Law People : Law Practice Management, Organizational and Personal Dynamics; Talent Management : Ronda Muir of Law People Management, Inc.

The rate of depression among lawyers is widely recognized as a multiple--in some studies a double-digit multiple--of the rate of depression in the general population and also in other professions.  This rate is high by the second semester of law school and only escalates over time.

There has been speculation as to whether depression in lawyers is a condition that is coincident with their predominant attribute of pessimism or is itself a separate attribute that might be a career enhancer in its own right.  Swiss watch makers have for generations piped downbeat music into their work rooms to produce a higher rate of accuracy in work that is technical and painstaking but also repetitive. Are lawyers naturally better suited to do the personal services equivalent of master watchmaking because of their inclination towards depression?

A recent study seems to provide at least a partial answer.  In "Performance benefits of depression: Sequential decision making in a healthy sample and a clinically depressed sample," by Bettina von Helversen et al, published in the Journal of Abnormal Psychology, the following conclusions were reached:

"Previous research reported conflicting results concerning the influence of depression on cognitive task performance. Whereas some studies reported that depression enhances performance, other studies reported negative or null effects... [W]e studied the performance of individuals - in a complex sequential decision task - who are nondepressed, depressed, and recovering from a major depressive episode. We found that depressed individuals perform better than do nondepressed individuals. Formal modeling of participants' decision strategies suggest that acutely depressed participants have higher thresholds for accepting options and make better choices than either healthy participants or those recovering from depression."

So exactly how were these depressed people functioning better? 

"[D]epressed participants accepted options less readily, which led to longer search and better choices. These results suggest that depression, by fostering greater persistence, may improve performance in certain tasks."

In other words, depressed people persist by passing up okay alternatives for a longer time and therefore eventually find a better choice than non-depressed people do.  The implication is that the depressed feel less pressure to come up with a solution quickly.

There are some other, less dramatic advantages to management to having a depressed work force--depressed workers are more likely to agree to what would otherwise be perceived as an over-reaching schedule and other onerous work conditions. Depressed workers are less likely to demand higher compensation or promotions.  They are also less likely to insist on using their own approach to managing a matter or staff.  Most of these advantages stem from the fact that the depressed don't have the psychic energy to devote to these peripheral matters--they are intent on getting the difficult meat of their work done and need all that they can muster to do that alone.

Lest we sound like we are glorifying depression, also note the long-standing disadvantages to depression.  Again, quoting the above article: 

"Depression modifies eating and sleeping habits, changes psychomotor patterns, and impedes cognitive functioning (for a review see Levin, Heller, Mohanty, Herrington, & Miller, 2007). Moreover, depressed people find decision making challenging (Monroe, Skowronski, Macdonald, & Wood, 2005; Radford, Mann, & Kalucy, 1986; Saunders, Peterson, Sampson, & Reardon, 2000) and tend to ruminate about problems (Ewards & Weary, 1993). In addition to these challenges, depressed individuals perform poorly in memory (Jackson & Smith, 1984), reasoning (Sedek & von Hecker, 2004), and choice tasks (Conway & Giannapoulos, 1993; Gillis, 1993; Murphy, et al., 2001)."

That list gives us some insight into why, if depressed lawyers are making better decisions in at least certain circumstances and offer other advantages to management, we aren't embracing the depressed lawyer model in recruiting and advancement. In short, a depressed work force doesn't perform at its highest level.

But to quote further the authors of the study: "Despite these findings, recent work has attempted to detect whether depression offers benefits that offset its negative consequences and, thus, explain its evolution (Andrews &Thompson, 2009; Hagen, 2002; Keller & Nesse, 2006; Nesse, 2000; 2009). These investigations have found that negative affective states can promote analytical reasoning, which facilitates systematic and thorough information processing (e.g., Schwarz & Bless,1991). In this vein, Andrews and Thompson (2009) contend that depression may be an adaptation that enables complex problem solving, suggesting that depression may improve performance on tasks that demand rumination and persistence. This resonates with literature suggesting that negative affect promotes more systematic and thorough processing of information (e.g., Schwarz & Bless, 1991), and it also dovetails with investigations showing that depression inhibits goal disengagement, increases persistence (Andrews & Thompson, 2009), and leads to difficulties in decision making (Radford et al., 1986; Saunders et al., 2000)."

These depressed ruminations may also challenge managers trying to motivate their lawyers to work more quickly in a fixed fee environment.

All in all, isn't depression as a career advantage a bummer for the industry?

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Muir will be the Keynote Speaker at Hofstra Law School's Boot Camp on Tuesday, January 11, 2011.  Her presenation “Emotional Intelligence—Your Secret Weapon for a Successful Law Practice”  will cover what the term ”emotional intelligence” means, the history of its discovery and development as a leadership skill, how lawyers score in emotional intelligence, how it is related to other assessed professional skills, what makes emotional intelligence a secret weapon for successfully practicing law in the 21^st Century,  and how to improve your emotional intelligence.

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According to a recent article in the ABA Journal, "Law schools need to do more than teach the legal basics--they also have a moral obligation to produce healthy and satisfied lawyers."  Specifically, Michael Serota, a recent law grad, suggests in his opinion column in the New York Law Journal that law schools "help students identify their professional values and make individual career decisions that correspond to those values."

Serota cites the Peterson study finding unusually high rates in lawyers of depression and other signs of distress, such as heart disease, alcoholism and drug use (see also our entry The Depression Demon Coming Out of the Legal Closet), and four ABA studies conducted over the last 25 years confirming chronic professional dissatisfaction--one out of every four lawyers is dissatisfied with her job. The Peterson study found lawyers suffer from the highest rate of depression of all professionals after adjusting for socio-demographic factors and are 3.6 times more likely to suffer from a major depressive disorder than the rest of the employed population, as well as being more likely to develop heart disease, alcoholism and drug use.  Professor Susan Daicoff has noted approximately 20% of the entire profession suffers from clinically significant levels of substance abuse, depression, anxiety or some other form of psychopathology. Let us add to these studies various others that have identified very high rates of suicide, divorce and mental illness among lawyers.  According to Serota, researchers have also found that mental illness and distress are responsible for the majority of attorney malpractice and disciplinary proceedings.

These findings point to a massive amount of individual suffering across the country, as well as significant costs to society in the form of increased health and malpractice expenses and a plethora of poorly or under-served clients. This circumstance is one clearly worth addressing, and one that can in fact be remedied.

We are often asked if the culture or pressures of legal workplace environments cause these mental health problems.  We believe that pervasive personal traits in lawyers--such as high levels of pessimism, competitiveness, introversion and conflict-avoidance and low levels of resilience and sociability--as well as ignorance about how to manage their implications underlie many of these disheartening statistics. And we have good evidence that those traits are already in place when students enter law school. The law school environment of similar personal types simply intensifies those attributes and can exaggerate their negative tendencies. 

Further, most law students enter law school with a different vision of how they are going to practice law than law schools (and most of their law firm clients looking for talent) envision, resulting in the poor alignment of values that Serota notes.  Research done in the area of positive psychology has determined that promoting the use of personal strengths is a means to higher job productivity and satisfaction.  As is the alignment of personal values with that of the workplace.  Unfortunately, research by Sheldon and Kasser found that as early as their first semester of law school, students begin to shift from focusing on their internal value systems (that which gives them pleasure and meaning) toward an increased emphasis on external values (such as grades and competition), leading to decreased satisfaction and overall well-being. 

Using strengths and aligning values requires, of course, understanding one's strengths and values and how well they match with those of the profession and individual firm one hopes to join.

Unfortunately, the level of this kind of awareness among lawyers must be one of the lowest of all professions.  And even fewer lawyers, if aware, know how to affirmatively use that information for greater productivity and satisfaction.

Thus, it is not surprising that studies find, for example, that within six months of entering law school, students experience significant decreases in well-being and life satisfaction, and substantial increases in depression, negative affect and physical symptoms. 

The American Bar Association, the Association of American Law Schools and the Carnegie Foundation for the Advancement of Teaching have all devoted substantial time to making recommendations as to how law schools might address these concerns. We and other consultants to the industry offer our viewpoint and suggestions.  See among others our entry Growing Leaders at Harvard and Other Business Schools. 

Law schools have responded by doing little, if anything.  Staff members with little training in the underlying psychological issues continue to offer ad-hoc, after-hours "career counseling" that doesn't help students recognize or address the personal challenges of lawyering. "By ignoring the topic of professional satisfaction in their curricula, law schools create an institutional misconception that the personal challenges of lawyering are peripheral to the practice of law. But because the individual is part and parcel with the professional, personal problems will necessarily affect the professional environment," Serota asserts. 

Does the mandate to educate lawyers include educating them in how to ply their trade with satisfaction and in good health? Will law schools ever put in place programs that further those ends? Lots of different perspectives on this one--see the comments.   

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It was my great pleasure--something I don't often say about a conference-- to attend this invitation-only gathering last week, March 21-23, of both august and up-and-coming law industry professionals as they prognosticated the future of our practice and what that might in fact look like up close for a broad array of providers and clients. 

While I will digest and relay over the next few weeks a number of interesting findings and tantalizing predictions that were discussed, let me summarize a few currents that are of particular interest to me.

One, notable is the influx and rising success of non-lawyer services in this emerging marketplace, whether those services are provided by in-house specialists in law firms, wholly-owned subsidiaries of firms, or independent companies.

Two, changes making their way into law firms are both reducing incoming associate classes and also raising the ante for efficiently training and promoting those associates, with the result being that firms are experimenting with more discriminating approaches to hiring and more sophisticated methods of providing professional development.

Three, perhaps as a corollary of at least the first point above and probably the second point as well, law firms are becoming truly more diverse workplaces that respect and rely on the contributions of non-lawyer sociologists, MBAs, IT specialists, project managers, psychologists, accountants and other professionals to more efficiently analyze, structure and deliver services responsive to client needs.

Stay tuned for the  review of this conference's exciting topics.

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If you stay with it long enough, a practice that goes out of fashion will often come back around again.  Those of us of a certain age remember when the first year or more at a big law firm was spent "rotating" around departments to get a good feel for the full range of legal practice.  That quaint practice was drilled out of most firms with the arrival of big ticket associate salaries and the push for faster and higher realization of revenues on their time. 

Now we hear from across the pond that Linklaters is proposing countering  "damaging over-specialisation" by having junior associates spend time in different practice areas in their first few years, a practice that Allen & Overy is also considering and Slaughter and May has already adopted.

“There was an awareness that people are specialising too early and there’s a desire to see people get a more rounded experience in their early years,” a senior partner at Linklaters was quoted as saying. However, it was noted that the move "should not be seen as a reaction to the economic climate."

With due regard to that  Linklaters partner's opinion, whenever this "new" practice is discussed at the law firms we advise stateside, it is raised expressly in the context of the current economic climate--one of the reasons being to position associates to be able to move more quickly out of and into practice areas depending on the firm's needs.

Non-equity partnership tiers have been the fastest growing population segment of law firms during the past decade, but those partners are sometimes specialists in areas where firms can no longer reliably provide sufficient work.  And, like specialized associates, those non-equity partners are often difficult to re-deploy quickly to where the firm's work is.  Many firms are therefore considering limiting or eliminating entirely that tier, moving to an all-equity partnership like back in the old days. Addleshaw Goddard intends to put that reversion in place next year. And a similar noise is being made as DLA Piper reviews its entire firm structure, with unattributed partners saying that the firm could move toward a single tier of partners, eliminating both tiers of income partners in its current model.

The wheel goes round and round.

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The recent 5-4 Supreme Court ruling on the New Haven Fire Department vocational advancement exam in Ricci v. DeStefano once again stirs the waters on the question of how to choose the best from among a crowd. (See our entry "The Outliers of Law--Embracing Heresy".) The "best" in this case was determined to be simply the highest scorers, even if those scores seem to imply discrimination against a particular group. 

What's Sonia Got to Do With It?

A lot of press has been devoted to parsing whether Sonia Sotomayor's vote with the majority at the appeals court, which affirmed throwing out the test results, implies her personal position on affirmative action.   

A look at Sotomayor's own test scores gives an interesting gloss to the discussion.  She was, by her own admission, an "affirmative-action baby" who did not do well on her SATs  and LSATS, or at least not as well as her fellow students at Princeton and Yale.  Yet she went on to graduate from Princeton with highest academic honors and has reached the upper echelons of law practice.  As Walter Kirn said in a recent New York Times article about his own experience at Princeton, "the poorer and browner of my classmates — particularly the women — seemed to study twice as hard as I did, clocking endless hours in the library and forgoing weekend parties for late-night cram sessions. Maybe their SAT scores were lower than mine, but they ranked higher than I did on the effort scale. And on the bravery scale too." 

So was this a case of retrospective justice-making by Ms. Sotomayor? 

Regardless of what Sotomayor was doing in the public sector, the glaring lesson to be taken from her own story is that aptitude assessments are not the last word on potential for achievement.

The Texas Experiment

In 1997, Texas House Bill 588, better known as the "Top 10 Percent Law," was passed, guaranteeing high school graduates who ranked in the top 10% of their senior class, regardless of their SAT or ACT scores, admission to a state institution.  While hotly contested at the time as risking the influx of less able students, it is a law that school administrators and legislators agree "by any measure of public policy is a success."

Not only did the 10% plan in Texas get more minority students into top public universities with race-neutral criteria, it spawned similar programs in California and Florida and the consideration of many other states. (Due to its immense popularity, last month the Texas Legislature agreed to limit to 75% of its freshman slots the number from the program that their flagship school, the University of Texas at Austin, had to admit.)  According to the most recent issue of Inside Higher Ed, "every internal study that... the UT system conducted and every external study has shown that the 10 percent students, relative to others, have done better by any measure -- lower attrition rates, graduate in shorter time periods," etc.

As Malcolm Gladwell wrote in his 2001 New Yorker article "Examined Life": "Critics of the policy said that it would open the door to students from marginal schools whose SAT scores would normally have been too low for admission to the University of Texas—and that is exactly what happened. But so what? The 'top ten percenters,' as they are known, may have lower SAT scores, but they get excellent grades. In fact, their college GPAs are the equal of students who scored two hundred to three hundred points higher on the SAT [emphasis added]. In other words, the determination and hard work that propel someone to the top of his high-school class—even in cases where that high school is impoverished—are more important to succeeding in college (and, for that matter, in life) than whatever abstract quality the SAT purports to measure. The importance of the Texas experience cannot be overstated."

Predicting the Best Lawyers

A number of studies have looked for what might predict eventual success as a practicing lawyer. Evidently LSAT scores, and not undergraduate grade point averages, are the best indicators of academic performance in the first year of law school, and academic performance in the first year of law school appears to be the best predictor of whether the new graduate will pass his/her state bar exam on the first attempt. There is also a very strong correlation between the personality attribute of pessimism and law school grades, i.e., the higher the pessimism, the higher the grades.

But none of these factors--undergraduate grades, LSAT scores, law school grades--gives us the key to determining who is likely to be at the top of the lawyering heap. 

A New Kind of Test

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Lawyers are introverts, big time.  According to Myers Briggs Type Indicator (MBTI) results, almost 3/4th of lawyers, compared to only 1/4th of the general public, are introverts.  That means they go inward to charge their batteries-- preferring internal introspection to external interaction. 

On the Caliper Profile personality test, lawyers also rank astonishingly low in the sociability trait--which measures how comfortable a person is initiating and building close relationships. Low sociability scorers are less inclined to enjoy interacting with others, preferring to spend more time with information. 

Of course, we know that lawyers are thinkers--they think, analyze documents and deals, edit and write, all loner tasks.  In a recent study, lawyers ranked sixth overall on a list of the 200 best jobs for introverts, just behind the loner braniacs who work as computer software engineers and accountants. 

The question for management becomes how to integrate these loners not only into a coherent, committed organization but also into the 21st century vision of service delivery:  coherent, committed teams.  How do you overcome/compensate for the introverted nature of lawyers in day-to-day management, business development endeavors, client service?

Slowly.  Start by using the strengths of introverts--such as their tendency to (appear to) listen and to deliver well-thought-out opinions-- and proceed from there logically to the overwhelming consensus from research that collaboration improves productivity and satisfaction. 

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Growing future leaders at our best business schools increasingly involves teaching "softer" skills, and often using personal style assessments. One of the more rigorous and long-standing low-residence courses at Harvard Business School is the nine-week Owner President Management Course (OPM), which spans three years.  Roughly 120 business owners, only half of whom are usually from the US, are enrolled in this course.

Last year, one of the course professors, Dr. Linda Doyle, included The Birkman Method in her "Leadership and Organizational Effectiveness" classes for the OPM, a class that examines leadership styles through case studies.  The Birkman Method is a personal style assessment that identifies a number of traits, and also how those traits manifest in an organization and morph under stress.  Using the Birkman assessment, OPM participants are able to identify and analyze their own authority styles, and the strengths and problems that might develop from those styles.  Harvard has decided to continue the use of the Birkman in this course and is considering including it in other MBA courses.

Yale School of Management has also introduced personal style assessments into its curriculum.  All MBA candidates are now required to take an assessment to help identify leadership styles, strengths and potential problems.

Heidi Brooks, Director of the Leadership Development Program at YSOM and a lecturer in Organizational Behavior, is convinced that these assessments are avenues to self awareness and interactional intelligence that can only improve management effectiveness.  Since most major corporations hire and promote at least in part on the basis of similar types of assessments, having MBA candidates familiarize themselves with the testing process and the information it provides also gives them an early advantage. 

Besides Harvard and Yale, Dartmouth University's Tuck School of Business, University of Southern California's Marshall School of Business, Massachusetts Institute of Technology's Sloan School and Stanford's Graduate School of Business are among the business schools that have heard from alums and companies across the country that it is the softer skills--communication, brokering compromises, managing conflict, developing relationships and leading groups--rather than strategy or financial analysis that are missing in MBA graduates.  And are doing something to address those weaknesses. 

Stamford's B School revamped its leadership-training curriculum this fall, now requiring all first-year students to take personality tests, participate in teamwork and management-simulation exercises and critiques of their people skills.  Professional executive coaches will watch the simulations and offer advice.

At Tuck, the leadership-development program, modeled on corporate programs, that was launched in 2004, puts all first year students in teams of five.  The groups complete coursework together, help each other with assignments and then rate themselves and each other on how well they operate in a team, including how well each of them "solicits feedback and acts on it" or helps "manage conflict."  Reports on their performance are used to inform the coaching sessions the students attend and to design personal development plans.

Says Warren Bennis, professor at USC's Marshall School:  "It isn't just nice--these interpersonal skills.  It's the stuff that's necessary to lead a complex organization."

It is only a matter of time, as they say, before law schools recognize the impact of "people skills training" and follow suit.  Not only are lawyers less educated both in school and in the workplace on the importance of developing these skills and the methods of doing so, the data shows that they are as a group psychologically and behaviorally more challenged  in achieving results.  Which makes this sort of training--whether at law school or on the job-- even more critical.

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"We evaluate 'courage' as a behavioral characteristic of our lawyers, and we link this evaluation to compensation," says John P. Donahue, Senior Vice President, General Counsel and Secretary of Rhodia Inc., in the July 2007 issue of InsideCounsel.   Rhodia has "embraced professional objectivity of its in-house lawyers as a core value" and Donahue wants to make sure that "our lawyers can deliver bad news to clients," with whom they are often closely aligned. 

Valuing Courage

Given the data we have about the strong tendency of lawyers to avoid rather than confront conflicts (yes, even those feisty litigators, oddly enough) (see my article "The Unique Psychological World of Lawyers"), Donahue's goal is one that can't be lauded enough.  Hospital administrators contend that a ratio of 1 conflict avoider in 4 employees results in a "dangerous workplace"--think:  "I don't want to get so&so in trouble over reusing needles" or "Maybe she'll start writing down dosages after she gets used to our procedures". 

Left to their own proclivities, lawyers' much higher rate of avoidance than hospital workers risks being just as dangerous.  Avoidance not only fails to resolve firm and client issues, but at the extreme, failure to report and confront violations of Sarbanes-Oxley, insider trading and discrimination laws, to name a few, can not only crater a career, but also a firm or a company.  Add in malpractice, fraud and the range of criminal possibilities (see, for example, Enron and other corporate demises and the unfolding saga of Milberg Weiss Bershad & Schulman) and silence should never be considered golden.

Hence Donahue's laudable efforts to support and promote courage.   

Which is where our thought for today could end.

Evaluating Courage

But Donahue goes further than suggesting putting in place environmental supports like "constantly talking" about maintaining objectivity, creating a culture that embraces bearers of bad news and rotating lawyers among client departments. He wants his lawyers' courage to be evaluated and then to compensate them accordingly.

Evaluating courage or any other personal characteristic as it relates to their work is a radical idea to many lawyers. Basing compensation on that evaluation is outlandish.  They don't know what a "behavioral characteristic" actually means, don't trust the evaluation process, and certainly don't think their compensation should be linked to so un-rigorous a process.  They are, after all, good lawyers, and good lawyers average in the top 10% on the characteristic "skepticism" in personality assessments (see again my article "The Unique Psychological World of Lawyers").

In this case, they should get over it.  Whether Donahue is using structured assessments or more unstructured evaluation techniques, these behavioral and personality evaluations are likely to be the key for law firms and law departments to break their recruitment and retention quandaries and, as icing on the cake, help solve the diversity dilemma.  (See my January 5, 2007 blog entry "KPMG Model Delivers Risk Management, Teamwork, Client Satisfaction and Diversity Too," reporting on KPMG's use of the Birkman Method assessment to revamp its business model and achieve retention and diversity goals.)

This is not a new position, at least for me.  (See my article "The Case for Assessment: Using Discrimination for Better Hiring," which outlines all the uses of assessments in the non-law firm world and how law firms might profit from them.)  And now the tipping point is in sight as more law departments and law firms inch towards greater use of evaluations and assessments-- and trumpet the benefits.

General Counsel Scott Terrillion, of Boehringer Ingelheim Pharmaceuticals Inc, uses an "evaluative selection method" to find the best attorneys for his company, with diversity being a natural consequence.  Roland Dumas, director of diversity for the legal recruiting firm Major, Lindsey & Africa, points out that "if a law firm screens candidates based on what law school they went to and how well they did there, it won't achieve much diversity.  There simply are not enough African-American and Latino law students in the top law schools who would survive the 'top quarter' cut."  Instead, Dumas recommends "capabilities" interviews, which use rich conversations to probe candidates to find those who have the talents the firm values. 

Struggling to complete with bigger firms, Kansas City, Mo.-based Blackwell Sanders developed a system for selecting and assessing associates that is more behaviorally evaluative than most firms use, and it found that using these behavioral evaluations, starting with the initial interview, enabled the firm to spot talent it might otherwise miss. The firm has documented its efforts in a handbook, From Classes to Competencies, Lockstep To Levels, which, according to the foreword by Ida Abbott, is "an act of remarkable candor and leadership ... [that] will enable law firms to expedite the design and implementation of competency-based evaluations and performance-based advancement."

The proof, as they say, is in the pudding.  Blackwell Sanders doubled the total number of minority associates, tripled the number in recent incoming classes, and increased by 22% the number of females associates.  Perhaps even more notable, a "high" minority attrition rate declined to "0" within four years. 

Jeffrey N. Berman, managing partner at Berman Fink Van Horn, says that for the last 10 years his firm has taken an even more radical step--using individually administered psychological assessments as part of their hiring process. Determining assessment traits important to the firm has given the firm "a handle on the type of attorney that is going to be happy and successful here," Berman says.  

The firm tells all prospective hires, lawyers and staff, that they will be required to take a personality test if an offer is made.  Contrary to the fear of many hiring partners, Berman reports that no one has ever objected to the assessment or refused to proceed, in part, he believes, because everyone in the firm has participated and also because it has been so accurate in predicting success.   "It never ceases to amaze me how accurate the testing is," he adds, noting that it has never proved inaccurate with anyone they've hired, even when the results contravene the impression of interviewers.

So diversity is not the only benefit firms can expect from the targeted use of evaluations and assessments--law turnover and high satisfaction and performance result as well. 

Our firm offers law departments and law firms state-of-the-art advice on identifying the characteristics that produce happy, productive lawyers in your environment and designing evaluations and assessments to use in hiring and promoting those candidates.  Don't be left in the backwash.  This is a wave that can do much to move you forward.

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Herewith a short but concise history of the twisted path that has led to billing by the legal hour, and the consequences of its tyranny.

During the 1800s, US legal fees were capped "per service" by state law, and litigation fees were usually paid by the losing party.  Some lawyers were able to collect "bonuses" or charge retainers to circumvent the limitations of capped fees. 

In 1908, the ABA declared contingency fees to be ethical, which opened a new source of revenue at least for litigation matters.

By the 1930s and 40s, however, the nature of legal fees was set on its head: what had been a capped system turned into a base system.  State bars began publishing minimum fees, in most cases providing that those lawyers charging less than the minimums were to be punished.  Similarly, the ABA Model Code, which stayed in effect until 1969, declared it unethical to "undervalue services."

Helping fuel this change in attitude was the expansion in 1938 of the Federal (and many states) Rules of Civil Procedure, which made litigation potentially more complicated and therefore also less amenable to flat fees.

Over time lawyers complained that dentists and doctors were out-earning them.  A 1958 ABA pamphlet contended that lawyers were bad businessmen in comparison to other professionals, the remedy being to better track time and to keep more detailed records.  That pamphlet also suggested that lawyers work 1300 hours a year-- or 5-6 hours @ day, five days @ week in a 48-week year.

In 1975, the Supreme Court, outlawing both the capped 1800s practice and the base system from the 40s, held that set fees for legal services constituted price-fixing, and was a violation of the antitrust laws.  In response, by the late 1970s, most lawyers charged for their services based purely on hourly billing.

In 2001, the ABA asserted that too much emphasis was being placed by firms on billable hour requirements, which was leading to bill padding and general inefficiency, as well as damaging firm culture.  This time, the ABA recommended billing expectations of 2300 hours annually, composed of 1900 hours billable to clients plus a total of 400 additional hours for: firm service (100 hours), pro bono (100 hours), client development (75 hours), training and professional development (75 hours) and professional service (50 hours).

Those expectations translate into a total 9-10 client and other hours @ day, five days @ week, 48 weeks @ year.  The standard guideline for billable hours is that it takes approximately 10-12 hours to bill 8 hours.  In which case, to achieve the ABA expectations, lawyers would be expected to work 12-15 hours daily.

In April of this year, a group of more than 100 law students from several of the nation's most prominent law schools--Yale, Stanford, NYU, Berkeley-- sent an open letter to law firms on the AmLaw 100 requesting that they improve working conditions at law firms.  Students Building A Better Legal Profession called for law firms to reduce billable hour requirements and to make their billing expectations of attorneys clear.  The group offered to exchange lower salaries for fewer hours. 

The group also promised that prior to the fall recruiting season it would post a list of firms that have and have not agreed to these principles.

Touche.

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Pepper Hamilton has recruited one of their of-counsel attorneys who sits on a diversity committee to be responsible for a new program that Pepper Hamilton is sponsoring with Villanova University School of Law.  Pepper Hamilton will provide two three-year law school scholarships, help screen applicants for the scholarships, hire minority law students as summer associates and new associates, and provide lawyers to lecture and mentor minority college students who attend the law school's summer preparation course.

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Harvard Law School’s goal in its revised curriculum this year is to teach young lawyers how to “resolve client dilemmas.” How exactly is that done successfully in the modern practice of law? By calculating dollars won in the final judgment, for example? By assessing the investment of time and energy versus the payoff? 

Everyone has by now heard of the prevailing sentiment that no one wins in litigation any more. If that statement is even somewhat true, what is the course to resolving a client’s dilemma in a way that will be viewed as successful? 

The mediation industry has arisen almost entirely as a reaction to the mistrust of lawyers and what is perceived as their conflict-escalating processes. Even arbitration is becoming viewed as saddled with some of the time-consuming, rigid aspects of litigation, and in-house counsel are moving towards mediation, or at least including mediation in their bag of tools. Paul Adams, Associate General Counsel at the Gap, finds mediation “a very, very powerful process with a strong emotional component. It’s informal and the plaintiff feels like he’s controlling what’s happening.” He also notes that it allows for more creative resolutions.

Thane Rosenbaum argues in his book The Myth of Moral Justice: Why Our Legal System Fails to Do What’s Right (HarperCollins) that what clients want most is an emotional relief--to feel that their position has been understood and acknowledged. "Clients of all stripes walk out of the courtroom saying 'That’s it? I didn’t even get to say what I think?'" Lawyers, he argues, are limited by their legal vision—rather than just channeling their clients’ anger through a legal claim, such as breach of contract, which may not really address the client’s underlying grievance, lawyers should be listening to and acknowledging the hurt, and be able to offer nontraditional ways for that hurt to be addressed. While Rosenbaum’s claim that our current system of justice is morally deficient does not seem to have been challenged, his suggestions as to how to change it have been met with charges of being naive and impractical.

Web.com’s Corporate Counsel Jonathan B. Wilson’s book Out of Balance: Prescriptions for Reforming the American Litigation System takes a less radical approach to reforming how we address our clients’ dilemmas, including advocating for arbitration, mediation and a number of other alternatives.

Thomas Barton, who teaches creative problem solving and preventive law at The Center for Creative Problem Solving at California Western School of Law in San Diego, extols creative legal problem solving not only for the satisfaction it gives the client, but also for the effect it has on the lawyer involved: it feels great to do creative work that really resolves the dilemma. See www.cwsl.edu/cps According to Barton, there are two major steps involved: expanding the context of the problem so that all the dimensions are exposed, and building a larger repertoire for resolution, which includes being open to whatever constitutes “success” in the client’s mind.

Malcolm Gladwell’s book Blink cites research that shows that doctors who are viewed as a valued resource and are able to build a trusted relationship with their patients are not sued –even if they have committed malpractice. While admittedly a subjective standard, shouldn’t lawyers be aiming for that same type of relationship with their clients? The one that makes them “right” no matter what their advice is?

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