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?

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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.