Q&A: When an assignment goes awry

I’ve begun including a new feature in my weekly email newsletter Leadership Matters for Lawyers, called “Ask Julie.” Readers can send in questions, and each week I select one to answer in the newsletter. Last week’s question and response generated quite a bit of discussion, so I’m sharing it here.
The question…
I’ve been working for a partner for two years now (since I started with the firm) and I still have no idea what he wants. He assigns something to me and tells me what he wants, but when I deliver it, he tells me he wanted something different. Last week is a perfect example. He asked me to prepare an outline for a deposition he’d be taking, and he told me that all he wanted was a topic outline with reference to the key documents. He specifically said he didn’t want any questions. So I prepared the outline and left it in his office, and about an hour later, he stormed into my office, furious that I hadn’t given him questions! I ended up working all night. I’m at my wit’s end with this partner. What do I do?

Julie responds…

You’re in a tough spot, no question about it. It’s difficult enough when an assigning lawyer doesn’t give enough information for you to know what he or she has in mind, but when you’re told to do something and then told that you should have done something else, it’s a no-win position.

A few suggestions that might help:

Always, always take notes when this partner is giving you an assignment. If you see him coming and you don’t have a pad and pen, get one immediately.
Be sure you ask clarifying questions so you’ve pinned down exactly what he’s telling you he wants. For example, if he says he doesn’t want deposition questions, you might ask whether he’d like an outline that mirrors how the questions might go or whether he’d like a topic-only checklist.
For larger projects, send a confirming email and check in with the partner while you’re in the process of doing the work.
To the extent possible, anticipate the changes that he might make. So, having had this deposition experience, you might choose always to write out questions (or to dictate them for quick transcription) even when he says he doesn’t want questions. There’s a balance here, of course, between anticipating what the partner might want from you and burning time that will be cut as unnecessarily spent. But once you’ve identified a tendency, do what you can to prepare for it.

Consider where your breaking point lies. Your frustration is evident in your question, but how serious is it? Should you have a respectful but pointed conversation with the partner about his reversals? (“Bob, it seems to me that fairly often you ask for one thing but really want another. An example is when you told me not to write deposition questions, just an outline, and then asked for questions when I gave you the outline. I know you aren’t doing this intentionally, and I want to give you exactly what you want and need to advance our cases. How can I ensure that I’m doing that?”) Are you ready to look for another position, either inside your firm or elsewhere?

The sole advantage of this situation is that you are learning to evaluate what’s needed for projects independently of what the partner requests. Learn to balance your independent action with what’s likely to be useful (and therefore billable) and you’ll stand a better chance of satisfying this partner and advancing your own professional development.

Several readers wrote in either to express sympathy for the questioner or to provide some additional thoughts. Some of the feedback I received included excellent points that I want to share with readers, especially the questioner. Those comments follow (with the authors’ permission):

Reader #1

Excellent suggestions.

Only one additional thought for you. More senior (than the trapped lawyer) supervisors sometimes operate on the afterthought level. They may not have said what they meant to or the lawyer may not have understood. It could be helpful for the lawyer to give the senior a copy of the notes. Or even better to outline briefly what the senior said is wanted and give that to the senior. And include a request for any suggestions the senior might have about the work outlined in the notes. In some cases, it may help to send short work in progress reports to be sure there is a record of what the lawyer understood the senior wanted.

Of course, nothing is simple or perfect. The senior always may say at the end that’s not what was wanted, but going through an iteration process sometimes does help. Even with the most inept senior. And as a last resort could help with the review committee if the firm (wisely) sets that process up.

Reader #2 (edited for emphasis)

I read your response to the young associate’s question of how to keep the partner happy if he changes the assignment all the time and felt compelled to respond even though comments were not invited. Frankly, I think the point of view of the partner should be considered by the associate as it highlights the inexperience of the associate in understanding the nature and purpose of the assignment. If the associate wants to take the partner literally and do “no questions” and a “topic outline” then she will never understand an assignment from any other lawyer. I think for the benefit of your readers, particularly young female associates who I have seen over 25 years not “get it” when they receive an assignment, that you ought to give the other point of view.

Here’s my two cents which comes from being a partner during the past 19 years as well as the owner of two law firms and getting my battle scars in a third large firm where I was an associate and worked with a number of partners. A partner is bombarded with more work and demands than can be met in the available time. He/she relies on associates knowing a file, knowing what information must be extracted from discovery to put together a winning strategy, and having the ability to put the facts and theory in a single lucid and useful document that a partner can literally pick up the day before the deposition, review quickly and take to the deposition with the necessary documents to ask questions.

If the partner asked for questions, the associate (as I have seen on too many occasions) would fill the paper with meaningless questions about background and other formulaic material that a partner already knows how to cover (e.g.. what is your name, how long have you worked at the abc co., what positions have you held?) So as a partner I too would say, I don’t want questions from the associate. What I want and need is an outline, by topic, with a listing of issues and subtopics that get to the heart of the matter, annotated with documents that pin the witness down on key admissions that help the case, with the documents attached to the outline in a useable format (such as one copy for every party attending, the witness and the court reporter, and a blank exhibit sticker on it so the appropriate marking can be added at the deposition, all in a folder or clipped together in a way that I can tell what question the materials apply to, and the top copy being my copy, highlighted in the areas I need to focus on); that would be a useable document and superb work product from an associate.

For example, if the topic is “knowledge of the contract in question”, the list of subtopics should include: did Mr. Smith see the contract, learn of it by reference in an email, learn of it by reference in a conversation, learn of it by reference in a meeting, learn of it by reference in a purchase order or subsequent communication from the other party, and after each subtopic (of course there would be more subtopics) a short sentence that indicates what the law firm knows about each of these scenarios, such as: “Mr. Smith was cc: on the email from Mr. Jones of 5/1/08 referencing the contract” and attach the email.

But in all my years of practice, the associates focus on the boilerplate meaningless questions that everyone learns in law school or can find in any deposition text. The associates fail to think through why they have been given the particular assignment, how it will be used by the partner, and what is the level of detail that would make it a meaningful document for the partner. After all, the partner thought highly enough of the associate to give the assignment to her, and to charge the client for the time, so this strongly suggests the partner wanted something meaningful and useful that he did not have the time to put together himself.

Unfortunately, associates do not understand a partner’s job. If they did, they would have made partner by now. Associates instead jump on the easiest excuse at hand rather than their own lack of introspection of the assignment and its value to the partner and the client.

Your suggestions to the associate make sense but again, taken literally will cause the partner to not want to deal with that associate because it looks more like she is trying to paper a file than do the task at hand. I cannot imagine walking around a law firm without always having a pen and paper with me. One never knows if they will be stopped in the hallway with an assignment, caught offhand with a telephone call while out of one’s own office, or given an assignment simply because they were the first associate in sight and something needed to be done immediately. In any scenario, few things were more frustrating to me than an associate that walked around the busy law firm empty-handed or worse yet, came into my office without pen and paper.

Clarifying questions should be asked, of course. But if done in a way to micromanage the assignment, they are sure to offend. Similarly, sending a confirming email is seen as nothing more than papering the file, and demonstrating one really doesn’t understand the assignment. (e.g. “This email confirms you don’t want questions but want a topic outline for the deposition of Mr. Smith.”) Repeating the words used doesn’t demonstrate real understanding of what the associate was asked to do. Similarly, preparing statements that end with question marks won’t satisfy the partner when the first approach fails and will unleash his wrath when he sees the bill and the time that must be cut.

Too many associates also do not understand that young partners are in the early stages of learning how to delegate and will make mistakes like not explaining what they really need as part of an assignment; if the associate’s problem is with a young partner, she needs to factor this into her assessment of how to clarify assignments so they are done right the first time.

So what is an associate to do? Think. Think about how the document will be used and what will save the partner time such that he has asked the associate to prepare it rather than do it himself. Ask how the partner thinks he will use the document so its format fits the intended use. Ask if it would be helpful to attach a copy of relevant documents and if the partner wants enough copies for all attorneys attending and for the witness and court reporter; don’t just assume. Consider if the partner is senior or junior and whether he/she knows the file or how to do the upcoming task. (e.g. In one case, a junior partner did not know how to prepare jury instructions and asked an associate to do the project, who also had no clue how to prepare the instructions for a state court case. Regardless of rewrites and sleepless nights, neither one was going to get it right until they asked an experienced attorney what the final work product should look like.)

I have seen too many smart associates dig a hole and ruin their career at a law firm by not thinking through their assignments and then blaming it on the messenger. Inevitably, word travels that the associate doesn’t turn in what was asked for, and the assignments to the associate start to dwindle until the associate gets the message that her services are no longer desired at the law firm. Changing law firms will not solve the problem for the associate if she is not applying her own analysis to the assignment and its purpose and case goals because the same problem will occur at the next law firm.

Having defended the anonymous partner, I note that there are lawyers who change every word in a perfunctory letter, rewrite every billing entry, and change their mind as to what they want from an assignment but don’t bother to tell the associate until the last minute. If the particular partner demonstrates that type of behavior, the associate is past the breaking point and should get reassigned immediately. That type of behavior is not the norm, is rarely seen and clearly is unfair to an associate. If a law firm will not initiate a transfer under that circumstance, where it clearly knows about the partner’s track record, then it is time to move on to greener pastures.

Feel free to reprint, ignore or use my comments, in whole or part, if you wish Julie. I would very much appreciate it if the message could get out to the inexperienced associates that as licensed attorneys they have an obligation to think, initiate and improve a case assigned to them rather than work as an automaton whose every move is micromanaged. Associates need to remember that they are valued by the law firm and partner or else they would not have been hired and given the assignment. Too many good attorneys get discouraged early in their career because they do not understand their role in a case and as part of a team with the partner. As a result, the profession is losing good attorneys who get disillusioned early about the practice. The members of the bar need to be proactive and try to reverse this trend whenever possible.

Julie’s final comments

Excellent points, particularly in the second author’s last paragraph.

I’ll also share that, when I was a second- or third-year associate, I was asked for a deposition outline, with no questions and only topics. (My experience is one of the reasons I chose this question, as a matter of fact.) I asked the assigning lawyer whether he wanted any questions at all, or whether he wanted an outline that tied together the facts, documents, and legal positions so he could formulate his own questions, and he said that’s what he wanted. That’s what I prepared and (you guessed it) he was not happy when I provided him the outline, because he wanted questions. I’m not saying that I clarified perfectly, but I do hold that the miscommunication, if there was one, wasn’t attributable solely to my inexperience.

So, the original questioner must inquire which of the suggestions is most on target for his situation. Does he need to clarify, to think more strategically about the assignment, to seek assistance, or something else? Original questioner, please feel free to write in with any follow-up.