to see the big picture. This is where the idea of a litmus test comes in.
An exceptional lawyer’s judgment is largely immune to pressure. An exceptional lawyers will fight inertia to attain valuable results. And, most importantly, an exceptional lawyer’s good judgment is founded on a solid, big-picture perspective. These are qualities that distinguish exceptional lawyers from the rest. A partner’s involvement in mentoring associates may be a particularly good litmus test for these qualities. While there are many measures of an attorney’s success, such as income, rainmaking, win/loss record, size of deals closed, client list, and experience, they don’t always point to an attorney being immune to pressure, bold in the face of inertia, or having big-picture perspective. This is not to say that a lawyer who mentors associates is necessarily exceptional, but it is a useful metric in making that determination.