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May 01, 2022 Vol. 47, No. 5

The right decision at the right time: How the bar president can help the board do its best work

By Marilyn Cavicchia

Say your bar has a 30-member board. Each board member has an average billable hour of $300. There are 10 meetings per year, each lasting three or four hours.

“You will be shocked if you do the math,” said John Phelps, owner and founder of Pathfinder Executive Consulting. “We have people who are putting aside their livelihood and their business, especially if they’re in private practice, to come together and make decisions.”

A poorly run meeting can waste that valuable time, Phelps said, and, he believes, so can many attempts to make meetings more entertaining. Retreats are great places for guest speakers, “fun stuff,” and team building, he advised, but “think of your board meetings as business meetings.”

At the 2022 ABA Bar Leadership Institute, Phelps—who was previously the CEO/executive director of the State Bar of Arizona—shared tips (both his own, and some gathered from attendees) on how to run a board meeting that brings about good discussion and decision making while also respecting everyone’s time.

The work begins before the meeting does

One of the first—and best—things a bar president can do, Phelps said, is to invest in the partnership with the executive director. “Sometimes as volunteers, we think we have to do all, know all, and be all,” he said, but the executive director has likely been there much longer than the president and wants to make sure the president succeeds.

There are times, Phelps said, when that strong relationship involves some frankness. For example, a president who is habitually late to board meetings should be told that their being on time sets the expectation for the rest of the board. In fact, he added, it’s best if the president arrives early, so they and the executive director can spend half an hour in private, becoming comfortable with the agenda.

An executive director in the audience said she gives the president the agenda three or four weeks in advance of the board meeting, with indications of where she thinks there may be some controversy, so the president is prepared to make sure that all perspectives are heard and that the meeting keeps moving.

Whatever system the president and executive director work out, Phelps said, it’s important that they work together to define and frame the issues that are to be discussed, and to map out how the meeting will go. Without this prior work, he added, the discussion may “go around and around the room for 20 or 30 minutes, and then someone says, ‘What were we talking about?’”

As part of the preparation, the president and executive director should look at any committee reports that are on the agenda and plan how the president should smoothly hand things off to each committee and then smoothly transition back to the next committee or the next item on the agenda. Otherwise, “People just get mesmerized,” Phelps said, “and the bar present gets mesmerized along with them.”

Creating an agenda and sticking to it

Often, Phelps said, the “generative, big-ticket, strategic issues” that should occupy much of the board’s focus get pushed off because the small details seem more manageable. That’s where a strong agenda comes in, he said: Research from the U.S. Military Academy (West Point) suggests the average adult attention span is about 45 minutes—so, put the most critical items early on the agenda and build in some breaks.

Phelps is also a fan of indicating a timeline for how long each agenda item is expected to take; one attendee said he learned this at a previous BLI, and that the board keeps track of whether the meeting is running on time, and when it is, they take a quick moment to celebrate.

Consent agendas can be very helpful in staying on time, but sometimes people pull things off the consent agenda and want to discuss them more thoroughly. In that case, Phelps said, the president can act as “circus master” to get the meeting back on track without squelching the discussion. How can the president do this? Phelps suggested saying something along these lines: “We didn’t plan enough time for this on the agenda. I apologize for that. Let’s put it in the next agenda unless it’s urgent.” If the discussion of this item is allowed to drift for 25 or 30 minutes when it was expected to be only five minutes, he added, people will get frustrated and start checking their email and working on other things.

Phelps also recommended creating a standard format for agendas, so people expect that each meeting will follow a certain pattern. But none of these tips mean the agenda should be completely rigid, he added: It’s a good idea to build in a little extra time for flexibility, and if an agenda item seems as if it might take longer than planned, the president can discreetly ask the executive director if they can make time for it.

Here are some additional ideas on how to build an effective agenda:

  • One attendee recommended indicating on the agenda what the function of each item is (e.g., “information,” “decision”), so board members know what will be expected of them at each point during the meeting. Phelps said this can help counteract a tendency that’s “in the lawyer DNA”—the desire to immediately jump to a solution or decision, when perhaps the best outcome for a particular item at a particular meeting is that the board takes in information.
  • Another attendee said his bar has started directly connecting each agenda to the strategic plan, and that this has been “transformative.”
  • Phelps said nonprofit experts suggest changing the language used in agendas, so each item is a question, such as “Do we have enough resources to fund our programs and activities in the next year?” “Do we want to start a new program focused on __?” “Is there a threat from the state legislature?”
  • “We tend to bury our board members in materials,” Phelps said, adding that nonprofit experts say most people don’t read materials before a meeting, despite best efforts to persuade them to do so. Rather than fighting this, Phelps advised, acknowledge it by building in 15 minutes on the agenda to read materials before making a decision.

Facilitator in chief

During a meeting, Phelps said, the best role for the bar president is “facilitator in chief—not a dictator.” Watch the room carefully, he recommended: Is there someone sitting quietly but with a concerned expression on their face? Draw that person out, he said, and ask what they think.

“You want to promote differences of opinion,” Phelps said, even though it can be painful when board members disagree. “That’s how we get the best decision.”

An important part of facilitating, Phelps added, is to “control the flow.” Sometimes, he said, one board member will make a point, and then others will make that exact same point, just slightly rephrased—and as result, 30 or 40 minutes are spent on one agenda item without new information or perspectives being added. One attendee said her bar manages this by having the president ask whether anyone has something to say that is different from what was just said.

Are we ready to make a decision?

Since his retirement from the State Bar of Arizona, Phelps has worked as a knowledge specialist and coach at the Arizona State University Lodestar Center for Philanthropy and Nonprofit Innovation. Studies from Lodestar suggest that the optimal size for a nonprofit board is seven members (though Phelps himself prefers nine), and that “for every one member over seven, your decision-making capability goes down by 10 percent.” Those with somewhat larger boards might take heart from a law review article from UC Hastings College of Law, which said that for larger bars in particular, a 15-member board may be ideal.

However many board members there are, said one attendee who is a member of the ABA Standing Committee on Bar Activities and Services, it’s important that each know that the board is not a legislative body and that all decisions must be based on the mission and on what’s best for the bar, not necessarily for various factions within it. This is sometimes difficult for board members to understand, the attendee said, especially if they are elected rather than appointed. Phelps noted, too, that at mandatory bars, board members’ decisions are sometimes clouded by a desire to “protect their members from the bar.”

One attendee mentioned that his bar has a two-meeting rule for some decisions, meaning that at one board meeting, the issue is laid out, and the board commits to making the decision at the next meeting. Another attendee said that the board might ask a committee to do some further work between the meetings to aid in making the decision.

Phelps said he does like the two-meeting rule—but that he’s also a fan of Colin Powell’s 40/70 rule, which says you only need between 40 and 70 percent of the information you could possibly have in order to make a decision. If you gather less than 40 percent of the information, you’re being reckless, Powell believed, but if you delay the decision until you have more than 70 percent of the information, there’s a good chance you’ll miss an opportunity. Phelps, a lawyer himself, said this can be difficult for bar board members.

“As lawyers, we want 98 percent of the information,” he said, “and we want 100 percent if we can get it.”

Sometimes, Phelps said, a decision must be made that same day, and in terms of the information, “you gotta go with what you’ve got.” If, for example, the bar is being sued or the state legislature has introduced a bill to eliminate it, it would be a bad idea for someone to invoke the two-meeting rule and make a motion to table.

“If ever there was a time to be adaptable and flexible,” he said, “after the past two years, that time is now.”

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