Tuesday shorts: 10/16/07

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Today’s shorts are very, very short.

Email interpretation:  We’ve come to rely on email as a quick and easy way to get a message across.  Quicker than voicemail and an easy way to create a record, we use email for everything from assignments to news to forwarding jokes.   David Giacalone of f/k/a offers commentary on a recent New York Time op-ed piece by emotional and social intelligence author Daniel Goleman titled E-Mail is Easy to Write (and to Misread).  Goleman describes neuroscience-based evidence that email lacks the emotional cues that keep us on track in face-to-face or telephone conversation.  As a result, Goleman writes, “we tend to misinterpret positive e-mail messages as more neutral, and neutral ones as more negative, than the sender intended. Even jokes are rated as less funny by recipients than by senders.”  The discussion is an interesting one, especially because, as Giacalone points out, written materials have always lacked emotional cues, and the primary difference may be the speed and limited attention we pay to writing emails.  Bottom line: be aware of missing context when you write emails and when you read them.

And Matt Homann of the [non]billable hour offers 9 success tips that underlie 25 Ways to Find a Client, based on a post by Dumb Little Man on 25 ways to get a date offline.  The tips are easy, simple, and just plain good ideas for living, such as, “Have a simple goal of making new friends. Don’t put too much pressure on yourself. Seek to find a great friend and see where things lead.”  Dumb Little Man isn’t so dumb.

I’ve also been intending to link to a Law Practice Today article about Matt Homann, specifically his Mini-Manifestos with 15 rules for clients and 17 rules for lawyers.  Practice would be much simpler and better for both lawyers and clients if everyone could apply these rules.  Examples?

For clients: 5.  You want to buy results, not time. Most lawyers sell time, not results. Make sure you both understand the difference before your first bill arrives. You will certainly understand the difference after.
6.  If you want to find a lawyer who sells results, look hard. There are a few of them out there. They are the ones who can still smile because they get to see their children before 9:00 at night.

For lawyers: 9.  Your clients will always know their business better than you do. They may even know the law better than you. Make sure to seek their advice before giving yours.
11.  Your clients have wants. Your clients have needs. They often don’t know the difference.

Practice skills: resilience (part 2 — the strategies)

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As promised in Wednesday’s post on resilience, today’s topic is how to be resilient in the face of challenges and adverse events.

I recently worked with a client who tended to get stuck in things that had gone wrong or felt like slights to her. For instance, after opposing counsel accused her of acting in bad faith in the course of a discovery dispute, she found it difficult to pull herself out of that and wanted to over-correct to demonstrate the good faith that permeates her practice. She felt personally attacked, and she felt defensive and angry. Critically, she experienced great stress in dealing with that lawyer and was concerned that her feelings could compromise her representation of her client. After some probing, we came to the conclusion that developing resilience would help her to move through those stages with greater ease. Here are some of the steps we worked through that resulted in a substantial shift in her ability to recover quickly from adverse occurrences.

1. Examine the event and assess what’s really going on. In this example, was opposing counsel offering valid feedback, or was he attempting to knock her off her game to gain advantage? Is there a third possibility? Was my client exhibiting bad faith?  (And if the upsetting event had been a mistake my client made, the task here would be to determine what caused the mistake — miscommunication, undue hurry, etc.) This reality check leads directly to step 2…

2. Put the event in “proper perspective.”  My client concluded that opposing counsel, known for trying to provoke litigation opponents through accusation and displays of anger, made his assertion because he calculated that it would draw her attention away from the case. Given that conclusion, ruminating on the accusation and bending over backward to prove it untrue would give the event more energy than it deserved. More importantly, such behavior could damage the representation and harm the client’s interest. Analytically, then, it made no sense for my client to continue to be upset or to react to the accusation. But it still hurt.

3. Self-reflection.  My client checked in with what she knew to be true. She knew that she was not acting in bad faith. She knew that she seeks to act and speak in integrity, and she knew that she had done so in this instance.

4. Acknowledge the reaction and then choose the response, and/or shift the emotional energy.  Emotions are what they are. They’re neither good nor bad. My client was hurt and upset by the situation, and it was important that she acknowledge that. Having done so, she then had the choice of whether to respond from the hurt and upset or to rely on what she’d uncovered in steps 1-3 and to respond from that knowledge. In other words, she applied problem-solving skills to determine what would be most effective.


In other situations where there’s no actual response appropriate (for instance, if a lawyer has been trying to develop business and is told no by a prospective client), the best action is likely to shift the emotional energy by asking what else is true. Does the “no” mean this lawyer is incompetent? That he’ll never get other business? Probably not. After acknowledging the disappointment, the lawyer can recognize that he’s been retained by other clients and has done well for them, perhaps shift to a sense of gratitude for those clients and that experience, and shift the emotional energy.

These steps facilitate dealing with whatever has happened by (1) acknowledging the event, its cause, and its impact and (2) responding to the event effectively rather than getting stuck in it.  That’s resilience, and that’s a key skill for lawyers.

Practice skill: resilience (part 1)

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I recently ran across a post by Ruthie on Ruthie’s Law inquiring, “Are you tough enough?”  Ruthie suggests that:

The most successful lawyers are the ones who can accept that occassionally making mistakes is the price of progression, pick themselves up, move on and vow not to make the same mistake again. The most successful of all are the ones who can make the same mistake a second time, pick themselves up and move on (although if you make the same mistake more than twice, you may want to ask yourself if you were really paying attention before).

Her post responds to this one by Dan Hull of What About Clients? that argues that lawyers naturally lack resilience but must acquire it to be effective in practice and in the business of practicing law.  Dan posits that

We lawyers are, in the main, natural-born weenies and squirrels. We are great people. But we sweat small stuff–part of our job, of course–and we over-react. We have amazingly poor defenses to each day’s hard knocks and battles.

. . .

However, without even doing an empirical study, it’s obvious to me that lawyer “over-sensitivity” is a huge problem in our lawyer worlds and workplaces. Our reactions to the sum of small bad stuff prevents us from doing the big stuff or from doing it well. This hurts us as people. But way more importantly, it hurts your client: the main event.

And, for the sake of completeness, Dan’s post was prompted by Mark Bennett‘s post on Resiliency, in which he responds to a post by Ed Poll arguing that lawyers “can’t sell” because they lack resiliency.  Mark, who writes the blog Defending People: The Art and Science of Criminal Defense Trial Lawyering, convincingly excludes lack of resilience as an attribute of criminal defense lawyers.

I find this conversation fascinating and worth some exploration.  My first question is, as usual, is it true that lawyers (as a group) lack resilience?  Whether it’s true as a generalization is much less important than whether it’s true for a particular lawyer, in my view.  And if it’s true for someone, the reason why it’s true is much less important than devising a method for that person to increase his or her capacity for resilience.

So, how can a lawyer choose resilience in the face of a challenge?  Rather than make this post one of mammoth proportions, I’ll provide some strategies on resilience on Friday… So check back!

Tuesday shorts: 10/9/07

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A few things from the last week that deserve to be highlighted…

Bruce MacEwen of Adam Smith, Esq. offers a fascinating interview with Bruce Stachenfeld of Duval & Stachenfeld, a New York-based firm that’s made the news recently with its unusual compensation plan.  The firm pays first-year lawyers $60,000 and calls them “opportunity associates.”  The pay goes to $80,000 after 9 months and then increases semi-annually in $10,000 increments.  After 2 years (and sometimes earlier) successful associates are promoted to “full associate” level, at which point the pay is equivalent to Cravath’s pay plus $10,000.  The Adam Smith interview offers the back story on how the program came to be and how it’s working.  Fascinating.

Steve Seckler of Counsel to Counsel reminds lawyers that “success in the legal profession means having the ability to generate work and the best place to look for work in the future is by keeping up the relationship with existing clients today.”  Cultivate those relationships!

Current or recent job-seekers have no doubt dealt with the question of what constitutes an appropriate writing sample.  Eugene Volokh of  The Volokh Conspiracy started an interesting conversation about the Ethics of Writing Samples recently, springing from a junior associate’s question about what can be used as a sample without requesting the firm’s permission (and thus tipping the job-search news).  The comments touch on ethics, copyright law, opinions drafted by law clerks and their use as writing samples, and more.  As one commenter observed, “what I find interesting is that people cling strongly to conflicting opinions. In practice, this seems to mean that whatever an applicant does is likely to result in a significant percentage of employers eliminating him for it, even though other employers would have eliminated him for not doing it. Wonderful!”

And Orin Kerr, also of The Volokh Conspiracy, posted Fewer Women Seeking Law Degrees,which cites an article from The National Law Journal reporting that the percentage of women in law school has declined each year since 2002.  While the drop isn’t precipitous (46.9% this year as opposed to 49% in 2002), it is significant.  The article speculates that “fewer women want a lawyer’s life.”  The comments spin off into a discussion of legal “jerkiness,” including which gender exhibits more of it and who will and won’t tolerate it in others.

Expecting a bad evaluation? What to do today.

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Evaluation season is coming up soon.  I recently received a question that might be paraphrased as follows, with identifying information removed:  “I’ve had a difficult couple of years for reasons that are partly out of my control (a serious, but now resolved, health issue and a slowdown in the work available) and partly within my control (some mistakes that don’t reflect well on me even though none of them were tragic).  What can I do to manage this situation?”  Since this isn’t an uncommon question, I thought I’d share my answer here.

1.  My first suggestion is to perform a realistic self-evaluation and to be clear with yourself about what has and hasn’t gone well this year, and why.  Understanding what has happened is a step toward correcting any issues.  It also gets you back in touch with the particulars of the year.  That’s especially important during a difficult year so you’re prepared to respond to whatever comments the evaluator may make.  If you’re expecting a negative evaluation, you probably know what the issues are, but this post may help you round out your own review of the year.

2.  Ideally, you’ve already begun whatever corrective action is necessary and you have some track record to show improvement or reversal of a negative pattern.  If not, identify the necessary changes and make them immediately.  If you need input from someone to be sure the changes you’ve identified are the appropriate steps, seek it before your evaluation.  Not only will you get back onto the right path sooner, you will show initiative and ownership of both the problem and the solution.  Implementing your plan may be the make-or-break phase of this approach, and that’s why it’s so critical to start immediately.  The longer you have to turn things around, the better the opportunity to succeed at doing so.

3.  Next, prepare for the evaluation meeting.  Each situation requires unique handling, so it isn’t possible to recommend a particular course of action without going much more into the details of the expected negative feedback and the corrective action underway.  However, by setting your intentions for the meeting (do you want to acknowledge the issue and its solution? do you want to present evidence that you’ve turned things around? other intentions?) you’ll have taken the first defining step toward setting your plan.  (And, of course, implicit in that step is deciding what you want out of the meeting.  Your plan will be quite different if you intend to demonstrate that you’ve corrected a problem as opposed to if you’ve concluded that the problem is insurmountable and have decided to move on.)

And if you feel that the problem may be insurmountable, I urge you to seek guidance from a mentor or other knowledgeable outsider.  Especially when a situation is emotionally charged, it’s sometimes difficult to get a good view as to whether circumstances can be satisfactorily resolved.

4.  Decide whether you want to take charge of the conversation and if so, how.  Again, your intentions will control execution of this step.  If you do want to take charge, you might practice how you will start the conversation and how you will react if the others in the room try to take charge as well.

5.  Decide how you would like the meeting to end.  Of course, this is not 100% within your control, but knowing what you would like to happen  may guide your presentation and your responses through the meeting.

If you’re expecting a negative evaluation, these steps will help to minimize the challenges you’ll confront.  I strongly advise not waiting until the formal evaluation, though, to deal with the situation.  It’s much better to get started as soon as you sense a problem.

 

“I hate being a lawyer”

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When I review the searches that lead people to this blog, I all too frequently find some version of, “I hate being a lawyer.”  Often I shrug and move on without much thought, but seeing the search last weekend took me down a different line of thought.

Is this really true for the searcher?

Maybe it is.  If so, I empathize.  Although I’ve never hated practicing law, I’ve (briefly) had jobs I hated and sometimes had to do tasks I hated even in jobs I loved.  It’s painful to hate something that consumes the bulk of one’s conscious hours, and change is in order — pronto.

More likely, though, it’s not entirely true, though there’s some part of the statement that is true.  So, the key is to determine which of two aspects (and perhaps more) is untrue.  (And for here on out, I’m addressing the “you” who agree with the search statement.)

1.  “I hate being a lawyer.“  What does it mean to you to “be a lawyer?”  How do you interpret that identity, and what do you dislike about it?  Is there a way to reshape “being a lawyer” so that it’s more acceptable?  Is it different to “be someone who practices law” than to “be a lawyer”?  This is a rich area for exploration.

2.  “I hate practicing law.”  This is what I suspect the search is really all about.  But again, is this entirely true?  Is there some part of practice you enjoy?  Maybe you really like research and writing but hate dealing with clients — or vice versa.  Maybe you enjoy the puzzle of tax law but not the clients you represent.  Maybe you want to be on your feet and out of the office more than anything.  Finding the parts of practice that you do like is the key step toward a situation that’s a good fit for you.  This is another area rich for investigation.

Although happy lawyers explain the source of their happiness in many different ways, the common denominator seems to be that they connect what they enjoy to what they do on a regular basis in practice.  I don’t imagine that any lawyer or any person likes every single professional task undertaken, but there’s a tipping point, and those who stay above that point tend to self-identify as happy.  I’ve also observed that happy lawyers connect with a sense of fulfillment or a belief that what they’re doing matters.

The bottom line, of course, is that making the statement “I hate being a lawyer” calls for some kind of action.  Maybe the action is a job/career change, or maybe it’s analysis to identify what changes would negate that statement (partly or completely) and making those changes.

So, searcher, you “hate being a lawyer.”  What will you choose to do about it?

 

Pump up your writing!

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My major (on my first trip through undergrad) was in English, with an emphasis on creative writing.  When I asked my favorite writing professor for a recommendation to law school, she literally covered her face with her hands and started shaking her head.  After determining that she had slid into despair and was not, as I feared, refusing to support my applications, I asked why she was so appalled.  After all, I reminded her, I’d be writing all the time!  But my professor believed that lawyers tend to lose the craft of writing and get mired in pointless Latin, highfalutin’ language, and eye-glazing prose.  I realized, after I’d been in practice for just a short time, that she’s too often right.  We get wrapped up in the law and lose the story.

Brian Clark of copyblogger has written a terrific post titled Ten Timeless Persuasive Writing Techniques.  Some of you may be thinking that it’s odd to refer to a post from a blog devoted to “copywriting tips for online marketing success” to speak to legal writing, but consider a few of Clark’s suggestions and note their application to the law:

*  Consistency.  “Use this in your writing by getting the reader to agree with something up front that most people would have a hard time disagreeing with. Then rigorously make your case, with plenty of supporting evidence, all while relating your ultimate point back to the opening scenario that’s already been accepted.”

*  Address objections.  “If you present your case and someone is left thinking ‘yeah, but…’, well, you’ve lost. . . Addressing all the potential objections of at least the majority of your readers can be tough, but if you really know your subject the arguments against you should be fairly obvious.”

*  Storytelling.  “Stories allow people to persuade themselves, and that’s what it’s really all about. You might say that we never convince anyone of anything-we simply help others independently decide that we’re right. Do everything you can to tell better stories, and you’ll find that you are a terribly persuasive person.”

Every lawyer writes persuasively, and I encourage you to visit this post and to consider how copywriting techniques may help to pump up your writing.  More broadly… From what other fields might you draw in developing your professional skills?  It’s a great question to ponder.

Simplicity: where personal and professional meet

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One of the rules I keep in mind when writing  is that good writing is clear, crisp, and simple.  The same rule often applies more generally as well.  As Einstein said, “Everything should be made as simple as possible, but not simpler.”

When it comes to managing one’s personal life while maintaining a practice, “simple” is the name of the game.  (And this is a good time to note a favorite distinction: “simple” is not a synonym for “easy.”)  For instance, it’s much less stressful to prepare a simple dinner — say, a salad with various store-bought toppings and dressing — than it is to prepare a meal that requires numerous ingredients.  Likewise, I find that dressing in the morning is much more simple when my clothes are in reasonably good order and my closet not overstuffed.  Aspects of life that are more complicated than necessary drain energy.

And the same is true in the office.  If my files are a mess and I can’t find anything, I’ll have to stop and launch a search everytime I need a document, and that takes a tremendous amount of energy away from the task at hand.  Having a cluttered email box pulls at me because when I check for new messages, my eye is drawn to all of the messages I need to answer or otherwise handle, and slick filing system that put the messages out of sight make my life even more complicated.

Simplicity is especially important when personal and professional life intersect or affect one another.  One of my favorite questions to clients working on work/life integration issues is, “What can you stop doing?”  Releasing an activity that isn’t productive (in pleasure or in business) is often one of the most simple and most impactful steps to take.

Unfortunately, though, simplifying isn’t always an easy thing to do.  An overcrowded, disorganized closet may take hours or even days to get straightened.  So, I was delighted to find Simple Living Simplified: 10 Things You Can Do Today to Simplify Your Life on the zenhabits blog.  Ideas include:

— making a short list of top priorities (similar to an Absolute Yes list, which I previously discussed in this post);

— simplifying the “to do” list by identifying tasks that can be “eliminated, delegated, automated, outsourced or ignored;” and

— focusing on one task at a time.

And if 10 simplification steps aren’t enough, check the expanded list of the Simple Living Manifesto: 72 Ideas to Simplify Your Life.  Any list of 72 items feels unwieldy to me, but it’s worth a skim.

Tuesday shorts 9/25/07

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Anne Reed of Deliberations hosted this week’s Blawg Review #127.  It’s a cleverly arranged Blawg Review, using the “17 best tips for voir dire” as an organizing theme.  Reading this round will not only teach you about voir dire (with tips such as #4 watch for points of view, #8 watch for the quiet ones, and #17 remember the majesty) but also introduce you to a wide range of interesting and insightful posts for the week.  Nicely done!

Yesterday’s Wall Street Journal featured an article titled Hard Case: Job Market Wanes for U.S. Lawyers, which describes the disconnect between the top law school graduates who secure jobs in large firms with starting salaries around $160K versus the rest of the graduates, some of whom may struggle to make it on $20-35 an hour document review positions while carrying as much as $100K in law school laws.  Although the article starts with the puzzling observation that “A law degree isn’t necessarily a license to print money these days,” (was it ever?) the situation described is familiar to many recent grads and those who work with them.  Don’t miss the charts that illustrate graphically just how the dollars are — and aren’t — moving.

And today’s inspirational moment comes courtesy of Good Morning America.  Last week, I happened to catch a part of a broadcast and saw Randy Pausch, a 46-year old professor at Carnegie Mellon who has terminal cancer and delivered his final lecture titled How to Live Your Childhood Dreams.  I listened with half an ear at first, but his comments grabbed me, particularly when I heard his tone — clear, funny, not a drop of self-pity.  I believe the interview wrapped up, as the website story does, with Dr. Pausch’s lesson:

You know, life is a gift,” Pausch told Sawyer. “Again, it sounds trite, but if you wait long enough, other people will show you their good side. If there’s anything I’ve [learned] that is absolutely true. Sometimes it takes a lot longer than you might like. But the onus is on you to keep the hope and keep waiting.

The full lecture is split into 4 parts.  Watch it.  You’ll be glad you did.

How to speak as a new associate

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One of my favorite parts of The Curmudgeon’s Guide to Practicing Law (previously reviewed here) is the section debunking the myth that a new lawyer is a potted plant.  It’s easy for a new lawyer to get tripped up by the knowledge that he lacks experience and the desire not to appear arrogant.  So, what’s a new associate to do while learning the lay of the land?

1.  Don’t be silent.  A great many new lawyers will be too young to remember the “potted plant” reference.  When Oliver North was testifying in connection with the Iran Contra hearings, the questioning attorney rebuked North’s counsel Brendan Sullivan for his frequent objections, and Sullivan replied, “What am I, a potted plant? I’m here as a lawyer. That’s my job.”

The moral of this story for new lawyers is, of course, that your job requires you to speak up and to participate in whatever is going on.  A new lawyer is unlikely to have the deciding vote on much of anything, but you’re a fresh brain and new eyes, and your perspective is valuable.  Don’t be arrogant, but do be confident in your ability to contribute.

Some lawyers who are reticent to speak up will need to break out of their comfort zone or to find another method to share their thoughts.  Staying silent is career suicide.  If this is a stumbling block for you, get help from a mentor or coach.  Now.

2.  Ask questions, wisely.  A new lawyer isn’t expected to know everything about the facts of a case, or the controlling law, or the client, or… You get the idea.  However, it’s important to use good judgment in deciding what questions to ask and what you need to discover on your own.  Initiative is a common measuring stick for attorney development, and it’s unwise to get a reputation for asking questions without forethought.  So, ask questions, but make sure you put thought into your inquiry.

3.  Don’t preface questions/comments.  Especially when new and uncomfortable, lawyers may have a tendency to preface their questions or comments with a disclaimer, such as:  “I may be wrong, but…” or “This might be a stupid question, but…” or “Do you think maybe it would be better to…”  These prefaces remove all power from the question or comment.  Of course, judgment comes into play here too, because it may be quite wise to say something like, “I realize the law is unsettled in this area, but it seems to me that…”  Don’t let yourself off the hook in a preface, but do signal appropriate uncertainty.

4.  Manage your tone and breath.  Some lawyers, especially new lawyers, get nervous and their voice shakes a bit or they stumble over words.  And sometimes a lawyer will end a suggestion with a tonal question mark.  Be attentive to your speech pattern.  End statements with a downward tone and questions with an upward tone, and don’t reverse the two.  Explore breath control for presentations.  And remember to breathe — and to breathe out before you breathe in.

5.  Be thoughtful.  Make sure your comments and questions reflect the thought and analysis you’ve put into the issue.  Especially in the early weeks and months of a new job, one of the key tasks is to demonstrate consideration of all the relevant factors and the process of arriving at a well-reasoned and insightful suggestion or comment.  On this point, see What Are You Thinking? on the always thought-provoking What About Clients? blog.

6.  Be ready to respond to questions.  When you’re asked for an opinion, do have one.  It need not be correct, necessarily, but you need to be ready to share and explain it.  Here again, the goal is to demonstrate your insight and your thought process.