There are only two bases on which most legal services are ultimately judged: 1) outcome and 2) interpersonal interaction. Of course, price is important but a wide range in price is tolerated as a function of 1 and 2.
It can be very difficult for a client to judge outcome — what part of the results in a particular trial or deal was achieved due to one’s own lawyer’s competence and what might be due to weak or strong witnesses or deal terms, the client’s role, poor or great opposing counsel, a sympathetic or simply mistaken judge or just pure luck? Even, perhaps particularly, lawyer clients are not particularly good at determining the interplay of those factors.
Add to that complex situation that lawyers often sabotage themselves. As we noted in the last entry, there is good data indicating that lawyers as a general matter do not themselves judge well the likelihood of success in matters–usually (and increasingly) conveying unrealistically high expectations to their clients. Thus, clients may in fact be disappointed because of their over-enthusiastic lawyers setting too high a bar, rather than because of any real incompetence of those lawyers in conducting the matter. But how’s a client to know?
So let’s stipulate that judging the quality of counsel by outcome is difficult.
The other most common basis for evaluating legal counsel is their interpersonal skills. While we are notorious among the lay public for our abilities in that area being held in low regard, even lawyers don’t see much to applaud in many of their brethren. According to a study by BTI, "personality issues" is one of the four main reasons general counsel fire outside counsel. Surprised? The same survey found that general counsel often keep an "arrogant" list–lawyers who, no matter how appropriate they might otherwise be, the GCs wouldn’t be caught dead hiring just because interacting with them is so maddening. Of course that doesn’t say anything about those particular lawyers’ skills. But if those lawyers are in fact arrogant because they are very, very good, as more than one lawyer has contended, my bet is they are not getting the result in terms of new business that they were looking for.
In a fascinating study recounted in Malcolm Gladwell’s book Blink, the way doctors talked to their patients predicted which doctors were most likely to be sued. A very short verbal interaction between doctors and their patients were recorded. The doctor’s actual words were obliterated, but the tone, cadence, and pitch were retained. When participants rated these doctors for various attributes, one attribute was highly accurate in predicting the likelihood of a doctor being sued. The attribute was dominance, which easily translates into the arrogance, or I-know-better-than-you, that those general counsel in the BTI study, and many other clients, complain about.
Why do we come off so poorly in this area? Data from the Meyers Briggs Type Indicator gives some insight. The majority of the American public works to create harmony in relationships, while most lawyers are bent on demonstrating that they are right. Americans are largely concrete thinkers, while most lawyers are conceptual, which can come across as "head in the clouds". Lawyers have a lower tolerance for "process" than most Americans, wanting to get to the bottom line as quickly as possible, and as a group they tend to talk less and listen less as well. Other trait data reinforces that picture–we are likely to be combative if a conflict arises or otherwise simply walk away to avoid it. We don’t rebound easily from a mistake and therefore both project our "rightness" and become highly defensive if questioned. In short, as a group, we are not naturally gifted relationship builders.
Personalities are not easily if ever changed. What can be improved, however, are specific behaviors. We can teach our young lawyers to manage client expectations carefully, to help the client understand the complex interactions at work which affect the outcome of matters, and to replace some of those "lawyerly" interaction styles with more client-friendly ones. And your professional development, performance evaluation, promotion and compensation systems should all recognize and reinforce the importance of those behaviors.