This is the third article in a three-part series focused on the evolution of risk management and the business lawyer. The first article, titled “The Moroccan Souk and Your Commercial Contract Headaches,” featured in May’s BLT, focused on solutions to problematic negotiations over limitations of liability, indemnity, and insurance clauses. The second article, featured in last month’s BLT and titled “Data, Contracts, and Making Hard Decision – Changing the Way We Manage Risk” argued that contracts are expensive and inefficient, and proposed a better way to assess and manage business risk, through systematic and methodical assessment, using data collection, analysis, and pragmatic risk management tools. This month’s article steps back from the technical analysis of the prior two articles, arguing for a humanistic approach to business law improvement that, in combination with the analytical techniques proposed in the earlier articles, will lead to more fulfilled lawyers and better outcomes for our clients.
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We know that many business lawyers are generally unsatisfied with their work, either through personal experience or the volumes of headlines, reports, and data that scream that conclusion to us: “Unhappiest Job in America? Take a Guess,” “Why Are So Many Lawyers Are Unhappy With Their Jobs,” “Why Most Attorneys Are Unhappy.” These headlines and the data that underlie them are not new, and despite the many resources our profession has devoted to addressing the problem, it persists. I believe that there is a better way to combat this problem than the traditional remedies, and that is by helping lawyers understand what motivates us professionally, and by helping each lawyer form a plan that provides the best opportunity to realize those motivators. This article shows business lawyers how to create a plan that helps us work toward what motivates us, which will improve lawyer satisfaction and performance as well as generate enormous saving and efficiencies for companies and law firms.
What Motivates Lawyers?
Daniel Pink’s 2010 book, Drive, offers a compelling argument that there is a disconnect between conventional wisdom about what motivates people and what the science and data show. Pink’s central argument is that, for creative professions like the law, financial rewards do not correlate with better performance and professional satisfaction. Pink persuasively argues that better performance and professional satisfaction are correlated with autonomy, mastery, and purpose, and that those businesses that have recognized and applied the science behind these conclusions have generated remarkable improvements to business performance and realized tremendous cost savings and efficiencies. Pink’s analysis helps us understand what motivates lawyers and, through the science and business cases described in the book, gives us a foundation for devising plans that can help lawyers work toward what motivates them. Let us begin by looking at one of our core motivators—autonomy—and how we can apply the lessons of science and business to our profession.
According to Pink, autonomy is “behaving with a sense of volition or choice” and is comprised of four key elements: time, task, technique, and team. At this point, a skeptical lawyer might question whether autonomy is a realistic objective for our profession. After all, we serve a client—how can we be autonomous? However, what Pink means by autonomous is “not the rugged, go-it-alone, rely-on-nobody individualism of the American cowboy. It means acting with choice—which means we can both be autonomous and happily interdependent with others.” Autonomy does not mean that we act independently of our clients, but that we serve our clients in a way that gives us some choice about how we perform that duty.
The first essential element of autonomy is time. It is widely believed that lawyers have little or no autonomy over their time. Whether in-house or at a law firm, the client, the billing partner, or the general counsel needs you to meet a deadline. However, time autonomy is not about eradicating deadlines; it is about how you meet that deadline and how you are compensated for doing so.
The law firm business model is based on compensating lawyers for lawyer input (time) rather than lawyer output (work product). This is the antithesis of time autonomy and a great culprit of lawyer unhappiness. Since the financial crisis, it has become routine to see articles and panel forums commending lawyers for “creative alternative fee arrangements,” although law firm fee structures are rarely creative and usually amount to a discount on hourly rates. In addition, although firms selectively apply alternatives to the billable hour, the law firm business model has not yet changed. It is curious that the billable-hour standard remains, especially given that a viable alternative model has been widely used and refined by the consulting industry for decades. The consulting industry, like business law firms, provides mercenary services to the business world with legions of well-paid associates without sacrificing profits per partner that rival AmLaw 100 firms, and they do it with an output-focused, rather than an input-focused, business model.
Irrespective of why, it is clear that most business lawyers are still captive to the billable hour. So long as the billable hour is a staple of business law firm compensation, we will continue to struggle with giving law firm lawyers autonomy and, therefore, professional satisfaction.
Although time-autonomy restraints for law firm lawyers are more rigid, in-house lawyers also struggle with a lack of time autonomy. In many in-house environments, abiding by the conventional 9 to 5 (or 8 to 6) is expected. In one of my former in-house jobs, it was common to see department leaders strolling the halls at 6:00 p.m. to survey the troops and to hear them criticize department members who took afternoon workouts or who left the office before 5:00 p.m. For legal managers of departments like this, “face time” matters.
Those companies that have experienced success in developing time autonomy for their employees, like Best Buy, take a very different approach. Best Buy eliminated the conventional work schedule which, according to Harvard Business Review, resulted in better relationships, more loyalty to the company, better energy and productivity, and less employee turnover. The point here is that “face time” is not just a waste of time; it destroys value. There is no reason to think that the Best Buy model would not work in a law firm or in a legal department, especially if used in conjunction with task autonomy (described in more detail below).
Another essential element of autonomy as described by Pink is autonomy over task. Companies like Google and 3M give their engineering and technical teams, respectively, 15 percent and 20 percent of their time to devote to any work-related project that the employee wants. These case studies have different implications for in-house legal departments than they do for law firms. At first glance, it might seem impossible for an overburdened in-house legal department to do 15–20 percent less of its traditional workload without negatively impacting the client. However, that same argument is just as true for an engineer at Google or 3M. Most in-house business lawyers have more work than resources and must prioritize accordingly. In the short term, devoting 15–20 percent of a lawyer’s time to a chosen work-related project might jeopardize the bottom 15–20 percent priority of the traditional lawyer workload, but I suspect that the long-term return on investment would be just as dramatic as it has been for engineers, coders, and technical experts at places like Google and 3M. It would be interesting to see what a lawyer would generate with that time, and how such legal experimental doodling might lead to better risk-management for the company or firm.
For a law firm business lawyer, task autonomy is seemingly even more complicated than for the in-house business lawyer. A law firm business lawyer practicing in the billable-hour environment does not really have the choice to find other risk-management solutions to the bottom 15–20 percent priority of his or her workload. However, one potential avenue for giving the conventional law firm business lawyer task autonomy would begin with partner transparency on projects and expected volume of work. Partners would be allowed to schedule a limited amount of work for any single associate (say, 80 percent of that associate’s required hours). The associate would be allowed (and encouraged) to schedule his or her remaining 20 percent on partner-advertised work that the associate finds interesting. Such an experiment would amount to working on task autonomy without time autonomy, and Pink does not speak to what impact achieving one element of autonomy has if others are fulfilled. However, experimenting with one element of autonomy while working toward a larger vision of autonomy is consistent with a spirit of continuous improvement and is preferable to the conventional law firm’s status quo.
Pink’s third essential element of autonomy is technique, or how an employee executes his or her responsibilities. Pink uses several business cases from the customer-service/call-center industry to make the concept real. Zappos.com does not have a supervisor monitoring conversations between service reps and customers, nor does it mandate specific solutions that its employees must give to customer complaints. JetBlue (among others) has added to the Zappos.com approach by letting their customer-service reps handle calls from home, rather than commuting to a drab outpost of cubicles and fluorescent lights. Although these concepts are intriguing, it is the measurable results that impress most: consistently high customer satisfaction and dramatically lower employee turnover, reducing (and sometimes eliminating) recruiting costs.
How to apply technique autonomy to the legal field is less obvious than how time or task autonomy might translate. After all, giving lawyers time autonomy to work when and where they want seems to be the analogy for letting customer-service reps work from home. However, what is impactful to me from the customer-service business cases is not the work-from-home piece, but the freedom that the Zappos.com reps are given to create individual solutions that work under the unique circumstances of each problem. Lawyers often have little autonomy to create a risk-management technique that is appropriate for the circumstances. Too often, legal managers or corporate policy establish absolute parameters that, although provide clarity, do not effectively manage risk in a given circumstance. For example, a written contract for payment of over $100,000 must be reviewed by the legal department and signed by a vice president. Alternatively, the company cannot source a material from a supplier who does not agree to everything in the company’s corporate responsibility code (the drawbacks of these types of rigid standards are explored in my earlier article, “Data, Contracts and Making Hard Decisions – Changing the Way We Manage Risk”). Lawyers must have the autonomy to deliver solutions in a way that is best suited to the circumstances, without micromanagement by their manager, in the same way that the Zappos.com customer-service reps are free to solve customer’s problems.
The fourth and final element of autonomy is team, or allowing an employee to choose with whom he or she works. Applying team autonomy to the legal field is another area that invites lawyers to protest that our field is different from others. Again, clients come to us with their problems, and those clients have often already selected other advisors to help them on the issue. Another barrier to team autonomy is that many lawyers are individualistic, and working on a team does not come naturally. However, those barriers to team building exist for other functions and businesses as well, and yet the successful application of team autonomy has flourished. According to Pink, team autonomy has demonstrated its effectiveness in tandem with the time and task autonomy given by Google, 3M, and smaller companies like Atlassian whose employees pursue their 15–20 percent designated time for self-directed projects with other company employees.
For a legal department attempting to implement team autonomy, the most obvious method is to mimic these models by giving lawyers 15–20 percent designated time for self-directed projects and encouraging them to choose teams to pursue the project’s goals. Those lawyers who like to work on teams must be given the freedom by their managers to form teams for problem solving, either with other lawyers or members of other functions. For the business law firm, there are no other “functions” with which to create teams, but creating cross-specialty project teams can deliver new and promising perspectives to entrenched problems that plague insular practice groups.
The second key component of what motivates us is mastery—the continuous pursuit of getting better at something that matters to an individual. According to Pink, mastery has three laws: (1) mastery is a mindset; (2) mastery is a pain; and (3) mastery is an asymptote. The second law is easy to understand—one cannot master a rewarding endeavor without significant effort. The third law means that no one ever achieves complete mastery, but the way to conceptualize mastery is as an asymptotic arc that gradually approaches a line without ever touching it (mirroring the fact that absolute mastery can never be achieved, but can be approached, first with big jumps then through incremental improvement).
The most interesting of the three laws of mastery, especially for lawyers, is the first law—mastery is a mindset. The scientific basis for this comes from Stanford Professor Carol Dweck, who divides people’s concept of intelligence into two groups: entity theory and incremental theory. Entity theory holds that a person’s intelligence is fixed, whereas incremental theory holds that one’s intelligence is dynamic. For those who conceptualize intelligence by the entity theory, the pursuit of mastery is anathema. For those who conceptualize intelligence by the incremental theory, the pursuit of mastery is elemental and essential.
As lawyers, we see examples of colleagues who, through their behaviors, demonstrate a proclivity toward either the entity theory or incremental theory of intelligence. Entity-theory lawyers believe that our practice is a reflection of innate ability and personality. The entity-theory lawyer believes that evaluation of a lawyer’s quality is subjective and therefore thinks that “mastery” is a concept inapplicable to the work we do. The incremental-theory lawyer believes that, through rigorous logic, modeling, statistics, and data, one can become a better lawyer. The incremental-theory lawyer would identify with the precept that “mastery is a mindset,” knowing that perfection cannot be achieved, but the pursuit of perfection is a tremendous motivator.
When encouraging lawyers to pursue mastery, it is important to understand what type of lawyer is involved. If the lawyer is an entity-theory lawyer, trying to establish a plan for achieving mastery is likely to be fruitless. Mastery is a mindset, and without the right mindset, the effort will be futile. However, if the lawyer is an incremental-theory lawyer, fostering and cultivating a pursuit of mastery will likely pay dividends. Mastery of the law (or any law-related endeavor) is just as elusive as mastery of golf or painting, but establishing clear technical goals, understanding established practices, questioning those practices, consistently tracking one’s progress toward those technical goals, and evaluating the lawyer’s results can be done with lawyers from any practice area.
The final of the three pillars of what motivates us, Pink asserts, is to seek purpose—a cause greater and more enduring than ourselves. Pink cites data showing how both baby boomers and millennials are motivated by more than the basic profit motives and return-on-investment principles that are traditionally associated with corporations. This “more than profit” motivation is not a rejection of capitalism or corporations—it is merely a recognition that deriving noneconomic meaning in what we do is an essential element of the human experience.
Cultivating purpose in a business law environment is tough, especially when many of us have classmates and peers who use their law degrees in ways that are more visibly altruistic or less materialistic. I think that perspective underestimates the value that business lawyers provide to society. As The Economist notes, “Economists have repeatedly found that the better the rule of law, the richer the nation,” and business lawyers are essential to promoting and maintaining the rule of law in commerce. However, the point of this article is not to prove whether business lawyers have a purpose in society, but to determine how to motivate lawyers by orienting them to a defined purpose.
The starting point in helping lawyers to identify their purpose is to ask them. Many of us might respond by listing our job responsibilities or noting our role in supporting a business. A more effective way to help a business lawyer identify his or her purpose is to narrow the scope from the broad role a lawyer plays in supporting a business or an individual lawyer’s job responsibilities to the people who are helped by the work we do. For a law firm business lawyer, that could be a partner or an in-house client. For the in-house business lawyer, that could be a colleague in the finance or marketing department, but I believe that people see purpose in helping other people. That help might be insignificant from the perspective of the lawyer (“I just approved a radio ad—it only took five minutes.”), but if that help is beneficial to the recipient (and the lawyer knows that the work is helpful), our purpose motivator often is satisfied.
The problem for many lawyers is that we rarely get feedback on our contributions and, when we do, it can be inconsistent and haphazard. There are many tools available for obtaining more consistent feedback with better data, but the simplest involves each lawyer establishing objectives with clients, circulating a client survey on a regular basis to monitor progress, evaluating the results, and reorienting and reprioritizing these goals with the client in order to improve.
I know of very few examples of in-house legal departments or law firms that use client surveys in the same way that many other corporate-service functions use stakeholder surveys to monitor performance. This may be because doing so is, at least initially, time and resource intensive. Alternatively, it simply may be an aversion to hearing criticism. I believe that if we are going to consistently give business lawyers purpose, we must collect data and feedback on our work from our clients as part of a consistent, methodical process.
Continuous Improvement Alone Will Not Save Us
Reading Drive got me thinking about what disciplines have used science and data to improve motivation and performance and how commonly that is done in the law. James Suroweicki, in his New Yorker article, “Getting Better at Getting Better,” notes how the application of rigorous science and data, along with a commitment to continuous improvement, has led to a performance revolution in music, sports, and manufacturing. Suroweicki contrasts that performance revolution with the general stagnation of performance in the field of education, which has not adapted the same rigorous approach. Legal writer Ken Adams has said education’s failure to adopt continuous improvement is similar to the legal profession’s resistance to the quality movement, especially contract drafting (http://www.adamsdrafting.com/bringing-kaizen-to-the-contract-process/). In fact, there is a small movement underway to bring the principles of continuous improvement to law, with academics and practitioners writing about how “legal operations,” “LEAN Legal,” statistical models, and rigorous data are going to transform the practice of our profession. Influential Indiana University Professor Bill Henderson has persuasively argued that the economic benefits derived from LEAN processes will dramatically change how large law firms work (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2356330). There are even specialists offering “black belts” and other certifications in LEAN legal and organizations claiming that they can help law firms and legal departments implement those ideas.
The commonality among these proponents of the nascent legal continuous improvement field is their emphasis on finding waste in the legal value chain through rigorous data, logic, statistics, and analysis and using that information to deliver cost savings and efficiencies. This science- and data-driven approach is reminiscent of the revolution in professional baseball in the early 2000s that used and applied advanced metrics and statistics (in baseball parlance, Sabermetrics). The power of Sabermetrics was popularized in the 2011 film, Moneyball, which celebrated Oakland A’s General Manager Billy Beane for outsmarting wealthier teams in larger markets by cleverly applying data and science to maximize player performance.
Interestingly, although fields such as law and education are still trying to harness the power of rigorous data, logic, statistics, and analysis, professional baseball has moved on. Theo Epstein, a famous disciple of Sabermetrics as former general manager for the Boston Red Sox and currently the Chicago Cubs, recently said:
Fifteen years ago there weren’t that many teams specializing in the statistical model to succeed. You could really get an advantage using it. I think the real competitive advantage now is in player development—understanding that your young players are human beings . . . investing in them as people—and helping them progress. And there’s no stat for that. I don’t think everything in baseball—or life—is quantifiable. Sure, if you ignore the stats, if you ignore empiricism, if you ignore objective evidence, then you’re a fool. But if you invest in stats so fully that you’re blind to the fact the game is played by human beings, then you’re just as much of a fool.
Epstein still believes in the power of rigorous data, logic, statistics, and analysis, but he believes that understanding what motivates his players is more important.
A single-minded focus on lawyer efficiency, processes, and cost savings is just as myopic as a baseball GM’s blinded devotion to Sabermetrics. Lawyers need a continuous improvement program that focuses on what motivates them personally, and Daniel Pink has set the foundation for how to accomplish that. All lawyers must understand what autonomy, mastery, and purpose means for them and establish a plan to help them achieve that, all while measuring results and monitoring progress with rigorous data, logic, statistics, and analysis. A well-applied program featuring these elements will have remarkable return on investment through talent retention, improvement in work quality, cost savings, efficiency, and, most importantly, satisfaction.