Practical Practice Tips: Taking Control of Your Schedule

So here is the typical routine:  clients that demand not overnight but one-hour turnaround, associates that don't hand in assignments on time, working into the night to deliver a reasonable product (see the first two), phone conferences scheduled for 6 am, which turn out to be at 3 am in California, where you are that week, except that the number you have is wrong so you are still late to the call after getting up at 2 am, the managing partner on your case repeatedly for missing committee meetings or failing to finish firm administration projects, a significant other who complains about the unfair burden he/she has to carry while you sit in meetings at wee hours, kids or other family members who chide, ok snarl, about how infrequently you make it to family events, no consistent exercise since last year in spite of your second new year's resolution, drinking a little too much on the late side and getting up a little too early (or too late) on the early side, all of which can coalesce into an angry showdown with any one or more of these players--unless you succeed in your attempts to avoid them all.

Does that sound like your life or someone else's you know?

The first step in taking control of your life is being able to actually see how your life is currently organized.  Can you accurately say when you arrive for work and leave most days and how much time you spend evenings on work? And how much you spend on personal and/or family time? Do you shave off a little time when you tell the family what time to expect you or when you estimate time charges for the client? Are you plagued by back-to-back meetings, half of which seem unnecessary? Do you admit to friends and family what your workweek really looks like or do you downplay the time demands and the stress?

Pretend you are talking about someone else and write down your real schedule for all aspects of your life, your actual conflicts and stresses and, while you're at it, your free time (short list).  Would your colleagues and significant other/s agree?

Once you can honestly see your life, the second step is coming to understand whether your life is the way it is on purpose.  Or because you are unconscious of your choices. Do you honestly know which parts of your workday are enjoyable and which are not?  Are you always apologizing to others for those early phone calls, swearing under your breath at how exhausting they are? Or is it possible that you actually like how they get you up and off to a good start on a busy day?  Make you feel important that others need your input before they can proceed? 

So next to your typical day's activities, write down whether they are enjoyable (possibly another short list) or not, and to what degree for each--neutral, somewhat, very.

Now comes the time to figure out how you can reduce the amount of time spent on the most unpleasant parts of your schedule, and increase the amounts of time spent on the most pleasant ones.

Which is not to say that your choice can be to bypass all the hard personal stuff, lob off on your associates the difficult client stuff or be excused from getting enmeshed in the partnership stuff.  But you can make your preferences known as a first step to finding a balance between what we have to do and what we want to do.

You would think that lawyers with their reputations for combativeness would be the first to say what they want and how they want it.  But the reality is quite different.  Most lawyers loath confrontation, particularly in what they consider to be non-critical areas like scheduling, and thereby deprive the players in their lives of important feedback on what would make their lives better, and therefore their work better. Or, they take it for so long, victims of incompetence that they are, and then lash out in an angry fit.

You don't have to be the 300 pound gorilla to start putting some order into your life.  You simply have to think about possible alternatives, articulate those to the people involved and then take steps to move towards those alternatives that seem workable.

Of course it's helpful to know the other players' proclivities--another exercise in awareness.  Does your secretary sometimes switch numbers in a date or phone number?  Does your associate take long lunches and work later at night? Do your clients prefer face-to-face instead of telephone/email advice? Is the managing partner fond of early morning pow-wows?

Once you have others' proclivities clear, start informing everyone of your preferences.  Have you given your assistant clear guidelines on when you want phone calls, who is to be included, who should proofread the meeting invites, and when to give reminders?  Have you explained to your associates that due dates are sacrosanct and while everything can be discussed, something responsive has to be on your desk at a certain time of the day in any event? Do you explore with clients several possible times and dates for meetings or conference calls or do you feel you have to jump on the first suggestion? Have you told the committee chair or managing partner the best dates and times for you to meet? Here's one:  have you worked out with your significant other if there is a day during the week that s/he would prefer that you make it home earlier than midnight?

Then you have to abide by the guidelines and boundaries you yourself have asked for--no approving a late meeting after a day of meetings, no excusing a 3 am phone call, no extension for the associate's due date, even if you may have to replace him/her.  And if you can't hit the reschedule button less than 24 hours after you've got that special home date set up for the week.

if you don't affirmatively provide guidelines and boundaries to the players in your life, your staff, colleagues, clients and family will push and push until they meet resistance.  It's like ballroom dancing--a good partner gives some resistance to the other person to lean against. And if you don't provide any, you could and probably should get mowed down.

The first part of this endeavor is all in the mind--building an accurate awareness.  The second part is in the muscle--keeping promises to yourself and others.  While communicating your way through it all.

The key here is to be living on purpose and not by default.  Yes, everyone has to make compromises and your life will not suddenly be a bed of roses, but any small improvements in how you feel your life is lived will make you more empowered and the people you deal with more engaged. 

Profitability in 2012--or Not?

One of the obligations of commentators at this time of year is to give an end-of-year roundup and a new year prognostication. So let's start with profitability, a subject dear to all our  hearts.

Citi Private Bank's Law Firm Group serves some 600 law firms and 58,000 lawyers in the United States and the United Kingdom, and surveys them quarterly about their financial situation. The most recent survey results-- for the third quarter of last year-- are skewed toward AmLaw 100 firms – “44 Am Law 1–50 firms, 36 Am Law 51–100 firms, 49 Second Hundred firms, and 54 additional firms"-- but nonetheless give a pretty interesting picture about the law business and its profitability in 2011 with indications for what 2012 holds.

Citi's conclusions:  As a result of work put on hold during the third quarter (and therefore unbillable) and intimations of a continuing decline in demand in the fourth quarter, Citi projects that PPEP for 2011 will fall to low-to mid-single-digit growth--less than 2010's 7.5%, and that 2012 will get off to a rocky start.

For the details: Citi found that law firm collections for the quarter were strong, but expenses continued to rise at a faster rate than earnings. Perhaps more disturbing is the report that corporate demand for legal services continued to decline for the third consecutive quarter, with WIP also declining. 

"Cumulative growth in demand for the first nine months was 1.5 percent, down from 1.8 percent during the first six months. This indicates that growth in demand slowed to only 0.9 percent for the third quarter...The slowdown has hit Am Law 50 firms... particularly hard."

Because there is simply less demand, income partners and of counsel are working fewer hours, while equity partners and associates continue to carry the ball. At the same time, leverage is declining generally, particularly the ratio of associates, who carry a higher profit margin, so the pyramid system only survives in theory. 

Citi went on to note that rate increases remained steady at 3.7% and realizations were strong.  But it also cautioned that:

"Expenses, which had already risen by 4.7 percent during the first half of 2011, continued to gain momentum during the third quarter, as they have now increased 5 percent across the industry for the first nine months of this year. This was driven by a continued increase in operating expenses—and in compensation expenses, since we saw a slight uptick in head count during the third quarter, likely due to the entry of first-year associates."

Obviously, with rates increasing by 3.7% and expenses increasing by 5%, most firms are slowly losing ground on both the profitability and productivity fronts.

"Looking at the 100 most profitable firms from 2001–2010 in our database, we saw a discernable decline in the percentage of associates represented in the leverage composition and a significant growth in the income partner, counsel, and of counsel categories. The result is a much more expensive leverage model, which would be fine if these more expensive lawyers were as productive as equity partners and associates, but they are not. In looking at average annual lawyer productivity from 2001 to 2010, income partners and counsel worked about 150 hours less than equity partners and associates."

"This modest increase in associate head count, combined with the slowdown in demand in the third quarter, translated into a decline in productivity gains—from 1.6 percent growth for the first six months of 2011 to 0.9 percent growth for the first nine months."

Collections were so strong in the third quarter that revenue growth outpaced expense growth, the reverse of the mid-year situation, so profit margin pressure was eased for the moment.  However,"the push for collections...along with the slowdown in demand, resulted in a significant slowing in inventory growth... " with WIP at " 3.6 percent for the first nine months (versus a cumulative growth rate of 6.3 percent for the first six months). The last time we saw the third-quarter inventory growth rate slowing from the first-half rate was in 2008." And the obvious implication for 2012 first quarter revenues is not pretty.

The result of these trends, Citi notes, is flat to negative equity partner growth in virtually all market segments and a preference for bringing in laterals over making internal promotions. (More on the state of lateral hiring in a future entry.) 

Hildebrandt's quarterly "Peer Monitor" index for the third quarter of 2011 dropped 6 points to 56 (anything below 65 is deemed a negative operating environment)– breaking a string of three consecutive upward quarters. 

"While rates strengthened slightly, demand growth weakened. Most significantly, the rise in expenses continues to accelerate. In the third quarter, increases in expenses ran well ahead of slowing revenue growth, sharply curtailing profitability.  Growth in demand for legal services was positive, but slowed to 0.8 percent, its weakest reading so far this year. Rates firmed slightly, up 3.5 percent compared with the same period a year ago. But the worrisome trend in expenses that PMI has been tracking continues to worsen. Both headcount and overhead expenses rose to their highest levels of the year. In short, the market continues to grow – albeit at a lethargic pace. But expenses will need to be brought under control if demand does not pick up. Achieving topline growth and balanced expense controls will be the key themes for firms for the balance of 2011 and into 2012."

"Following widespread cost reductions in 2009 and 2010 (reflecting primarily significant reductions in headcount), expense growth turned positive early this year. As 2011 has worn on, costs have steadily accelerated to the point where they are now easily outpacing both demand and rate growth, thus impacting profitability. Until recently, firms had generally been doing a good job of balancing their headcount against slowly growing demand. But firms have stepped up their hiring in recent months in a modest return to traditional seasonal hiring patterns. While firms have been hiring, however, demand has slowed as the year has progressed, widening the gap between law firm capacity and available work. Whether this trend continues will depend on the performance of the broader economy and whether we see continued recovery in litigation and transactional work."

While in this survey, stated rates were up a comparable 3.5%, "realized rates have resumed the long‐term downward trend that has been in place since 2008, and reached another all‐time low in the third quarter. A similar story is unfolding in collections. Following a slight rise earlier this year, net collected realizations fell to a new all‐time low of 85.4 percent."

Some of these themes were evident in the results of The American Lawyer's ninth annual survey of law firm leaders, as summarized below:

"Only 20% of respondents expect to see revenue growth in their corporate practices next year, compared to more than one-third of respondents last year. And clients are taking longer to pay their bills, according to 43% of the respondents. Billing rates are continuing to rise, with 93% of firms expecting to increase rates by 5% or less.

Cautiously optimistic, firms are holding steady on the size of their first-year associate classes, with 58% keeping their class size the same as in 2011. More than one-third of respondents expect to reduce their equity partnership ranks and 49% of firms have made efforts to align partner compensation with a willingness to cooperate in new initiatives such as project management.

Leaders are not as optimistic about profits per partner as they were last year. The majority (58%) of survey respondents expects PPP to grow 5% or less, which is higher than the 41% who responded last year. A healthy 26%, however, expect profits to increase by more than 5%, although this is down considerably from last year’s 38%."

For even more confirmation on the bleak 2012 growth outlook, here is Goldman Sachs' Chief Economist predicting that 2012 will see average global GDP growth of 3% and US GDP growth of 2.5% or less, with early 2012 growth in the US particularly sluggish--slower than the last half of 2011.

An AmLaw Daily Business Review article published in mid-2011 to which Muir contributed (and which you may have to upgrade your membership in order to read), discussed the big differences in profit margin among the various AmLaw 100 firms. A five-year analysis (spanning the boom year of 2007 as well as the bust of 2009) "shows a striking chasm between the highest- and lowest-margin performers,"  ranging from 63% for Wachtell and 62% for Quinn Emanuel to 19% and 22% for Edwards Angell and Squire Sanders, respectively.

What did that analysis find distinguished high profit margins from low?

  • Under-leveraging, of both associates and non-equity partners--those firms with higher than average profit margins in any given year (including the booms) had lower than average associate leverage, with an inverse correlation in leverage the higher the profitability went. Similarly, lower numbers of non-equity partners translated into higher profit margins, with a high of 46% compared to a low of 27%.
  • Low rates of lateral hires--those with the most restraint in lateral hiring were in the top quartile of profit margins (with fewer than 4% lateral hires), while those in the bottom quartile laterally hired an average of 18% of their equity partners, with the three firms with the largest percentage of lateral partners (K&L Gates, SNR Denton and Duane Morris)reporting profit margins of only 26-27%. 
  • A global presence while limiting non-strategic offices--those firms with large numbers of offices tended to have lower margins (34%) than those with only a few (46%), unless those offices were mostly outside of the US, in which case margins went up (to 41%).

So in terms of profitability, we have a bleak growth prognosis ahead while the old saws about how to improve profitability are proving wrong. 

Last year at this time, our entry on Where Will Profits Come From in 2011? concluded by saying what remains true today:

"The writing on the wall is pretty clear  Profits are unlikely to come from general demand in the market.  And there is only so much of your expenses and partners that  you can cut and still survive as a thriving firm."

If your firm is one of those that are trying to sail through these tough times using outdated business development and people management approaches, the waters ahead look pretty treacherous. Now is the time to embrace that scary word--innovation--and begin understanding how to achieve a new law practice that fits the new economy.

Freud and Emotions

In honor of the endings and beginnings at this time of the year and the personal and professional resolutions that each of us aspire to for the future, it is fascinating to look to the life of the founder of modern psychology, Sigmund Freud. A recent entry in "The People's Therapist," a blog by a former S&C associate, Will Meyerhofer, who is now a therapist to lawyers, recounts some interesting information on Freud's relationship to strong emotions, which is summarized below.

Oliver Sacks notes in his book "Musicophilia: Tales of Music and the Brain" that Freud was known to not like music, quoting his nephew, Harry, who claimed Freud "despised" music.

Freud himself wrote about his reaction to music in the introduction to "The Moses of Michelangelo":

"I am no connoisseur in art...nevertheless, works of art do exercise a powerful effect on me, especially those of literature and sculpture, less often of painting...[I] spend a long time before them trying to apprehend them in my own way, i.e. to explain to myself what their effect is due to. Wherever I cannot do this, as for instance with music, I am almost incapable of obtaining any pleasure. Some rationalistic, or perhaps analytic, turn of mind in me rebels against being moved by a thing without knowing why I am thus affected and what it is that affects me."

His friend, Theodor Reik, wrote that Freud feared giving himself over to the mysterious effects of music on his emotions. Reik felt that Freud's resistance to music amounted to:

"[a] turning-away...[an] act of will in the interest of self-defense...[and the] more energetic and violent, the more the emotional effects of music appeared undesirable to him. He became more and more convinced that he had to keep his reason unclouded and his emotions in abeyance."

Let's see.  Super-analytic type who is uncomfortable with strong emotions determines to not let himself "give in" to those emotions, but to remain as fiercely rational as possible. Sound like anyone you know?

While it is reassuring to know that even the grand man of psychology struggled with understanding emotions that overwhelmed him, his strategy of dealing with them is less than heartening.  It is no wonder that when Leonard Woolf, along with his wife Virginia, visited Freud in London late in his life, Woolf described Freud as "a half-extinct volcano... sombre, suppressed, reserved."

Only a few months later, at the age of 83, Freud arranged for a morphine overdose to end his life.

Sometimes the hardest thing to do is the challenge that yawns most scarily right in front of us, the one we least understand and most want to avoid.

Meyerhofer points out that "the word 'freude' in German means 'joy.' The word 'dream' comes from the Middle English word 'dreme,' which means 'joy' and 'music.'"  He suggests that Freud may have retreated into joyful musical dreams at night, even if he wasn't able to embrace them during the day. 

Perhaps there is a hint in this etymology as to why Freud was so driven by his fascination with deconstructing dreams, dreams which like music reflect abstractions of emotions that he personally couldn't fully understand or give himself up to. If only analysis and rationality could provide all the answers.

Another rift on the etymology is that Freud possibly never truly lived up to his name because he wasn't open to the full panoply of emotion, wasn't able to experience the roller coaster that  both plummets us into the depths but also raises us up to the highest heights--a mysterious and sometimes painful ride that nonetheless informs every aspect of our feelings and ultimately our intelligence.

Happy Holidays and A Prosperous and Peaceful New Year!

No, Virginia, there is no Santa Claus, but thankfully there is gratitude and hope, which I wish for all my subscribers during this holiday season and throughout the new year!  With these twin gifts come prosperity and peace--let us work together to make sure you are beneficiaries in the coming year of both. 

The Law People Management Gang

It's That Time of Year Again: Bonuses

Last week The Wall Street Journal reported that Cravath, Swaine & Moore, the industry pacemaker in this matter, announced that it will keep associate year-end bonuses for 2011 the same as last year--$7,500 for a first year associate up to $37,500 for  the most senior associates.  Not only are these bonuses far below 2007, when first years received a total of $45,000 and seventh-years a total of $110,000 (in each case including a second year-end bonus), but the fact that that they are not being raised at all this year from low bonuses last year also indicates the continuing weakness of the legal industry, according to the article.

[It might be pointed out that early this year Sullivan & Cromwell offered associates a second bonus for 2010 ranging from $2,500 (first-years) to $20,000 (seventh-years). Cravath and others followed suit and even raised S&C, which could possibly happen again.]

Commentators have busily sunk into a slug-out over whether these bonus rates are fair to associates when at least some firms, including Cravath, are reporting increased partner profits. According to The American Lawyer, in 2010 the overall average equity partner profits for the Am Law 100 of almost $1.4 million returned to pre-recession levels, while Cravath’s PPP has risen from $2.5 million in 2008 (sharply lower than in 2007) to $2.7 million in 2009 and $3.17 million in 2010.  It's enough to prompt at least one commentator to militate for an Occupy Big Law movement.

There is a lot that is distinctive about law firm bonuses--they are totally transparent within firms and outside, matched to the dollar by competing firms, and presume that law students and young lawyers are not able to compare firms on any basis other than raw compensation. In most cases, they are dished out in automatic response to whatever the last competitor has done.  In an era of severe client cost pressure and increasing competition from alternative legal providers, such a reflexive approach to compensation seems, well, unbusinesslike.

And there is also good reason to believe that it's a waste of money--according to an analysis by the American Lawyer of their survey of midlevel associates.

"An examination of the results of our 2011 Midlevel Associates Survey shows that there is no statistically significant relationship between associates' ranking of their compensation and benefits and their expectation that they will still be at their firm in two years... Our finding echoed a 2007 study that Indiana University Law professor William Henderson did based on our 2004 Midlevel Associates Survey—he also found that the relationship between compensation ratings and the expectation that associates would stay two more years at their firm was close to zero."

The correlation between the second bonuses given in the spring of 2010 and how associates rated their compensation was also tenuous, with the associates at S&C--the firm that started that round of bonuses--giving lower marks to their firm for satisfaction with their compensation than two firms that didn’t award spring bonuses.

So maybe we shouldn't be so presumptuous after all?  The highest paying, largest law firms still lose 18%+ of their associates every year, according to NALP.

The challenge is to understand the positives and negatives of differing approaches to compensation--lock-step, merit, semi-merit--in this market environment.  How do these approaches affect recruitment, attrition, productivity, teamwork and work environment?  It may be easier to just blanket repeat what Cravath has done, but there are much greater rewards for taking a more thoughtful and current tack.

 

Practical Tips to Beating Back the Depression Demon

Lawyers suffer from a high rate of depression--the highest of all professions--and the peak time for depression to hit is around the holidays.  Add to that the stress that many are feeling now over the economy and whether they will have a job come the first of the year, and you have a recipe for poor performance, strained relationships and general year-end blues. 

Positive psychology is the study of what drives optimal functioning.  It focuses on the positive emotions, individual traits and institutions that improve productivity and satisfaction and that also have been determined to lengthen longevity by 20%.  But lawyers are world-class pessimists, a trait so clearly aligned with their profession that law students who score the highest on pessimism also have the highest grades.  So practicing positive emotions seems sentimental and unrealistic to many lawyers.

The proof, however, is in the pudding.  Don't let moping through the holidays be your "realistic" approach.  Here's a list of things that positive psychology research has found can help you beat back the depression demon. Even though it may sound too much like kittens and flowers and light, you might just find that one or more things on this list can help make your holidays happy. 

  1. Keep a gratitude diary.  Spending even 5 minutes a day writing down what you are grateful for has a demonstrated positive impact on satisfaction, physical health and energy levels. For a bigger kick, send a note to someone you are grateful to.
  2. Start the day with a smile.  If you can maintain a positive attitude through the first hour, you have a much better chance of keeping it all day.  Research shows that even if you don't feel positive at first, the positive feelings will follow that physical smile.  Laughter is good for you too, And a positive mood is contagious.
  3. Perform an act of kindness.  One daily act of kindness, regardless of how small--like complimenting a coworker, bringing someone coffee, or large--volunteering at a food bank, mowing an elderly neighbor's lawn, builds strong connections and adds a sense of purpose and meaning to life.
  4. Spend time with friends and family.  Plan regular time together.  And even if a late brief or closing keeps you physically away, phone calls and emails can keep you connected in the meantime. 
  5. Replay those special moments.  When you're stuck in a conference room late at night, give yourself a break to replay those special memories you have--visualizing the moment and exactly how it felt.  It's a mini-vacation in the mind.
  6. Manage your physical health--eat well, sleep well, exercise and stretch daily. The positive effects of good physical health--on your immune system, heart and dopamine levels--is the foundation for high functioning and lasting satisfaction.
  7. Just minutes of meditation daily for as few as 6 weeks, using music or chanting to further the relaxation, has proved powerful in developing the ability to cope with stress and lighten mood.
  8. Visualize!  Imagine vividly your goals and aspirations. Write down the specific details of your ideal life and incorporate them wherever you can into the life you have now.
  9. Upgrade your self-talk.  Stop trash-talking to yourself--remember to congratulate yourself for your accomplishments and remind yourself of your strengths.
  10. Release yourself from responsibility for what you can't control or change. Keep a discerning eye on what those things are and don't beat yourself up over what you can't do.
  11. Forgive. Staying angry is like trying to kill someone else by drinking poison.  It only hurts you in the end.  Unburden yourself from the weight of resentment and anger over what others have or haven't done. Forgive their weaknesses, their bad intentions, their failure to be who you thought or want them to be.  Then embrace your lightened life.

 Happy holidays!

Goleman on Emotional Intelligence; Could It Be Your Blood Pressure?

Goleman Clarifies

In the emotional intelligence ring, there have long been two theories—those who think that EI counts for 80% of success and those who don’t.  Daniel Goleman’s 1995 blockbuster book Emotional Intelligence: Why It Can Matter More Than IQ is the source of much of this scrapping—he asserted in the original edition that IQ accounts for 10-20% of business success, leaving a big 80% gap attributable to other factors. Many think that EI fills that entire space—some contending that Goleman himself essentially said that at the time. 

As we have reported, over the years there have been a number of rounds on this question, with Goleman saying that he has been misinterpreted and others accusing him of retreating from his own findings. This past week, Goleman finally came out firmly with the declaration that “people seem to jump to the conclusion that EQ alone makes up that 80% gap—and it does not… As the person who put the concept on the map, I can tell you that they are dead wrong.”

While chastising consultants for over-selling emotional intelligence, Goleman also restates the importance of EI in the business world:

“It typically takes an IQ about 115 or above to be able to handle the cognitive complexity facing an accountant, a physician or a top executive. But here’s the paradox: once you’re in a high-IQ position, intellect loses its power to determine who will emerge as a productive employee or an effective leader. For that, how you handle yourself and your relationships — in other words, the emotional intelligence skill set — matters more than your IQ. In a high-IQ job pool, soft skills like discipline, drive and empathy mark those who emerge as outstanding.

Companies know this. Corporate surveys find that more than two-thirds of major businesses apply some aspect of emotional intelligence in their recruiting, in promotions, and particularly in leadership development.”

Emotional intelligence is critical to productivity, effectiveness, leadership. And businesses are smart enough to recognize that in their recruiting, professional development and leadership development. Except of course in the business of law.

Is It Your Blood Pressure?

In another corner of the EI world comes results announced last week of an interesting study : "the emotion-recognizing ability [is] reduced in people with high blood pressure, even after taking into account medication use and other factors."  Leading to "emotional dampening," hypertension evidently "reduces the ability to recognize anger, fear, sadness, and other emotions in people's faces."

According to the authors of the study, published in the journal Psychosomatic Medicine:

"In complex social situations like work settings, people rely on facial expressions and verbal emotional cues to interact with others. If you have emotional dampening, you may distrust others because you cannot read emotional meaning in their face or their verbal communications.You may even take more risks because you cannot fully appraise threats in the environment.”  

The authors believe emotional dampening also may be involved in disorders of emotion regulation, such as bipolar disorders and depression.  

This theory of emotional dampening also evidently applies to positive emotions.“Dampening of positive emotions may rob one of the restorative benefits of close personal relations, vacations and hobbies."

While there is no hard data on this that I am aware of, I would put bets on our lawyer population having outsized blood pressure, consistent with the pressure, stress and demands of the job.  And then there are those well-documented low scores in emotional intelligence that lawyers historically get.

Lack of trust, risky behavior, depression, heart disease, lack of close personal relations and little or no restorative time?

So that's it!



 

Invalidating Work/Life Balance?

This past August a court dismissed an EEOC discrimination suit against Bloomberg contending that the company had systematically discriminated against pregnant women or those who recently returned to work from maternity leave. The judge, New York district court judge Loretta Preska, saw the EEOC's essential charge to be that  Bloomberg, as a company policy, did not provide work/life balance for its employees, which policy disproportionately discriminated against women employees.

The judge found insufficient evidence of such discrimination, but went further: the law, she opined, "does not mandate work/life balance"--"balance" is not a corporate obligation. A company like Bloomberg, she adds, explicitly states that it expects "all-out dedication" from its employees in return for a hefty paycheck. Indeed, the company Code of Standards states that Bloomberg “is your livelihood and your first obligation.” And she noted that both men and women have complained about work-life balance there. Thus, "making a decision that preferences family over work comes with consequences. But those consequences occur for anyone who takes significant time away from Bloomberg, not just for pregnant women and mothers.”

"The law does not require companies to ignore or stop valuing ultimate dedication, however unhealthy that might be for family life,” she wrote. “Whether an individual in any family wishes to make that commitment is an intensely personal decision that must account for the tradeoffs involved, and it is not the role of the courts to dictate a healthy balance for all.”

As may have been expected, a firestorm of controversy erupted over this decision, evidenced by the comments not only on the ABA Journal site above but also on the Careerist, NY Times, Wall Street Journal and Ms. sites.

And it didn't help that Judge Preska quoted Jack Welch, the long-retired chairman of GE, on his take on work/life balance:  “There’s no such thing as work-life balance.” This is the same Jack Welch who in a book titled Winning, co-written with his third wife, gives this advice:

There’s lip service about work-life balance, and then there’s reality….  You need to understand that reality:  your boss’s top priority is competitiveness. Of course he wants you to be happy, but only inasmuch as it helps the company win.

An article in the Wall Street Journal today, noting that the number of women in corporate leadership positions in New York State has not appreciably increased over the last few years, brought this Bloomberg decision to mind. A report conducted by Columbia Business School and the Women's Executive Circle of New York, the third in a series of biannual surveys tracking the number of women executives and board members at the state's largest 100 publicly traded companies, found that women held 15.9% of high-level leadership positions in 2010, up from 14.7% in 2006--a little more than a 1% increase.

Back in 2006, our entry "Five New Studies on Diversity in Law" pointed out the disadvantages that women, particularly those trying to have families, experience in legal practice, effectively limiting the number of women partners to approximately 17% at that time, a number that is not much changed today.

Also in 2006, an article published in The New York Times entitled "Why Do So Few Women Reach the Top of Big Law Firms?" similarly elicited a barrage of comments.  But Karen M .Lockwood, a senior female partner in Howrey, a Washington D.C. firm, who was the president of the D.C. Women's Bar Association, was quoted as making a distinction, saying that "Law firms are way beyond discrimination—this is about advancement and retention. Problems with advancement and retention are grounded in biases, not discrimination." 

Ms. Lockwood correctly identified a distinction. Discrimination is overt, explicit and legally actionable--not what Bloomberg is guilty of, while bias is implicit and often unconscious, covertly undermining the actions and opinions of some of the most overtly committed supporters of women. 

Most experts agree that the Bloomberg decision is correct on the law.  Everyone, women included, is entitled to trade leisure or family time for a bigger paycheck.  And this of course is particularly likely to happen in industries such as law where, still, time is considered the currency of value: the more time you spend on work, the more valuable you are.  Perhaps, in the end, that is the key to the "glass ceiling" problem that persists:  women are simply less willing to make that tradeoff. 

But there is another issue that the Bloomberg decision raises.  Few lawyers and law firms today would admit to outright discrimination against women, and even fewer could be convicted of it.  But unconscious bias is another matter.  Has the Bloomberg decision fueled unconscious bias against women? 

Ranier Kuchl, the concertmaster of the Vienna Philharmonic, expressed a commonly held opinion when he said that he could instantly tell the difference with his eyes closed between the sounds produced by male and female musicians, particularly those playing "male" instruments, such as tubas, trombones and French horns, which, the theory went, required the greater lung power of a man.

Nonetheless, over the past thirty years the use of screens and rules to assure anonymity have become standard in music auditioning. During the same time, the number of women in the top US orchestras has increased fivefold. The first time new audition rules were in place at the Metropolitan Opera in New York, all of the four new positions were awarded to women, more than doubling the number of women at that time in the entire orchestra.

What the classical music world thought was a pure experience—listening to someone play—was demonstrated in fact to be biased by conscious and unconscious gender cues. Another lawyer, Jennifer L. Bluestein, head of professional development for Baker & McKenzie, was quoted in the above New York Times article as saying that "Some of this is left over from the sexual harassment cases from the 90's, but I think that it's more because of the fact that we don't look like men." The evidence from the classical music industry seems to support Ms. Bluestein's comment--those visual cues can obviously undermine a purportedly unbiased person's perceptions of actual performance.

Similarly, in identical speeches delivered by equally talented speakers, the male is invariably judged to be the more persuasive speaker, even by women in the audience.  And men who excuse themselves from work to go to a soccer game or relieve a babysitter are consistently viewed positively for being involved with their families, while women who do the same thing with the same regularity are viewed negatively, as being not fully committed to their work.  And so it goes.

What is evident is how important gender is in shaping our unconscious biases. Company policies that reinforce those traditional biases are likely to breed--even stronger biases.  And as a result even fewer women will be afforded the opportunity to turn over their lives to their work.  If women are the ones who are opting out of an industry's or company's workforce because of work/life balance concerns, it will be all women, whether they will also eventually make the same choice or not, who will suffer from the bias that those experiences reinforce. 

Today the number of lawyers, both men and women, and particularly those stalwarts of Gen X and Gen Y, who are adamant about the importance of work/life balance are greater than ever.  Which makes the likelihood of peopling with the best talent any business that devalues balance much more challenging. 

Plus, there are substantive advantages realized by a business that affords employees a healthy lifestyle--as a recent New York Times article on “decision fatigue” reports, those who’ve made too many judgment calls in a day “take illogical shortcuts and tend to favor short-term gains and delayed costs. … [T]hey become inclined to take the safer, easier option even when that option hurts someone else.”

Or as psychologist Roy F. Baumeister puts it: “Even the wisest people won’t make good choices when they’re not rested…”

A recent article on the Bloomberg decision concluded: "Allowing people to have full lives, in short, isn’t a favor to women—it’s a better way to run a business."

Or as Jack Welch has also said: “If there was ever a case of ‘Do as I say, not as I did,’ this is it. No one, myself included, would ever call me an authority on work-life balance.”

That Old Crying Feeling

The following entry won the BlawgWorld Pick of the Week. BlawgWorld is a free weekly email newsletter that links to the best articles on the Web for lawyers and law firm administrators.

 

                                                     

House Speaker John Boehner teared up when introducing two newly elected Republican congressmen during a closed party meeting on September 15th, not the first time Boehner has choked up in public. A lengthy list of public cries just over the last few years include tears at a commencement speech, while thanking colleagues for their support during budget negotiations, during a talk about schools, discussing at various times his wife and his 11 brothers and sisters, celebrating election night, singing "America the Beautiful," talking about American security and American families who are suffering economically and simply upon taking the speaker's gavel, many of which sobs are commemorated on YouTube.

 

While Boehner seems to get away with it, The New York Times columnist Gail Collins contends women particularly must avoid tears in order to maintain their credibility:

One of the best-remembered moments in the Obama/Clinton campaign — Hillary Clinton cries in New Hampshire — is an excellent example of the difference between what men and women can get away with, tear-wise...With her back to the wall and the presidency on the line, Clinton approached the edge of a sniffle and we are still talking about it. Boehner is driven to great, noisy sobs when he contemplates the fact that as a youth, he mopped the floor at his father’s tavern...

[Nancy] Pelosi, of course, does not cry in public. We will stop here briefly to contemplate what would happen if she, or any female lawmaker, broke into loud, nose-running sobs while discussing Iraq troop funding or giving a TV interview.

Vivien Chen, of the Careerist, concludes that women can cry to diffuse a bully, but, otherwise, crying's probably not so cool.

According to the Harvard Business Review, Boehner can get away with crying "because of three key differences between John Boehner and the rest of us above-average professionals looking to progress in our careers: first, he's the boss, second he's not crying about workplace issues, and third, he's old (or older, depending on where you sit)."

The unwritten corporate rule is simple, according to HBR: "It is never okay to cry in your office, with your colleagues, or, god forbid, in front of your boss." So if you feel tears coming on, HBR advises that you either excuse yourself and "then get the hell out of your office...And if you can't keep it together to excuse yourself, simply exit the building quickly and worry about explaining later."

Does it surprise you, then, to learn that a study conducted by recruitment consultants Michael Page International found that mounting stress of all sorts leads one in three lawyers to cry?

Probably most lawyers would be loathe to admit to crying, so such a statistic looms rather large. If there are behind-the-door sobs, the question becomes whether tears are ever a good response during your working day, public or not.

Human beings are the only species that cries emotional tears, so there isn't any animal data available, but there's some interesting research about the differences in the crying habits of men and women.

Evidently women are biologically wired to shed tears more than men. Cells of female tear glands look different than men's and her tear ducts are smaller, so if a man and a woman both tear up, the woman's tears will spill onto her cheeks more quickly.  A hormone in tears called prolactin, a lactation catalyst, also aids in tear production. By the time women reach 18, they have 50% to 60% higher levels of prolactin in their bloodstream than men do.  Age is also a factor.  In an extensive study, researchers found that women under 45 are 10 times more likely to cry at work as men 45 and older.

A study of 37 countries determined that women in developed Western economies not only cry much more than men, but also much more than women in societies where women have fewer rights.

The male reticence to tear up seems to be related to testosterone levels.  As men age, and their testosterone levels decrease, they cry more. There are also powerful cultural inhibitions that make men less likely to cry, although those are relatively new, according to Tom Lutz, a University of California, Riverside professor. In the context of centuries and millennia, "male tears are the norm and males not crying is a recent historical aberration," he says, traceable to the late 19th century, when factory workers—mostly men—were discouraged from indulging in emotion lest it interfere with their productivity.

Which brings us again to lawyers in modern offices, wary of demonstrations of vulnerability, weakness or failing to spend time productively.  Yet evidently still shedding tears, even if behind closed doors.

What is one to do with those exasperating feelings of frustration and anger that would like to express themselves fluidly?

We have reason to believe that not only do men and women have different crying profiles but that they experience strong emotion differently--men have a stronger and longer-lasting physical response to emotion than women do, with higher heart rates and blood pressure, and it is more debilitating to their cognitive functioning--they aren't able to think as clearly and they remember fewer details of what happened during the emotional experience than women do. 

So what looks like a ban against emotional displays in the office for fear of reducing productivity more likely reflects the male experience of debilitation.  It is the male experience that may in fact give some justification to keeping one's emotional experience at the office more serene--let's not impair our functioning with this kind of stuff.  That attitude becomes the cultural norm, and women are often branded as the ones who breach it.  But women, unlike men, can move through their emotional experience more quickly and with less impairment, making their aversion to an office episode less likely, at least for reasons of reduced productivity. 

The alternative is to suppress emotions, and the adverse impact of suppression is much more dramatic for both sexes. Cognitive functioning declines significantly when the required energy is devoted to choking off emotional expression, leaving little energy for rational thought. And suppression means the cause of the emotion is not being dealt with--the culprit is not being confronted--and therefore there is no relief in sight.  So suppression both traumatizes more significantly and lengthens the period of damage.

What can we as practitioners conclude from all of this?  If you are a Boehner and feel those tears start to flow, go ahead and find a place to let them flow.  Preferably one that is not immediately in sight of your clients, colleagues or staff.  Wring out all the emotion--anger and hurt-- from those tears and then, when the storm has passed, sit down and analyze what brought on those emotions.  Are you frustrated with your situation?  Angry at someone's words?  Worried about the impression you made?

Once you have a handle on what feelings prompted the tears, go directly to the source and articulate those feelings.  "When the client told me how dissatisfied she was with my brief, I was devastated since I  had worked so hard on it." 

Then come up with a plan to get you back on the road forward.  "I would like to have a conference call where we go over each complaint so I can produce a second draft that suits us both."

And if you find your tears flowing because you're so proud of your team, just let them go wherever you are.

Practical Practice Management Skills: The Delegating Dilemma

One of the more challenging skills lawyers need to master is the ability to delegate--to younger partners, associates, and non-lawyer staff, and in this marketplace, to third party providers, like document reviewers and e-discovery firms.  And even to clients. 

But there is a lot of internal resistance in many lawyers to mastering that skill.  Perfectionism, wanting to stay in control and insecurity can sabotage efforts to delegate even when delegation is clearly the best route.  What if the delegee messes up and the delegator is left being held responsible?  What if the delegee performs the delegation in an entirely different way than the delegator would--how will s/he be able to evaluate the result? What if the delegee runs with the matter and excludes the delegator when s/he should be involved in making the critical decisions?  Or what if the delegee actually does a better job than the delegator might have done--will the delegator get at least some of the credit for that success or will s/he be bypassed altogether next time a similar assignment arises?.

With enough of these kinds of worries, lawyers can find themselves with overwhelming work and immense client bills because they are trying to "do it all."

While understandable, many of these concerns can be alleviated by simply delegating well.  The real problem often lies in the delegator's uncertainty about which part of a task is being reserved for his/her decision and which part is being delegated.

A good first step is to set up a four-part decision matrix.  This matrix identifies which issues you as the delegator retain ultimate control of and which ones others can make. The first two boxes contain the decisions you must make.  The second two boxes contain decisions that can be delegated to others.

In the first box are decisions that you have to make, and that no one else can, whether you are a managing partner or a junior associate.  For senior managers, these decisions bear on issues such as strategic planning and firm leadership.  For example, should the firm expand into another geographical or practice area market?  For the junior associate, the decision may be whether or not an assignment has been completed to the associate's satisfaction or which paralegal should provide assistance. 

In order to make the decision within this box, the delegator can consult with anyone who they think might have relevant information--the MP might ask the COO to confirm the start-up costs of a new office and/or the head of recruitment to ascertain the availability and cost of hiring expertise, but the delegator must make clear that s/he is seeking information only.  S/he explicitly reserves the right to make the final decision.  Similarly with the junior associate, who might go to other associates, staff or third parties to get the information s/he needs to feel confidant about the integrity of his/her work or the choice of a paralegal, making it clear that s/he seeks information only.

The second box is also for decisions that the delegator must ultimately make him/herself but in this box are decisions that come to the delegator as recommendations.  These recommendations are the products of an explicit or customary process that carries an assumption of expertise from the recommender, and are therefore usually approved.  For example, the executive committee may put compensation increases in this box.  There is an established method for those increases to be recommended--a compensation committee compares evaluations or an individual reviews annual performance--and while the delegator may ask questions or clarify reasoning, those recommendations are usually accepted.  For the junior associate, the recommendation may come from his/her administrative aid, recommending that a certain format be followed for documents or that a specific time-keeping procedure be used.  Or a third party document reviewer may recommend a certain procedure to follow for the best outcome in the document review.  These are recommendations the associate will likely accept unless s/he has a strong over-riding reason not to follow them.

In the third box are those decisions that are made by the delegee, but which the delegator is apprised of.  Guidelines are usually set up to give the delegee some limited discretion.  The professional development director, for example, may be empowered to determine which and how many trainings, conferences or other events lawyers and staff may attend at the firm's expense within a specified budget.  While the PD director reports to his/her supervisor quarterly and the firm management annually on those decisions and costs, his/her decisions are usually considered final by management until the guidelines change.  Similarly, the junior associate empowers a paralegal  to do specific authorized filings, only notifying the associate that they have been made. 

In the fourth box are those decisions that are made by delegees and that require no reporting to the delegator.  These are decisions with usually well-defined guidelines and little room for discretion.  The executive committee's HR director is empowered to enroll new employees in one of the approved benefits packages (determined based on recommendations and decisions made according to the second box) and s/he has no obligation to inform the committee of those enrollments.  The associate may have decisions relating to client meals, for example, in this box.  His/her AA is empowered to decide which of several approved catering companies to use and which menu of several to provide, with no expected review or revision of those decisions. 

Problems arise when the managing partner insists on reviewing and individually approving each of the benefits programs that new employees are enrolled in or a young associate second-guesses an experienced AA's choice of caterer for the client lunch.  Yes, there might be some incremental improvement because of the delegator's review but it's not worth the investment--any positive is offset by the terrible impact on general efficiency and morale.  If all decisions are subject to review and revision, progress halts and no one feels empowered or trusted to be responsible for the matters at hand.

There are caveats, of course.  Confidence in recommenders may require some experience to build, and guidelines are sometimes revealed to have unintended consequences.  But these and other obstacles are temporary ones that often can't be overcome until the rubber hits the road.  Refusing to delegate does not move anything forward.

On the other side of poor delegation are matters that should not be delegated but are: executive boards who tell the COO to determine whether associates will get bonuses, or associates who let the client tell them which conclusion to reach in their research.  The delegator may be looking to avoid responsibility for the decision or to keep from having to make a difficult one or may simply not feel qualified to make the decision.  Determining who should make the ultimate decision is critical here.

Once it is clear who the decision-maker is on each issue at hand and that is made clear to all parties involved, delegation becomes a simpler task.

What does your decision matrix look like?  Do others in the firm agree on which issues are in each box?  Executive coaching can make giant strides towards easing decision bottlenecks and improving morale.  Call us for a proposal.