Month: May 2015

InnovationLaw firm managementLaw practiceMetrics

Listening and metrics of quality

If a client feels listened to, is that client likely to use the lawyer or law firm again? Maybe, but not if the lawyer listened deeply and sincerely while charging three times what the client expected for the work. Metrics for lawyers and firms get complicated very fast.

Courtesy Flickr/Scott Akerman/CC by SA 2.0

Courtesy Flickr/Scott Akerman/CC by SA 2.0

Kenneth Grady’s latest Seylines post points toward the lack of process (and process-based metrics) for delivering legal services. The lack of process makes it difficult to measure the services and compare them. Instead, “counseling and advisory skills” are viewed as what can and should be measured:

[M]any general counsel talk as if legal services delivered by one firm are not distinguishable in substance from those delivered by another firm. Rather, say general counsel, it is the counseling and advisory skills that separate the desirable outside lawyers from the rest of the pack. While soft skills are key qualities differentiating lawyers, until we become a process-oriented industry, legal services will not be interchangeable.

So I think what he is saying is, general counsel may be using metrics about soft skills because they don’t have “harder” metrics about process. Grady points with hope toward signs of better process:

As the ways in which lawyers handle matters become standardized, it becomes easier to compare what law firms do, the quality delivered, the value clients receive, and to find areas for improvement. This is the first major step to transforming legal service delivery from a world of inputs and outputs with a black box sitting between them, to a world of transparent legal services and costs.

I hope he’s not saying that “counseling and advisory skills” will become unimportant in a world of truly standardized legal services. I don’t think he’s really saying that, although perhaps he would like these skills to be measured in the background against a foreground with objective metrics of process.

Whether metrics for counseling and advisory skills are a good thing, or just a second-best waiting for something better, Grady’s post made me want to know more about the metrics for these skills. In particular: How do GCs measure whether lawyers and firms are listening to them? 

The most accessible list of metrics I found was published by the Valorem Law Group. (Thanks to Ron Dolin’s post on “Getting to New Law: Standardized Quality Metrics” for pointing me to the Valorem list.) I took a look at the common metrics suggested in the Valorem list to see whether listening was mentioned. It wasn’t explicitly, but it could play a role in quite a few of them.

Here’s a chart brainstorming how listening may play a role in lawyers’ and firms’ performance on a number of common metrics. The metrics are on the left; thoughts on listening are on the right:

Typical metric

How listening may play a role

Cycle time Effective listening could help resolve matters more quickly and reduce cycle time.
Performance to budget Effective listening can help counsel gauge how difficult a matter will be (e.g. reluctant or poor witnesses) and thus estimate budget realistically
Results to predicted outcomes Similarly, effective listening can help with more accurate predictions by teasing out bad facts and revealing problems with potential testimony.
Timely work completion Effective listening can help the lawyer understand the client’s preferences on setting up timelines (more flexible or more aggressive and strict).
Percentage of holdback awarded and buckets of holdbacks awarded These are incentives that are “indicative of widespread client satisfaction.” Effective listening could contribute to the overall effect of widespread satisfaction.
Re-engagement percentile and   re-use index A client is more likely to want to re-use and re-engage with a lawyer or law firm that listened to the client effectively. Or at least, a client is not likely to engage a firm or lawyer who didn’t listen.
Recommendation index A client is more likely to recommend a lawyer or law firm that made the client feel listened to.
Creativity index This metric “[r]equires client to assign a score on lawyer’s creativity in solving problems, structuring settlements, providing strategy ideas, etc.” Understanding the client’s goals and what the client can give up is an example of effective listening that contributes to problem solving. In general, effective listening enhances problem solving. (This claim is worth a more detailed post at a later time.)
After action ratio The Valorem Law Group post notes that an after-action review isn’t necessary in every case. Effective listening could help a lawyer gauge whether a client wants to spend time on this kind of review. Effective listening in an after-action session seems like it could be crucial to making the session productive, especially in a sensitive situation.
Quality of advice Effective listening could contribute by allowing the lawyer to have more complete information when crafting advice, and a better understanding of client preferences in receiving advice.
Quality of written product Listening indirectly contributes to good writing by giving the writer more information. “Listening” to how the writing sounds in draft form helps a writer modulate tone. Reading out loud and listening to the words can be very effective.
Quality of outcomes Listening can tease out weaknesses and strengths that the lawyer can then use to help the client understand what kind of outcomes to expect.
Wins v. losses Can listening contribute directly to wins and losses? I’ll make a case here: Poor listening can result in problems such as failure to make a record, so yes. Good listening can steer a lawyer toward the arguments that matter most to the judge, so yes. And effective listening can help a lawyer manage which cases are appropriate to go the distance as “contested proceedings,” thus affecting the overall set of cases measured in terms of winning and losing.
Collaboration As defined by Valorem Law Group, a collaboration event would be “two or more people meeting to discuss the case, brainstorm about strategy and tactics, and similar discussions yielding value for client.” Listening is crucial to these meetings. This one isn’t hard at all.
Transparency index Transparency seems to be more about what the lawyer says and shares than how the lawyer listens. But effective listening can help a lawyer recognize what the client wants in terms of frequency and manner of sharing, and when the client may not understand. (Giving a correct and detailed explanation that the client does not understand may not help a lawyer’s transparency rating.)
Total value index This index “[f]actor[s] in all metrics weighted in whatever manner client sees fit.” Listening could contribute to the client’s perception of “total value.”
Percent of claims resolved within 30/180 days of claim As noted earlier, effective listening could help resolve matters more quickly and reduce cycle time.

The list here does not include all of the metrics from the Valorem Law list. Although I try to relate almost every legal topic to law in some way, I just could not see the connection to metrics such as “effective disaggregation,” “average number of timekeepers per matter,” and “average seniority on team,” as well as a number of quantitative measures based on fees. (But wait. For average seniority on team, maybe there is a connection to listening. Ineffective communication with junior associates may lead them to seek opportunities elsewhere, reducing the pool of senior associates available for staffing.)

Another caveat is that not all legal matters involve the traditional definition of listening, as in some form of spoken and/or nonverbal input. For those that do involve meetings or phone calls at any step of the way, the metrics above suggest that listening can affect a pretty broad variety of metrics.

The Valorem Law post notes that many of these metrics are “subjective” such as whether a client would recommend a firm or lawyer and what the client feels is the “total value index.” And that brings us back to the difficulty of measuring listening in any context.

Client developmentClinical legal educationEmotional intelligenceFact investigationLaw firm management

Two hemispheres of law practice

 Securities law and divorce law. Lawyers in these practice areas may not be from different planets, but they live in different “hemispheres,” according to sociological work being explored by Deborah Merritt at the Law School Café. Her first post is here and second post here.

Flickr/CC by SA-2.0

Flickr/CC by SA-2.0

Merritt is revisiting the study Chicago Lawyers by sociologists John Heinz and Edwards Laumann. This study generated the “hemispheres” metaphor for categorizing the work done by lawyers:

Heinz and Laumann concluded that a “fundamental distinction” divided lawyers into “two hemispheres.” One group of lawyers “represent[ed] large organizations (corporations, labor unions, or government),” while the other “work[ed] for individuals and small businesses.” The division between these two was so sharp that “[m]ost lawyers reside exclusively in one hemisphere or the other and seldom, if ever, cross the equator.”

The concept of these two hemispheres immediately brought to mind potential differences in listening. Here are some exploratory thoughts. More are certainly welcome in the comments.

First-hemisphere listening

Listening in the “first hemisphere” means listening to large organizations. A single organization may or may not have a single “voice,” notwithstanding established lines of communication between the lawyer and client. A lawyer who represents an organization must know how to listen efficiently but broadly to the different perspectives of that organization. For example, what if the client contact urges an aggressive approach in a particular matter, but the key witnesses are unwilling or ineffective?

First-hemisphere listening may also involve heavy use of e-mail to enable simultaneous communication among a group. This could mean losing the nonverbal nuance of spoken conversation, as many critics of e-mail have pointed out. It’s a truism of e-mail skills that the best communicators know when to pick up the phone.

Listening to an organization also means sensing whether the key players remain satisfied with the work. As I recently heard a law firm’s chief marketing officer say, “When a [big] client isn’t happy with your work, they don’t tell you, because they don’t like confrontation. They just stop giving you any more work.” She made a great case for how a marketing officer in a big firm can help with listening to clients and teasing out more of what they really think.

Second-hemisphere listening

Listening it the “second hemisphere” would involve a different set of challenges. This second hemisphere brings to mind the more traditional image of listening such as one-on-one meetings where the lawyer listens actively and builds rapport. Perhaps the lawyer must guide the conversation to legally relevant facts, while respecting the client’s need to be heard. Many (almost all?) lawyers in this hemisphere also need strong skills in cross-cultural lawyering to be able to effectively listen to and problem-solve with their clients.

The business of law works plays a role here as well: lawyers must work on efficient yet welcoming intake procedures and appropriate listening behaviors from any staff who interact with individual clients. (See Lee Rosen’s tale of woe on Divorce Discourse, in which he interacts with a law firm in an attempt to refer some business.)

Why do these hemispheres exist?

So in terms of listening, are the two hemispheres more different or more alike? To think about that, we should think about why these different hemispheres exist in the first place. Merritt considers several factors such as income and power. Ultimately, she suggests—drawing from Heinz and Laumann’s work as well as Andrew Abbott from the University of Chicago—that the real issue is “professional purity”:

By professional purity, [Abbott] means the ability to resolve problems primarily through application of the profession’s own principles. The most prestigious professionals apply their knowledge to particular problems, but they do not grapple directly with messy facts or human emotions. Lower status professionals, in contrast, resolve problems that reflect a full range of “human complexity and difficulty.” (Andrew Abbott, Status and Status Strain in the Professions, 86 Am. J. Sociology 819, 823 (1981).

This idea helps to delve into the listening question. For the first hemisphere, perhaps listening takes a background role to the foreground role of legal analysis and problem-solving driven by that analysis. As Merritt writes, the lawyer’s role here is doing “some of the most ‘legally’ powerful work in the profession” such as examining “statutes, rules, and precedents to construct new, advantageous ways for the client to conduct its business.”

The privileged role of the lawyer here, doing this “legally” powerful work, perhaps can generate leeway for how and when the lawyer communicates. In the classic law-school legal-memorandum assignment, the legal analysis may lead to additional facts to investigate. Not knowing all the facts to investigate up front does not bring blame on the lawyer because unique legal analysis drives what needs to be known. Individual contacts in an organization may or may not be impressed with a particular lawyer’s communication skills, but one person’s experience may not be the most important criteria for selecting counsel.

Moreover in the first hemisphere, the organizational client’s workplace culture itself may discourage the expression of “messy facts and human emotions.” A non-emotional workplace culture could thus reduce the expression of these emotions in interactions with lawyers. (Merritt implies and I would argue that an emotion-suppressing workplace culture does not in fact mean the effective first-hemisphere lawyer need not worry about those emotions. More on this in a moment.)

For the second hemisphere, perhaps there is more obvious, explicit pressure on listening. It is certainly what is needed to deal with the “full range of ‘human complexity and difficulty.’” For individual problems that can’t really be solved with a neat legal solution, listening can go a long way toward helping and healing. An individual client may not know social-security law, but that client can recognize whether the lawyer is doing a decent job of listening. And the individual client may be less constrained on finding new counsel if the client feels dissatisfied. (However, lack of experience with lawyers and lack of a consumer mentality may cut the other way.)

Ultimately, Deborah Merritt suggests that the differences between the first and second hemisphere are less than we might think:

“Both hemispheres involve mundane, repetitive tasks, as well as intellectually challenging work. Similarly, effective education of ‘second hemisphere’ lawyers is just as intellectually demanding as that for ‘first hemisphere’ ones.”

First-hemisphere lawyers who refuse to delve into “messy facts” ultimately do risk their relationship with organizational clients. Merritt cites the facts that corporations complain when their law firms do not take the time to really understand their business.

What does this mean for law schools?

Merritt makes a number of points about teaching and scholarship. The “most important changes we can make in law schools, for all clients and lawyers” is to reduce the focus on appellate decisions. Instead, she argues law schools should bring client interaction into the entire law-school curriculum, including the sacrosanct first year.

In this way, students would be better prepared for their work as lawyers, in either hemisphere. Perhaps ultimately this type of reform would begin to erode distinctions between hemispheres as well, although they are very deeply rooted, as the sociologists work has repeatedly showed.

Law firm managementPeople skillsProfessional development

Listening for healthy signs

The Dean of Hastings College of Law, Frank Wu, recently wrote a widely shared article in Huffington Post, “Why Law Firms Fail.” He states a counterintuitive hypothesis:

Law firms fail for many reasons. Among them is not one that might be expected. Very few, if any, of the law firms that have “failed” has foundered because the people employed there were lousy lawyers.

The causes of these debacles are varied: too much debt or space, not enough revenues or collegiality (the latter merely referring to how to divide the former), geographic expansion for its own sake, promises to lateral recruits that cannot be sustained according to any rational calculations, and so on.

As I read the article, I wondered whether there is a connection to listening. Poor skills in business and management are the real culprits, Wu says:

It is necessary to be great businesspeople, too. Or to affiliate with great businesspeople, which means recognizing that the technical skills needed to be a great lawyer might (or might not) correlate with the other skills needed to thrive.

Dean Wu emphasizes hard skills such as understanding debt and managing costs such as compensation. But soft skills—including what might be called advanced business listening—are surely part of the solution as well. In the “business world” (acknowledging very broad generalization here), listening is recognized as at least helpful, if not essential, to effective management—as well as under-appreciated and often poorly practiced in the field. Anyone who follows LLL’s Twitter feed will know how often it draws upon the Harvard Business Review, which addresses listening skills quite a bit such as here and here and here and here.

The kind of listening that may be most pragmatically effective for addressing the failures Wu describes is the most difficult listening of all: listening for what isn’t there. (Peter Drucker: “The most important thing in communication is hearing what isn’t said.”)  Listening for the client pitch that could involve multiple client-service teams in a law firm but goes ahead with just one team. Listening for the lawyer on a complementary team who isn’t saying much about the opportunity he or she didn’t get. Listening for the lunch meeting that never gets set up with the attorney who isn’t in the office that much anymore. Listening for the sound of one foot out the door.

This isn’t just about the technical definition of listening as a receptive communication skill, although face-to-face conversations are a major opportunity for sensing these issues. It’s more about broadly sensing and perceiving what is happening—and not happening—inside the business.

Sensing what isn’t there is one of the hardest things. For both individuals and groups, the absences and gaps are overshadowed by the what is there: the pitches that do happen, the events that do take place, and the lunches that people do make time for. The cognitive experts, drawing on Nobel Prize winner Daniel Kahneman’s work, call this “WYSIATI”: What You See Is All There Is. For lawyers and firm managers, if they are seeing clients and revenue and billable hours, it may be very difficult to see the opportunities that aren’t happening. (Read more on Kahneman’s work and how it relates to lawyers and listening here and here and here. And here and here are a couple of good reviews of his book more generally.)

What are the ways to compensate for these biases and better understand what’s not happening? First, there is general investment in being connected to colleagues: staying in touch with people and having conversations. Good conversations create the opportunity to perceive not just what people say (“Hey, everything is going really well! Working with the XYZ client is really keeping me busy”) but also what they don’t say and what their nonverbal behavior may reveal. (The New York Times did a nice piece on Anita Cicero, partner in charge of the D.C. office of Drinker, Biddle, and Reath. She mentioned listening as key to her management job and her client-relations job. And this article on “7 Habits of Highly Effective Law Firm Leaders” alludes to the importance of being visible and listening to others’ perspective throughout the firm.)

Second, it’s possible to mitigate the WYSIATI problem with methods such as checklists and skillful use of questions. Checklists are not the most glamorous management technique in the world, but they are quite effective for certain situations. (Read Atul Gawande’s book The Checklist Manifesto. Please.) Checklists are known and even loved for catching mistakes. The “smart” lawyers Wu is talking about may congratulate themselves on their amazing checklists for producing great client work.

But checklists are more than a stupid-mistake-prevention technique. Teams and organizations can use certain kinds of checklists to force collaboration and conversation at specified points. Only in that way can checklists even begin to address complex long-term projects such as building a skyscraper—or maintaining a thriving law firm.

This type of listening is not just for recognizing problems as they occur, but also for productively collaborating in a way that anticipates and plans, addressing “issues” before they even become “problems.” Ken Grady of Seytlines has recently bemoaned the emphasis on the reactive, failure-based culture of much legal training. When we talk about listening, it needs to be stressed that listening is not just for recognizing problems but also anticipating and preventing them. Thus, this type of advanced business listening will sense opportunities ready to be created: The client pitch that can involve multiple teams. The contribution that a lawyer or team can make to a new representation. The lunch meeting that can launch a new collaboration within the firm.

For this kind of collaborative, anticipatory checklist, meeting face-to-face at strategic points is part of what Gawande recommends, along with prompting all members of the team to contribute in a constructive way. (Thus a regular law-firm meeting stuffed with top-down lecturing and cursory Q&A wouldn’t really count. Likewise an open-ended venting session with no particular goal is not what he is talking about.)  I am certain that many healthy law firms use practices consistent with what Gawande recommends, whether they are intentionally implementing a checklist-based management theory or not.

It would be interesting to hear more from readers about checklists for law-firm management, and more broadly how listening may play a role in law firms’ strategic planning and management. And even more broadly still, how can law firms and lawyers, and law schools as well, respond to the challenge of Dean Wu’s article on why law firms fail?


If you are really interested in checklists, here is the link to a 4-part series I wrote on checklists as a tool for legal project management. That series was more about being a smart and good lawyer in the nuts-and-bolts sense—which, as Dean Wu pointed out, is not quite enough to maintain a successful law firm.

 Thanks to Joe Fore of the University of Virginia for providing feedback on an earlier draft.