Tomorrow’s lawyers

August 18, 2016August 18, 2016 Jennifer Romig1 Comment

What do lawyers need to be good lawyers? A project in Denver is investing a lot of time, energy, and resources into answering that question. It’s the Foundations for Practice study, generated by Educating Tomorrow’s Lawyers, an initiative of the Institute for the Advancement of the American Legal System.

The background on Foundations for Practice is this:

In late 2014, we launched Foundations for Practice (“FFP”), a national, multi-year project designed to:

1. Identify the foundations entry-level lawyers need to launch successful careers in the legal profession;

2. Develop measurable models of legal education that support those foundations; and

3. Align market needs with hiring practices to incentivize positive improvements in legal education.

And since then, they have managed to start and finish a huge survey, reaching 24,000 lawyers nationwide. Their survey covered a breadth of law-related topics:

We asked respondents to rate the necessity of 147 foundations (plus two questions that allowed write-in responses); we asked fourteen questions to identify respondent demographics and practice information; we asked about the value of specialization in law school and in early practice; and we asked the respondents to identify the helpfulness of employment criteria (like law school attended, class rank, clinical experience, externships, and letters of recommendation).

One of their key goals was to survey what skills need to be in place when lawyers start their careers, as contrasted with skills that can and should be learned over time on the job. What’s important for new lawyers? Questions on the survey about what new lawyers need probed respondents’ thoughts in three categories:

“Legal skills” are those traditionally understood to be required for the specific discipline of law (such as preparing a case on appeal).
“Professional competencies” are skills seen as useful across vocations (such as managing meetings effectively).
“Characteristics” are foundations capturing features or qualities (such as sociability).

The overall payoff of the Foundations for Practice study is that respondents ranked these categories in the following order of importance:

1. Character

2. Professional competencies

3. Legal skills

So this is a pretty big finding: statistically, aspects of good character were reported to be the most necessary for new lawyers right out of law school. The study got to this number by finding that 76 percent of character items in their survey (items such as “integrity and trustworthiness, conscientiousness, and common sense”) were ranked by half or more of the respondents as necessary.

The next most important category was professional competencies “such as listening attentively, speaking and writing, and arriving on time.” 46 percent of these competences were identified by half or more respondents as being necessary for new lawyers.

And the final category was legal skills “such as use of dispute resolution techniques to prevent or handle conflicts, drafting policies, preparing a case for trial, and conducting and defending depositions.” For these items, 40 percent were ranked by half or more of respondents as being necessary for new lawyers.

The section of the report titled Foundations for Practice contains an overall summary of the 77 characteristics, competencies, and skills that more than half of the respondents deemed necessary for new lawyers right away. Some of the most highly rated items involve communication:

91.9 percent of respondents said it is important for new lawyers to treat others with courtesy and respect
91.5 percent of respondents said it is important for new lawyers to listen attentively and respectfully
80.4 percent said it is important for new lawyers to regulate emotions and demonstrate self-control
77.7 percent said it is important for new lawyers to demonstrate tact and diplomacy
72.9 percent said it is important for new lawyers to be able to work cooperatively and collaboratively in a team
71.7 percent said it is important for new lawyers to seek and be responsive to feedback
69.2 percent said it is important for new lawyers to demonstrate tolerance, sensitivity, and compassion
60.8 percent said it is important for new lawyers to react calmly and steadily in challenging or critical situations

Happily, the survey reveals a broad attitude that many skills can be learned on the job as lawyers. A new lawyer can learn to draft a document or take a deposition. But the study also suggests the belief by respondents that new lawyers either cannot learn character on the job or shouldn’t need to; they should already have it.

Educating Tomorrow’s Lawyers will hold its 5th Annual Conference next month. I won’t be able to attend but would welcome tweets and guest blog posts focused on communication skills from those who do attend.

Here’s another overview of the study from Keith Lee of Associate’s Mind, who also serves on the study’s advisory group. His post shows how the study’s data can be mined for more specific information.

What lawyers say, and what they actually do

July 24, 2016July 23, 2016 Jennifer RomigLeave a comment

How do lawyers transfer their knowledge? Lawyering scholars have been talking about “tacit knowledge” since the early 1990s. A recent ABA publication encouraged law students to use their externships and other practical experiences to interact with lawyers and try to glean some of that tacit knowledge via “extensive personal contact, regular interaction, and trust.” I touched on tacit knowledge in an early-summer blog post encouraging summer associates to talk with experienced lawyers about their work and to closely observe their nonverbal signals during these conversations.

This advice suggested perhaps the slightest hint of the idea that there might be dissonance in what lawyers say they do and what they actually do. An article by one of my law-professor heroes, Richard Neumann, Jr. explores this concept in depth. The article is Donald Schön, The Reflective Practitioner, and the Comparative Failures of Legal Education, 6 Clinical L. Rev. 401 (2000). It attacks superficial notions of lawyering and legal education at multiple levels.

What is the difference between what lawyers say they do and what they actually do? The real tacit knowledge is in what they actually do—which they may not be willing to describe or even fully aware of.

This insight is from the work of Donald Schön, a now-deceased professor of architecture at MIT. Schon’s ideas and Neumann’s exploration of them aren’t new, but the insights remain relevant and helpful.

Schön sought a deeper understand of tacit knowledge, questioning its foundations:

[T]acit knowledge is not necessarily accurate knowledge. Because it is tacit, it is also unexamined.

And because it is unexamined, it may be worthy of the term “knowledge” only in sarcastic quote marks:

The tacit ‘knowledge’ of an ineffective professional might be nothing more than superstition—and correspondingly dangerous to clients.

Schön questioned professionals’ capacity to understand and describe their own work. What professionals think they do and what they actually do are often entirely different. Here he used two terms to categorize false and real tacit knowledge. (Neumann, while clearly a fan of Schön’s work, didn’t really like his terminology, and here you may feel a particularly strong urge to close this browser window. But consider plowing on.) Schön’s terms distinguish what a professional says about the work from how the professional actually does the work:

A “theory of action” is how a person describes the work they do.
A “theory-in-use” is what actually governs the person’s actions.

As a result, we can only learn a person’s true “theory-in-use” by observing their behavior. More broadly, this discrepancy “makes it harder to improve how professionals work.” A lawyer might resist making a change out of the mistaken belief about what she is actually doing. “Because our theory of action seems satisfactory to us, we do not see any reason to change.”

And willingness to change isn’t necessarily sufficient to make a real change. “[E]ven if we can be persuaded to change, we might be satisfied” just by changing our theory of action. This is a change in name only if “we continue what we were doing before because our theory-in-use remains unexamined and controls our actions.”

I’ve thought about this concept with legal writing, and writing generally. It’s much easier to change one’s nominal theory of action, especially if that means adopting new writing software or formats or labels about what one is doing. In an article titled Fighting “Tippism,” Stephen Armstrong and Timothy Terrell wrote about how superficial writing “tips” are no substitute for the real work of learning and using the lessons of rhetoric, logic, and cognitive psychology.

In the realm of listening, the problems equally difficult if not more so because listening is so difficult to observe and measure. One may have a theory of action that they are in fact a great listener and an active listener. They are totally on board with the value of listening.

But their theory-in-use could be quite different. How well someone listens can be described in three major categories, according to Melissa Daimler, Head of Learning and Organizational Development at Twitter, writing for the Harvard Business Review Blog:

Internal listening is focused on your own thoughts, worries, and priorities, even as you pretend you’re focusing on the other person.

Focused listening is being able to focus on the other person, but you’re still not connecting fully to them. The phone may be down and you may be nodding in agreement, but you may not be picking up on the small nuances the person is sharing.

360 listening. You’re not only listening to what the person is saying, but how they’re saying it — and, even better, what they’re not saying, like when they get energized about certain topics or when they pause and talk around others.

A lawyer may believe he is a 360 listener, when in fact he is an obstinately internal listener. This mismatch of belief means the lawyer does not feel any need to work on listening because how can you improve upon something already pretty terrific?

And if such a lawyer does read a blog post or attend a training on listening, she might pick up a new term of art for listening, such as “I’m a 360 listener,” while remaining rather poor at it. This obviously connects to the Dunning-Kruger effect of being so bad at something that you don’t even know you’re bad.

Schön and a collaborator apparently tried to address this difficulty through seminars and training that guided participants to confront the differences between their theories of action and theories-in-use. They sought to help professionals recognize two major approaches to going about professional work:

Model I exhibits “highly developed rationality and a commitment to goals and winning.”
Model II “develops the largest amount of valid and relevant information and generates the largest number of options from which to choose.”

Model I sounds a lot like a stereotypical lawyer personality. That’s not good news. Model I—also known by Robert Condlin’s term “persuasion mode”—has a lot of problems. Persuasion mode is sometimes useful and beneficial, but as a default personality it has some significant pitfalls, as described in Neumann’s article:

[A] person in persuasion mode tends to act on hidden agendas and strategies; “to minimize self-analysis and to reserve it for private moments when it will not weaken instrumental effectiveness”; and to argue in ways that are subtle but “needlessly stylized and hyperbolic.” Persuasion-mode behavior is profitable in situations where the struggle is for control rather than insight, and where the “self-sealing properties of persuasion mode habits” minimize tentativeness and perplexity. “Persuasion-mode habits predispose lawyers to take evaluative stands automatically” so that they “make statements that, on reflection, they know to be false.” “It causes one to impute rather than explore others’ ends, shut off rather than encourage legitimate objection, . . . and accumulate rather than share decision-making authority.

The other possibility is the learning mode, also known as the inquiring mode. Neumann’s essay on Schön explores how the inquiring mode is more consistent with curiosity, open-ended thinking, and exploration of ideas regardless of consequences. A number of benefits accrue to clients and lawyers, with more meaningful and effective collaboration at the top of the list. The collaboration is better in at least two ways: First, the lawyer does not have to maintain a “professional façade” of being the expert. “The ‘expert’ will want “deference and status in the client’s response to [the] professional persona,” while the reflective practitioner will prefer a ‘sense of freedom and of real connection to the client.’” At the same time, a client may feel more comfortable with a lawyer in persuading mode because the client can sit back and rely on the assumption the lawyer is the expert and will do everything right. A more reflective lawyer can create a more reflective relationship with the client. In these relationships, lawyer and client “join” in making sense of the case. The client gains “a sense of increased involvement and action.”

With the inquiring mode, lawyer-client collaboration is better in at least two ways: First, the lawyer does not have to maintain a “professional façade” of being the expert. “The ‘expert’ will want “deference and status in the client’s response to [the] professional persona,” while the reflective practitioner will prefer a ‘sense of freedom and of real connection to the client.’” At the same time, a client may feel more comfortable with an “expert” lawyer in persuading mode because the client desires the comfort of passive reliance. A more reflective lawyer can in turn create a more reflective relationship with the client in which lawyer and client “join . . . in making sense of the case.” The client gains “a sense of increased involvement and action.”

Neumann’s review of Schön’s work ends on an extended exploration of how difficult it is to teach any of this in a formal curriculum—especially the curricula of medical and law school as distinct from the arts and architecture. Teaching reflection and modeling it in experiential classes are crucial. One way to start is simply by sharing with law students and lawyers Schön’s essential and upsetting insight that the way we intuitively explain what we do may not be very accurate.

More on flow and listening

July 7, 2016 Jennifer RomigLeave a comment

Feeling “flow” means being fully immersed in a challenging task, with a sense of energy and enjoyment. Lawyers might find flow when they have enough skilled experience to know what they’re doing and encounter a new challenge using their skills, as previously mentioned in this post. The founder of flow theory, Mihaly Csikszentmihalyi, created a visual model of flow:

Screen Shot 2016-06-14 at 5.20.20 PM — Credit: Wikipedia (citing Csikszentmihaly, *Finding Flow* (1997))

As you can see the states inferior to “flow” reflect a mismatch between skill and challenge:

Apathy
Boredom
Worry
Anxiety

States with a closer match can be found closer to the upper-right:

Control (but the skill slightly outweighs the challenge)
Arousal (but the challenge slightly outweighs the skill)

In the far upper right area, where a high skill level meets a high challenge level, you find flow.

The model below is a variation on Csikszentmihalyi’s general model, tailored for lawyers and legal professionals. The examples here all focus on listening.

Please use the comments or social media to suggest other examples and share thoughts on lawyers and flow. What types of listening experiences prompt apathy or boredom? What types of experiences prompt worry or anxiety? And what experiences may lead to flow?

Listening for summer associates

June 1, 2016July 23, 2016 Jennifer Romig1 Comment

A successful summer-associate experience means doing good work and creating good social impressions. Listening skills can help with both.

The assignment and the work

The most obvious place to talk about listening and work product is in the incredibly important meeting where the senior lawyer communicates the assignment.Here’s a checklist for listening while taking an assignment. One theory of checklists is that they shouldn’t include the obvious things everybody already knows and does. If you read Atul Gawande’s Checklist Manifesto, you will learn that effective checklists should not be overloaded with obvious items no one actually forgets to do. But in case it’s not obvious, let me quote one to-do item (thrice repeated) in The Vault’s advice piece on “Acing Your Law Firm Summer”:

Bring a pad and pen to this meeting. Bring a pad and pen to this meeting. Bring a pad and pen to this meeting.

The advanced skill is to take notes while still asking good questions and maintaining a conversational tone. And an even more advanced skill is perceiving what isn’t there. Legal writing guru Ross Guberman has suggested that “in this iPhone age, supervisors often forget to relay key information.” Reviewing a checklist before the meeting can help prompt good questions during the meeting to bring out valuable information.

Confirming the assignment in writing after the meeting can prompt the attorney to share further crucial information: “Attorneys are text people, so seeing your write-up might help your supervisor steer you onto the right track before it’s too late.” And this type of confirmation can showcase listening and writing skills as well. But I’ve also heard attorneys express annoyance at receiving e-mail back confirmations of every assignment-related conversation. The more formal and significant the assignment, the more appropriate it is to confirm the facts and assignment in writing.

Listening can play a broader role even before the assigning conference. It has to do with picking up underlying knowledge and context for doing the job well. The most effective legal work product is effective partly because it is grounded in the lawyer’s understanding of that area of law and how it works in practice. Lawyers with experience in a particular practice area are more effective than beginners at what they do partly because they have “tacit” knowledge—that is, knowledge that is not written down and is difficult to share.

The ABA’s Before the Bar publication highlighted the role of tacit knowledge and why it’s so important to aspiring lawyers:

Your goal should be to gain tacit knowledge in order to build your practical skill set. To do this, attorneys need to transfer their tacit knowledge to you and the most effective way to do this is through extensive personal contact, regular interaction and trust. In other words, tacit knowledge is transferred through practice.

Summer associates cannot be expected to have the tacit knowledge that veteran lawyers in a practice area do. But summer associates who show they can pick up tacit knowledge quickly and apply it in their work are likely to stand out. For example a patent lawyer needs different ways of communicating with engineering clients and generalist judges. That’s maybe not a great example of tacit knowledge because it’s not so difficult to share.

Perhaps a better example is what it’s like to work with clients who don’t necessarily feel a great deal of affection and affinity for the law or lawyers in general. To take this social example a bit further, what is it like to work with clients who have a strong in-group identity? Let’s take doctors or more specifically surgeons, for example. Clients with a strong in-group identity may or not be willing to trust lawyers hovering at the edges of the in-group, and the most effective lawyers are highly perceptive about how to work with such clients. (Highly successful sports and entertainment lawyers come to mind here as well.)

Tacit knowledge about how a lawyer and a law firm go about working with such clients can help not just in a general social sense but with performing the substance of the work. The way a lawyer would communicate with such clients is very different from communicating with a legal writing professor or a senior lawyer. The substance of how to be successful in these settings goes beyond broad statements like “think of your audience” and easily transferable points like “don’t use legal jargon with non-lawyers.” In the ABA article, author Max Rosenthal went on to assert that all practical legal skills are rooted in tacit knowledge—not only writing and communication, but analysis itself.

Listening can help a summer associate begin to access some of this tacit knowledge. Through “shadow” programs and being invited along on a deposition or other legal event, summer associates can just watch, listen, and learn. As with good law-school externships, these opportunities may be some of the most inclusive and rare opportunities to listen and learn, relatively free as they are of the pressure to bill time.

Tacit knowledge is, by definition, difficult to access directly. But conversations with lawyers in a practice area may be a start. Good conversations before any particular assignment can yield information about how lawyers do their job well in a particular practice area with particular types of clients. Show curiosity. Ask them about their experiences, successes, and challenges in that practice. What do they wish they had known when they started? Listen carefully to their words, and watch their nonverbal communication as they share their experiences. What are they telling with their nonverbal communication, as well as showing with their words? All of this information is valuable toward understanding this person and this person’s experience in this area of law. For good listeners who are curious, every piece of information they collect helps them do their work more effectively.

Social skills

Summer associates need to show that not only can they do the work, but they are also a “good fit” at the firm internally and can be trusted to interact with clients. These concerns mean summer associates should work on all kinds of social skills such as dressing appropriately and monitoring alcohol intake.

Listening helps across the entire spectrum of social skills. Here are just a few examples:

Showing curiosity by asking good questions and responding appropriately to the answers to continue the conversation
Knowing when to sit back and observe, such as when a senior lawyer is interacting with the client and the summer associate has the good fortune to be there
Maintaining focus on the situation even when not playing a direct role
Being able to converse informally (such as at a happy hour) by starting a conversation, bringing other people into the conversation, and leaving a conversation
Demonstrating recollection of earlier details and bringing them into later conversations appropriately

Evaluating listening

There don’t seem to be any published summer associate evaluation forms, but it is a certainty that they include criteria for effective communication skills. Communication involves four distinct channels: reading, writing, speaking, and listening. Listening may not be mentioned explicitly to the same extent as effective oral and written communication, but it is part of effective communication.

Listening can be subtle and hard to measure. It’s so difficult to say whether another person is a good listener or a great listener. But when it comes to human perception and evaluation of others, “bad is stronger than good.” That means a hiring committee’s evaluation discussions may focus on problems or concerns, rather than subtle gradations of what went well. Some aspects of poor listening may be hidden—for example, not catching the subtleties of an assignment and therefore writing an acceptable memo that misses an opportunity to add value. (More on adding value below.) But some bad listening is very easy to spot. Looking at one’s smartphone while in the presence of a Very Important Person would be one example of what not to do.

Adding value and building professional identity

Listening can help a summer associate achieve the most nebulous and most important goal of all—“adding value” to the legal work of the firm. It’s a buzzword and maybe even a cliche, but there are ways for summer associates to add value by listening. Observing a deposition could provide an opportunity to watch the witness’s body language and suggest a follow-up question after a break. Shadowing a corporate lawyer could open up conversations about different ways to handle a type of transaction depending on the client’s goals. Asking questions that demonstrate understanding and curiosity about the profession suggests a greater long-term potential for adding value.

And listening can also help the summer associate directly with an more individual goal (one that is also nebulous but also important): building that summer associate’s own professional identity as a lawyer. One definition of professional identity is “the way a lawyer understands his or her role relative to all of the stakeholders in the legal system, including clients, courts, opposing parties and counsel, the firm, and even the legal system itself (or society as a whole).” (This is from Scott Fruehwald’s book Developing Your Professional Identity: Creating Your Inner Lawyer, quoting an article by Martin Katz on teaching professional identity in law schools.)

Certainly law school is a place where professional identity starts to form; taking those skills out into the almost-real-world of being a summer associate should be an even more meaningful opportunity to do so. However the summer turns out, it will have been some kind of step on the way towards a more fully formed professional identity.

This post was updated from its original form to include the ABA article recommending practical experience as the method for law students to acquire tacit knowledge.

For more reading on listening and summer associates: Listening as a hard skill and a soft skill

For more on checklists and legal writing: The Legal Writer’s Checklist Manifesto

Talking means making mistakes (and that’s okay)

April 15, 2016April 15, 2016 Jennifer RomigLeave a comment

Sherry Turkle’s Reclaiming Conversation: The Power of Talk in a Digital Age has been on my reading list for a while now. I’m in the process of reading it and was stopped cold by something on page 54. Turkle is talking about “the flight from conversation.” The flight from conversation basically means kids these days—and yes, their parents too—don’t want to talk and will take active steps to avoid conversation.

I’m in the process of reading it and was stopped cold by something on page 54, a reference to a law student in the making.

This is a pretty big book, and in the first section (which includes page 54) she goes to lengths to lay out her basic premise about “the flight from conversation.” This flight affects every facet of life and goes down very deep in the psyche. The most worrisome suggestion is that an intense digital life (at the expense of a social life) doesn’t just make people inefficient or unempathetic at that moment, but it actually stunts emotional growth.Turkle describes the work of Stanford psychologist Clifford Nass showing that spending too much time with social media and its “thumbs-up” emotional culture deprives frequent users of the ability to process more complex negative emotions. These people then become even less able to respond appropriately and quickly in real-life situations involving negative emotions. This diminishing skill set creates a downward cycle driving people to avoid difficult face-to-face situations and to seek out comfortable digital forms of communications.

Page 54 is part of this background. It caught my eye because it featured an aspiring law student. Turkle frames this anecdote as “[t]he desire for the edited life”:

A college senior doesn’t go to his professors’ office hours. He will correspond with his teachers only through email. The student explains that if he sees his professors in person, he could get something “wrong.” Ever since ninth grade, when his preparations to go to an Ivy League college began in earnest, he and his parents have worked on his getting everything “right.” . . . Now he is three years through that Ivy education and hoping for law school. He is still trying to get things right. “When you talk in person,” he says, “you are likely to make a slip.”

He thinks his no-office-hours policy is a reasonable strategy. He tells me that our culture has “zero tolerance” for making mistakes. If politicians make “slips,” it haunts them throughout their careers. And usually they make these mistakes while they are talking. He says, “I feel as though everyone in my generation wants to write things out—I certainly do—because then I can check it over and make sure it is okay. I don’t want to say a wrong thing.”

I really wish I could reach out to this student. If he’s in law school now and if his first-year professors have used the Socratic method in any way, shape, or form, he has probably had a pretty rough transition. And whether he’s in law school or not, somehow he’s going to have to face a terrible realization: conflict and imperfection and mistakes and regret are

And whether he’s in law school or not, somehow and sometime he’s going to have to face a terrible realization: conflict and imperfection and mistakes and regret are all a reality, for all of us. You can run but you can’t hide. So he might as well build some strength now, ideally with a matching dose of empathy and humility, to deal with them as best he can.

I would also introduce him to the concept of a “growth mindset” as popularized by Carol Dweck of Stanford. A growth mindset is consistent with effort, mistakes, learning, and forward progress. What you are at the beginning of college/law school/a new job/anything is not your destiny.

The opposite is a fixed mindset, which is the concept your skills can be uncovered and revealed by testing but not truly built up or changed. The fixed mindset has a lot of disadvantages. One of them is a possible correlation with unethical conduct. A person’s desire to conceal a mistake might make that person dangerous. Being terrified about making a “slip” can lead to covering up mistakes, not seeking help, and in general turning potentially small problems into much worse.

This is just one reflection on the wealth of points in Turkle’s book. I’m still reading it! Throughout the summer I will be blogging about passages of interest, and perhaps even trying a Twitter chat at some point.

Read Jonathan Franzen’s New York Times review of Reclaiming Conversation here.

Is teamwork the same as collaboration?

March 31, 2016 Jennifer RomigLeave a comment

Earlier this week Listen Like a Lawyer discussed Google’s teamwork study investigating the qualities of effective teams. In the post I mentioned that teamwork is so important in part because many cases are too complex for one person to manage. One bit of feedback on the post agreed that teamwork is “vital now for successful legal practices.”

Shortly thereafter I ran across this post from Lisa Needham at the Lawyerist, “Too Much Teamwork is Terrible.” The post ends with a plea:

Ban teamwork. Or at least reduce it drastically.

Both the Google article in praise of effective teams and the Lawyerist post against teams cite the same Harvard Business Review study concluding “the time spent by managers and employees on collaborative activities has ballooned by 50% or more.”

So if teamwork is so good, why is it so bad?

I think the real issue is the difference between formal teams and informal collaboration throughout an organization.

The Google study profiled in the New York Times seemed to focus on formal work groups—groups formed by assignment to address some specific task or role over time. These work groups seem analogous to a group of lawyers assigned to a client service team or a specific deal, trial, or other project.

The Harvard Business Review article on collaboration appears to be addressing a much broader phenomenon. It’s not just about the dynamics inside individual work groups assigned to discrete projects, but also about collaboration throughout an organization. Collaboration may take the form of sharing information, sharing social resources, or sharing one’s own time and energy—which, unlike the first two categories of collaboration, is a finite and exhaustible resource. These can happen within a formal team or in broader, more diffuse ways throughout an organization. A person who is willing to collaborate with others may be subject to “escalating citizenship” in which workers who want to help become so over-burdened that they become a burned-out bottleneck. To quote the article, the “virtuous cycle” of collaboration turns “vicious.”

I’m no Adam Grant, but if this distinction is correct, then the Google study and the Lawyerist post are also both correct. Complex long-term problems and strategic goals cannot be solved by lone-wolf lawyers. Therefore, lawyers working in formal teams can benefit from studying their group norms and seeking to collaborate most effectively. These types of teams should not be disbanded or reduced in scope.

On the other hand, managers should monitor the collaborative burdens across their organization to avoid inefficient, inequitable demands on “extra milers” (quoting the HBR article) being asked to collaborate beyond the scope of their roles.

Of course there is a challenging question in the middle of this: work groups formed not for direct legal service but for internal firm/agency management. In other words, firm committees. These groups can certainly benefit from studying dynamics in the spirit of the Google study. But the HBR study and Lisa Needham’s critique raise the question: what is the reward structure of the firm or organization, and is collaborative committee work compromising individuals’ capacity to participate in that reward structure?

For insight into this question, I would first recommend Helen Wan’s great novel The Partner Track.

On a more quantitative note, the HBR study suggests collecting and assessing data about who is doing what. It also suggests employee surveys and 360 feedback. To take a 50,000-foot view of these suggestions, it seems that one way to begin to address this question is by listening.

Teamwork for lawyers

March 29, 2016 Jennifer RomigLeave a comment

The thing I’ve most wanted to share here in recent months has been “What Google Learned from Its Quest to Build the Perfect Team,” published in the New York Times Magazine’s recent Work Issue. Building perfect teams—or at least more effective ones—is pretty important for the legal profession. For law firms, the complexity of many legal matters demands collaborative work. Yet client teams—and other types of teams such as deal teams and trial teams—are more likely to fail without a good understanding of team dynamics. And “law students baulk at the idea of group work.”

To understand why some of its teams performed better than others, Google launched a large study. At first no patterns emerged. Eventually, the key issue was something a bit more abstract than any specific metric. The issue was “group norms”:

Norms are the traditions, behavioral standards and unwritten rules that govern how we function when we gather: One team may come to a consensus that avoiding disagreement is more valuable than debate; another team might develop a culture that encourages vigorous arguments and spurns groupthink. Norms can be unspoken or openly acknowledged, but their influence is often profound.

The impact of group norms on team performance was critical. It could make a team of individually “average” performers out-perform other groups. And it could make a team of individual rock stars perform poorly.

So if effective teams could be built upon consensus of any type—either to argue all the time or to build consensus all the time—then is there really any content to the idea of effective group norms? Actually, yes. The Google study found two common traits of good teams. This is where listening comes in:

Actually, yes. The Google study found two common traits of good teams. This is where listening comes in:

First, on the good teams, members spoke in roughly the same proportion, a phenomenon the researchers referred to as ‘‘equality in distribution of conversational turn-taking.’’ On some teams, everyone spoke during each task; on others, leadership shifted among teammates from assignment to assignment. But in each case, by the end of the day, everyone had spoken roughly the same amount. ‘‘As long as everyone got a chance to talk, the team did well,’’ Woolley said. ‘‘But if only one person or a small group spoke all the time, the collective intelligence declined.’’
Second, the good teams all had high ‘‘average social sensitivity’’ — a fancy way of saying they were skilled at intuiting how others felt based on their tone of voice, their expressions and other nonverbal cues. One of the easiest ways to gauge social sensitivity is to show someone photos of people’s eyes and ask him or her to describe what the people are thinking or feeling — an exam known as the Reading the Mind in the Eyes test. People on the more successful teams in Woolley’s experiment scored above average on the Reading the Mind in the Eyes test.

The broader impact of these two traits is that team members felt “psychological safety.” The New York Times article cited a study by Harvard professor Amy Edmondson describing psychological safety as “a sense of confidence that the team will not embarrass, reject or punish someone for speaking up.”

This article and the concepts it describes should, in my view, be required reading for any law school activity based on teams. It seems like a pretty good idea for law-firm managers as well. The lead researcher on Google’s Project Aristotle study became interested in the topic while attending graduate business school. She had one team that didn’t click, didn’t exactly fail but also didn’t prosper, and didn’t stick together for future projects. And she had another team that clicked and succeeded in competitive environments even though the group dynamics didn’t feel internally competitive.

Law students who’ve done any sort of group work and lawyers working collaboratively have similar stories. This article helps to explain why these teams end up the way they do. And it begins to address even more difficult questions about taking steps to create effective team dynamics from the outset and to make existing teams more effective.

Better Lawyering Through Better Listening

February 29, 2016February 29, 2016 Jennifer Romig1 Comment

What are your key strengths and weaknesses as a listener? How can you, as a lawyer or legal professional, actually become a better listener? What listening techniques can lawyers use to be more effective with clients, witnesses, judges and mediators, and others (perhaps loved ones)?

I’m pleased to be collaborating on a CLE workshop that will help attendees explore these questions and gain a better understanding of listening skills for lawyering.The workshop will take place in Tucson, Arizona, on March 10 in conjunction with the International Listening Association‘s annual convention.

Presenters Jennie Grau and Anita Dorczak will facilitate the session in person, and I am working on video contributions right now. One fun project has been working with several wonderful colleagues and students at my law school on video demonstrations of “bad” and “good” listening skills in legal settings. I must confess it was easier to write and create the bad examples. I’ve also been rounding up a variety of statistics related to listening and lawyering. (Blog post coming soon.) There’s a lot of great research out there, but also several widely accepted yet unsupported urban myths of listening.

Anita is a Canadian family lawyer and mediator, and Jennie is a communications consultant and speaker. Collaborating with these presenters has been a wonderful experience because they are not only smart and creative and talented speakers but also—not surprisingly—such skillful listeners. Arizona lawyers who attend the session are in for a unique experience including role-plays and the opportunity to take an individual “listening inventory.” Boring PowerPoint and lecture, this is not.

The International Listening Association is an eclectic group with connections to many disciplines such as health care, business, spirituality, cultural studies, teaching, and research.

Lawyers, mediators, and other legal professionals are invited to attend the conference for a one-day rate (4 hours of CLE). The full information can be found here. Fees for the session go to the International Listening Association. This is a labor of love for the presenters—which is actually the theme of the whole convention, Listening: A Labor of Love.

Mindful interactions with colleagues

January 19, 2016 Jennifer RomigLeave a comment

Mindfulness and listening go together in a lot of ways, some obvious and some subtle. A recent HBR Blog post, “See Colleagues as They Are, Not as They Were,” challenged readers to be more mindful in working with colleagues, especially longtime colleagues.

The post defines mindfulness as “noticing what is happening in the present moment, without judgment.” And thus the post raised the question: when we interact with colleagues, are we present and mindful of who they are now? Or are we substituting our own mental shortcuts of who they were and what they’ve done in the past? The post encourages readers to “See your colleague as they are today, not how you remember them from yesterday”:

[A]s an experiment, simply notice your colleague afresh. How do they look today? What is their tone of voice? What are their facial expressions? Are they really saying the same old stuff, or is there something new to be heard that you could notice and appreciate?

Noticing colleagues afresh is a challenge. This is partly general human nature: “By the time we have worked with someone for a few months or years, we have developed expectations for what they will say and do.” It’s always been that way, of course.

The ever-present role of email only exacerbates these expectations. The author, Duncan Coombs, describes his findings that email communications reinforce and solidify expectations about coworkers:

I’ve previously written with my good friend and colleague, Darren Good, about the “flash images” we form about people when we see their names in our inboxes. This flash image, based on past experiences, happens before you even read the content of the email, and then influences the way we read the email. While this is a normal part of brain functioning, it has a potentially adverse impact when our negative lens leads to negative interpretations.

I believe the legal workplace suffers from these issues as much as any other industry, and maybe more so (at least in law firms).

An associate does good work, and she builds the “halo effect” around everything she does—whether the work remains stellar or not. Another associate produces a weak assignment or two, and she her billables just start fading away. The effect cuts the other way too: Associates may develop positive expectations about working with a particular partner, which lead them to enjoy the work and do it well. Conversely some partners may engender a sense of existential dread among associates prodded onto their teams. The same effect influences relationships with paralegals, administrative support staff, and legal professionals throughout the firm. And the e-mail “flash image” reinforces all of the above.

Many would say this is far from a problem; in fact it is (a) reality and (b) a good thing.

In a law firm, an associate builds her reputation—for better or worse. Keith Lee wrote about the difference in personal brand (what you say about yourself) and reputation (what others say about you) . The work inside a law firm flows toward the individual lawyers with strong reputations, and away from others. Individual lawyers’ reputations are important because they contribute to (or detract from) the overall health of the law firm.

This is true in any business of course, but the competitive reality of law practice and the pessimistic mindset of lawyers may exacerbate it. As one lawyer stated to Law360 in giving advice and admonitions to new associates, “what takes years and hard work to build can be lost in a second with one bad decision or lapse of judgment.”

I don’t think the HBR post is arguing against a lawyer’s earned reputation and its deserved effects. Nor am I, here in this post.

I think the post is digging into the process of how a reputation happens in the first place. If a reputation comes about from non-mindful, even lazy mental shortcuts of others based on insufficient, incomplete, or inaccurate information, reputation is not only not a good thing but actually bad or at least far from optimal. Consequences that come to mind include frustrated individual working relationships that result in less accurate information, less effective distributions of work, wastefully “writing off” legal professionals despite achievements and potential, and shrinking or illusory opportunities for professional development.

Is working with someone for “a few months” enough to accurately define that person’s capabilities and, accordingly, their reputation? Even if a working relationship has lasted years, could a person actually change?

These questions open up numerous discussions on assessment and evaluation, as well as a “growth” or “fixed” mindset about human capacity, with implications too big for one post. At the individual level, the HBR post goes on to some positive recommendations for interacting more mindfully with colleagues:

As an experiment, consciously seek to notice something positive about the person. What is one thing about this person that you appreciate? What is one thing they say that is helpful? What is their contribution to the organization? What is their single greatest strength? Focus on that and pay total attention to that one thing. Hold that focus and make that your first “foothold” on the path to an improved relationship.

These are recommendations that some skeptical lawyers may find naive. Supervisors who complete and sign semi-annual evaluations simply don’t need to make this effort. There’s a path of less resistance: directing their work and their time to other associates and legal professionals where the positive reactions come more easily and naturally. (Thus it’s very good advice for new attorneys to treat partners like clients from day one, and try to avoid this situation in the first place.)

But for attorneys and legal professionals who are committed to—or stuck in—working arrangement for some time, this positive advice may be helpful to frame more mindful, constructive interactions.

For more on mindfulness, see the work of Jeena Cho. Her book, The Anxious Lawyer, will be coming out this year. Her course on “Better Lawyering through Mindfulness” touches on mindful listening and many other topics. She writes for Above the Law.

This article originally from the Vermont Bar Journal and now posted on the Ohio Supreme Court’s website also touches on themes of mindfulness in interacting with others.

Resolution: Delight them

January 8, 2016 Jennifer RomigLeave a comment

Delight your clients.

That’s a good New Year’s Resolution for lawyers, right?

It’s an entrenched, almost clichéd piece of general business advice. But should lawyers try to delight their clients? It seems like the answer should be “of course!!” But what does that even mean?

A recent reference to delighting the client prompted this post, “3 Vital Mindsets for Creating Impact for the Legal Industry” by Seyfarth Shaw’s Laura Maecthlen on Medium. She reflected back on her hectic law practice in the final month of 2015, when she wasn’t thinking broadly about the legal industry but rather working away with depositions, negotiations, and a lot of detailed, focused, specifically client-centered work.

This day-to-day level of law practice, Maecthlen suggested, is an under-appreciated source of ideas about legal innovation. Those ideas should come not only from large-scale abstract thinking about the legal industry, but also from “the everyday activities of working lawyers . . . in the trenches of our legal system every day.” As she wrote,

It is in this space — personal, one-on-one and face-to-face — that we create real change for ourselves and each other.

And this observation—essentially, “small is the new big”—leads to the question of delight:

With all the talk of innovation in our industry, a person could easily lose track of the real goal of innovation, which is to create positive impact. If you stop to consider what we as practitioners are trying to accomplish, you realize it’s simple: higher-value client solutions aimed to delight our clients. Innovation is only one means to achieve this.

What do others say about delighting clients in the legal industry?

On a positive note, legal marketer Merrilyn Astin Tarlton advised lawyers to surprise and delight their clients in several ways. Drop in on their clients, free of charge, and learn more about their business. (This is common but excellent advice.) Give compliments. Help clients see patterns and prevent those patterns from occurring, such as better training and policies to reduce a pattern of lawsuits. Over-deliver and deliver early, rather than setting suggested deadlines and then meeting them just barely or missing them. Say thank you, often.

But the delight concept often comes wrapped in some more ominous tones.

Non-delighted clients are less likely to be long-term clients, and many lawyers are deluded about their clients’ level of delight. That was a theme developed by lawyer and and knowledge-management consultant V. Mary Abraham interviewed legal leadership consultant Susan Hackett. The post is “Focus on Clients; If You Delight Them They Will Stay.” Hackett’s work shows that 85 percent of outside counsel give themselves an “A” for their work, but only 35 percent of in-house counsel would in fact recommend their outside counsel to other clients.

What can lawyers do to climb into that 35 percent—to get that “A” grade and make the client “fall in love” with their services? One big step has to do with listening, with two necessary sub-parts to make it work. Part one is about asking meaningful questions of clients:

The very best way to deliver value to each client you serve is simply to ask them what it is that they value, what it is that you’re doing right or could do better, what it is that other lawyers or service providers offer them that makes them pleased with the service, and how it is that you personally could improve. Ask it in person, ask it in surveys, ask it outside the course of matters, ask it during the matters on which you’re serving. Saying once a year over dinner, `so how are we doing?’ is going to get an answer as specific as `just great.’ Trust me, that’s not the feedback you need.

And part two is about listening to and doing something about that feedback:

Asking for feedback is not the same thing as acting on it. Too many of us ask for feedback and then we sit back and `admire’ (or ignore) the results. Instead, we need to take actions that allow us to improve from the feedback. If you receive positive feedback, look for ways to apply the principles underlying your success to other kinds of work. At a minimum, when the evaluations relate to performance, include them in the performance reviews of those involved. After all, if lawyers’ compensation and advancement are only tied to the number of hours they’ve billed, and not to how well they serve clients, we’re all in trouble.

Delight also came up in the context of “in-house counsel gripes” which is practically its own genre of posts on Law 360. Rich Baer, then of Qwest Communications and now Liberty Media, urged lawyers to borrow the delight aspiration from non-legal businesses:

When you’re thinking about client service, don’t think like a lawyer, think like the owner of a great restaurant or the manager of a wonderful resort and really strive to delight your client every time you’re dealing with them.”

While this statement itself is positive, the rest of the post (which quoted other in-house counsel as well) essentially bludgeoned the reader with what not to do. Don’t surprise the client, don’t max out bills, and don’t send 50-page memos when short e-mails can give the same information. (The post also quoted Baer criticizing outside counsel who fail to share a “simple thank you for the business”—the mirror-image of Tarlton’s advice to say thank you often.)

Thinking about what not to do brings us back to the business theory of whether delight should be a client service goal at all. If you search “delighting customers,” the top result is a Harvard Business Review piece urging the opposite: “Stop trying to delight your customers.”

The article argued that the vast majority of decisions are made not because someone is delighted and drawn to the amazing service of a business. Rather, these decisions are made because of being annoyed, put off, frustrated, and otherwise subject to terrible service. Customers have the impulse to “punish bad service” much more so than to “reward delightful service.” (This idea is rooted in psychological studies that “Bad Is Stronger than Good” previously discussed on the blog here.)

Therefore, the HBR piece argues, the better approach to customer satisfaction is not delight but “reducing their effort—the work they must do to get their problem solved.”

In her post on goals for 2016, Seyfarth Shaw’s Maecthlen was onto this as well. She urged finding clients’ “pain points” and making “process improvements” to address them. (This rhetoric is consistent with the legal project management movement that sometimes speaks in the language of delight.)

Addressing pain and process comes up in so many different ways. Many process improvements are substantive, like the suggestion above about recognizing and mitigating a pattern of small sporadic lawsuits. Of course the method of communication itself may be a pain point as well.

Here, as I write on a Friday afternoon, a small but specific example comes to mind. Some clients may not enjoy receiving a barrage of legal updates late Friday afternoon as lawyers clean and close their own inboxes. The lawyer may feel a sense of respite and reprieve, while the client now has a list of things to do just at the beginning of the weekend. Other clients may appreciate a regular consolidated end-of-the-week update. What is their preference?

Asking what they want and respecting that preference is not all that innovative. But, to paraphrase Laura Maechtlen, it’s this one-on-one and face-to-face work that can—perhaps—add up to a sense of delight.

Listen Like a Lawyer

Exploring effective listening practices for lawyers, law students, and all legal professionals

Category: Professional development