Month: November 2016

Legal communicationProfessional development

New favorite hashtag: #PracticeTuesday

Sean Marotta, an appellate-practice specialist at Hogan Lovells, and Rachel Gurvich, a legal writing professor at the University of North Carolina, have started a new tradition on Twitter: #PracticeTuesday. Each Tuesday night, they launch a discussion on good habits, best practices, and useful tips for law practice. The hashtag for tweets on this topic is #PracticeTuesday. Today (Tuesday, Nov. 29), David Feder of Munger, Tolles & Olson, and very recently a law clerk with U.S. Circuit Judge Neil Gorsuch, took the lead on the #PracticeTuesday discussion. Even without joining Twitter, I believe anyone can view the tweets with this hashtag at http://www.twitter.com/#PracticeTuesday. If possible, it’s more beneficial to follow the Tuesday discussions it in real time or by checking in at regular intervals.

The advice shared on #PracticeTuesday thus far has touched on many important topics such as advanced legal writing, marketing yourself to colleagues, and stuff they didn’t teach you in law school like launching a conference call. Here are just a few good examples of #PracticeTuesday tweets, mostly from the November 29 discussion. I highly commend the #PracticeTuesday discussion to associates wanting to do great work, partners hoping to receive great work, and professional development teams seeking to provide training and content that fosters great work.

Collegiality:

Helpfulness:

Sociability:

Not being rude:

 Asking the right questions when taking assignments:

Recognizing assumptions and clarifying when needed:

Accountability:

Assertiveness (part I):

 Assertiveness (part II):

Saying no (entire thread on this):

Understand feedback (part I):

Understanding feedback (part II):

Cross-cultural communicationFact investigationPeople skills

Holiday listening

StoryCorps’ Great Thanksgiving Listen of 2016 wraps up this weekend. StoryCorps is an oral history project with a mission to “preserve and share humanity’s stories in order to build connections with people and create a more just and compassionate world.”

The Great Thanksgiving Listen of 2016  follows up on the first Great Thanksgiving Listen of 2015, facilitated by StoryCorps’ release its app in 2015. The app has lots of stories to listen to, and it also walks users through the process of preparing and recording their own interviews:

Choose someone to interview. Pick great questions. Find a quiet place to record. Listen closely.

StoryCorps seeks to make interviewing a standard part of the high school curriculum, based on the success of the 2015 Thanksgiving Listen:

A 14-year-old in Georgia heard what it was like for her grandmother to go to bed hungry; students in Colorado heard one man’s experience of enlisting during the Vietnam War; and a teen in Louisiana found out that her grandparents got engaged at a drive-in movie.

There’s no reason this endeavor should be limited to high school students. Really, it’s for anyone who wants to make a deeper human connection by listening to someone and helping them memorialize their story. And the interview need not be a Forrest Gump-like overview of historical moments. The ABA Mentorship Project has teamed with StoryCorps to record narratives on mentorship in the legal profession here. The University of South Carolina School of Law’s Pro Bono Program is partnering with StoryCorps to record lawyers’ and students’ stories related to serving the Hispanic community as well as advocating for LGBT clients

Outside the boundaries of required classwork, law students may not be able to record someone’s story in the stressful period between Thanksgiving and the end of final exams. But if finals end in mid-December, the holiday break is an ideal time to rest and recharge by listening to someone else. It builds interviewing skills and may help students clear their heads. More importantly, it creates a human connection and participates in StoryCorps’ mission of creating a more just and compassionate world.

Client developmentClient relationshipsEmotional intelligenceEmotional laborGender

Love your lawyer (part 2): Emotional labor of lawyers

Love Your Lawyer Day prompted the question: what makes clients love their lawyers? Client satisfaction is one way to gauge clients’ love. As addressed in an earlier post, client satisfaction depends on the lawyer’s competence and expertise. But client satisfaction is also intertwined with how the client experiences the process.

The client’s desire for a satisfying experience raises an aspect of lawyering that deserves more attention: emotional labor. Emotional labor is a common practice across service professions and “requires one to induce or suppress feeling in order to sustain the outward countenance that produces the proper state of mind in others.” Emotional labor generally occurs in personal interactions such as face-to-face or voice-to-voice moments. The person doing the labor displays emotion to influence the client or customer, and that display of emotion follows the rules of the profession. (The source here is Sofia Yakren’s article Lawyer as Emotional Laborer in the University of Michigan Journal of Law Reform, which is this post’s major source along with Joy Kadowaki’s Maintaining Professionalism: Emotional Labor Among Lawyers as Client Advisors in the International Journal of the Legal Profession.)

The concept of emotional labor was originally formulated and studied by sociologist Arlie Hochschild, who focused on flight attendants in the early 1980s. Emotional labor has been in the news with the rise of Uber and other on-demand service where customer ratings mean a lot. As reported in the Harvard Business Review Blog, “on-demand workers end up performing outsize amounts of what sociologists call ‘emotional labor,’ or expressive work to make the customer experience a positive one so that users come back to the platform.”

Lawyers may not use platforms like Uber apps (not much yet anyway), but Yelp ratings are important and sometimes problematic for many. And whether a lawyer gets clients from Yelp or a casual conversation at the Yale Club, lawyers do perform emotional labor. A common theme of all emotional-labor literature is the tools workers use for performing it:

  • deep acting
  • surface acting
  • detachment

Deep acting means trying to make yourself experience the emotions you are displaying. Surface acting means using techniques to fake emotions. (This can be done in good faith to help the client, or in bad faith as a sort of cover-up.) And, as Joy Kadowski found in surveying consumer-oriented lawyers, detachment means dealing with repugnant clients by “taking emotion entirely out of the interaction with the client, reducing the relationship to one that is ‘strictly business.’”

The emotional-labor literature does not paint a particularly optimistic picture. When professionals genuinely change their feelings or align them with their actions in deep acting, the costs of emotional labor go down. But surface acting and detachment are associated with emotional dissonance, which leads to a host of problems from addiction to depression to general alienation.

Another question is, who is emotional labor for, anyway? If the focus of emotional labor is on creating a comfortable emotional state in the client, then perhaps it’s for the benefit of the client. Emotional labor to keep the client as comfortable with the legal process as possible under the circumstances could indeed help clients love their lawyers.

But emotional labor also follows predictable rules defined by the profession, and part of what professionalism does is to “convince, cajole and persuade employees, practitioners, and other workers to perform and behave in ways which the organization or the institution deem to be appropriate, effective, and efficient.” (This is Kadowaki quoting sociologist Julia Evetts.) The sociologists coined the term “feeling rules.” And feeling rules are not just for the benefit of the client in the relationship; as Kadowaki points out, “In some cases [emotional labor] is done for the benefit of the attorney-client relationship, but at other times emotional labor is used to protect the emotional state of the attorney, and thus his or her performance of professionalism.”

What can be done to minimize the consequences of dissonance for lawyers while preserving what clients need? Dismissive attitudes might say the profession should self-select: if practicing law is so dissonant and painful, then don’t do it. But that’s not a very good answer, as Yakren points out: “Do we want to eliminate healthy self-doubt as a check on professional conduct?” No. Moreover, “constructing a profession comprised of a particular type of thinker could stifle creative solutions to complex problems.” (And thus it could make clients individually and collectively not love their lawyers even more than they already don’t love them.)

Solutions Yakren poses include expl0ring and teaching lawyers more about deep acting (which helps clients just as much if not more than surface acting and detachment, and emotionally costs less for the lawyer doing it); encouraging more autonomy for lawyers to exercise their consciences; and critiquing formalistic notions of professionalism and ethics to recognize the importance of context. Similarly Kadowaki points out that professionalism is far more complex and interconnected than any formalistic system can account for: “While the lawyers [interviewed in her study] defined professionalism as requiring the suppression of emotion, their description of their actual practice detailed significant emotional labor efforts and a much more nuanced negotiation of emotional expression.”

Sources:

Joy Kadowaki, Maintaining Professionalism: Emotional Labor Among Lawyers as Client Advisors in the International Journal of the Legal Profession (2015), http://www.tandfonline.com/doi/abs/10.1080/09695958.2015.1071257

Sofia Yakren, Lawyer as Emotional Laborer, University of Michigan Journal of Law Reform (2008), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2602520

Dan Defoe, Emotional Intelligence and Selecting Personnel Lawyers for High Emotional Labor Jobs, Psycholawlogy, July 15, 2016, http://www.psycholawlogy.com/2016/07/15/emotional-intelligence-and-selecting-personnel-lawyers-for-high-emotional-labor-jobs/

 

Client developmentClient relationshipsClinical legal educationCross-cultural communicationEmotional intelligence

Loving your lawyer (part 1)

Last week once again America—or at least American lawyers—celebrated “Love Your Lawyer Day.” See also #loveyourlawyerday on Twitter. Beyond the marketing hype, there’s a good question:

What makes people love their lawyers?

The first answer is competence. A 2002 study of how the public perceives lawyers found the majority of consumer clients to be satisfied with their lawyers:

Consumers tell stories of lawyers who apply significant expertise and knowledge to their cases, identify practical solutions, and work hard on behalf of their clients.

The survey also delved into various aspect of lawyers’ performance with clients. 72 percent of clients were very satisfied with their lawyer’s knowledge of the law. The study did go into some factors beyond hard-skill competence. For example, 68 percent were very satisfied with how the lawyer handled the initial conversation.

This study did not ask participants to rank which criteria were most important, or most strongly correlated with satisfaction. It did not ask them whether they found it more important that the lawyer knew the law, as compared to handling the initial conversation effectively.

Analyzing a study of big-firm clients in the U.S. and similar studies in Australia, Professor Clark Cunningham’s paper “What Do Clients Want” delved deeper into the causes of client satisfaction and dissatisfaction. In these studies, the comparative importance of competence appears to be more complicated (emphasis added here):

Many lawyers equate client satisfaction with the outcome achieved; however, studies over the past three decades in three different countries has produced impressive evidence that clients evaluate their lawyers’ competence more in terms of the process experienced by them in the representation than the outcome.

It seems clients see competence as necessary but not sufficient for client satisfaction. Competence is the baseline, and something else is what makes the difference in client satisfaction or dissatisfaction. What is that something else?

Although there was widespread client satisfaction with the specialists’ legal knowledge and skills [in the Australian study of clients], the evaluators also found “consistent evidence of client dissatisfaction with the provision of services, and the quality of the service-delivery process.” According to this study (emphasis added):

Practitioners are concentrating on developing their knowledge and skills to deliver better outcomes; but their clients, expecting both technical competence and results, are being disappointed by the process of getting there. Clients complained about the quality of their lawyers’ services in terms of inaccessibility, lack of communication, lack of empathy and understanding, and lack of respect . . . .

The original idea for this post was to write about the “emotional labor” lawyers perform for their clients and others. Emotional labor means, basically, showing up and being constructive even when it’s difficult: “the effort it takes to keep your professional game face on when what you’re doing is not concordant with how you feel.”  Does a lawyer’s performance of emotional labor make the client “love” the lawyer more?

That question led to the more basic question of what motivates client satisfaction, which led to this overview of the studies above. (There must be more information; please direct my attention to additional good data on client satisfaction.) And the overview here suggests it will be worthwhile to explore emotional labor in more depth in a future post. Emotional labor does seem connected to accessibility, open communication, empathy, and respect.

Feedback would be welcome on clients “loving” their lawyers, client satisfaction generally, and the idea of lawyers performing emotional labor for clients, colleagues, and others. Please share thoughts in the comments or on social media.

CollaborationEmotional intelligenceLaw firm marketingLegal writingPeople skills

From “The Education of a Lawyer”

With bar results coming in from many states this week, it’s an opportune moment to recommend resources for newly minted lawyers. One good resource is Gary Muldoon’s book The Education of a Lawyer: Essential Skills and Uncommon Advice for Building a Successful Career. It has many good passages; here’s an anecdote on being receptive to feedback. Muldoon recounts how he was working on an article and sought out a prominent co-author:

The impact of the article would be greater if another person in the community was also on the byline, so I sought him out. He was receptive to the idea I was trumpeting and liked the article. Except for one sentence. He hated that sentence and would not allow his name to appear unless it was removed. The trouble was, it was easily the best sentence, in my mind, bringing the whole article together.

He could not be dissuaded, so I finally agreed, and the article appeared with both our names, minus that one sentence. No one was aware of the sentence that I so much enjoyed, so its absence was not noticed. The article had the effect I had hoped for.

Much of what we do in a law office is a team effort. In writing a brief or arguing a point at trial, I regularly solicit input from others in the office. If it’s my case, I’m responsible for the end product and have the final say, but is including their ideas important to make them feel like they have contributed? Should one care how they feel? Well, if I’m going to be asking for their ideas in the future, I better care. And yes, their comments, ideas, and changes are essential. You can do a good job on your own, but you need others to help bring out the best in your client’s case.