On a day’s notice, I was flying in to pitch the general counsel of a major corporation on our firm taking over a big case going to trial. Our “trial” crew would supplement the two-year-old team from the big firm that had worked up the case. We would be the “tip of the spear.”Overnight, our team scrambled to learn what we could about the case. But given the complex transactions and procedural history, pitching substance was out. Track record and laurels, boring. So we pitched process: Out came the SOPs—standard operating procedures.
For years, I had taken crap over the eight pages of bullet points making explicit implicit expectations about team behavior—a checklist governing how we would operate together. This set of rules met with endless eye rolls and elbow jabs. Several partners thought I was nuts when I trained lawyers from another firm in the SOPs after we became lead trial counsel in their case. But they stayed on to try the case with us and came to swear by the SOPs. They were grateful.
So, at the pitch, I slid across the conference table copies of the SOPs—one for the general counsel, one for the head of litigation, and one for the associate general counsel running the case day to day. Instead of pitching track record, we pitched values governing how we were going to behave as a team if we got the assignment.
It was interesting to watch what happened next. The three in-house lawyers joined in a vigorous discussion about the values the SOPs embodied. They asked questions and shared personal reflections and anecdotes. No one balked at a pitch about values and processes.
I have often wondered since what would have happened if our clients had been men. But it seemed perfectly reasonable to these professional women that a trial team would have a written set of expectations reflecting values against which to measure their behavior. A checklist.
How I Got Started
I was used to checklists. When I was in law school at NYU, I learned to fly. I would take the Long Island Railroad from Manhattan to Farmingdale and walk to Republic Airport. My flight instructor would meet me in his Piper Cherokee 140, a single-engine low-wing airplane. You can solo after 20 hours of instruction. But the first thing you learn is to follow the checklist.
This was in the late 1980s, long before Atul Gawande came out with his bestseller The Checklist Manifesto: How to Get Things Right. The beauty of the checklist is that you don’t have to guess how to behave or what to do next. You just follow the checklist and things work.
Now, a trial team is not an airplane. Yet, when you have a set of instructions about how to interact, at least everyone knows what the team leader expects of them. You have a known set of rules. You can tell when someone upholds them and when someone breaks them.
When I started practicing law in 1989, no one gave me a checklist. There was no manual making explicit the behaviors team leaders expected from team members. Sure, there were human resources policies proscribing certain conduct. But not telling me how to act as a team member.
When I became a partner managing a team, I decided to put my expectations in writing. I asked: What would I like to have known when I started practicing that would have helped me be successful as a trial team member? Some of the teachings had to do with credibility and trustworthiness. Some had to do with communication. Some had to do with focusing attention on what’s important. Some had to do with how to be a good person. These step-by-step, sequential protocols were real checklists, and over time they evolved.
When I started practice, big-firm litigators were just starting to muscle in on the traditional territory of the patent law firms. There was a lot of money in patent trials, and the big-firm narrative was that the patent lawyers were not good trial lawyers. The rap was the geeks didn’t know how to talk to judges and juries. They spoke like everyone had a degree in chemistry from MIT. Whether this was fair criticism or just chest beating, I cannot say.
But Fred Bartlit (founder of Bartlit Beck) always said, “Be the teacher” in the courtroom. So I wrote a simple SOP to emphasize this for our trial lawyers. You need to put yourself on the bench or in the jury box. Assume you know nothing about the subject matter. Then, as trial lawyer, teach the fundamentals; teach what the judge or jurors must learn to decide the case. Work in baby steps, thinking visually. Ask, “How can I show this?” Ask, “So what?” “Who cares?” and “Why is this important?” Explain to your decision makers why understanding X matters. These simple admonitions help us be more effective as teachers in the courtroom.
Our firm’s courtroom experience, however, was limited to a narrow niche: high-stakes commercial trials. So managing extreme stress and sleep deprivation is part of trial team leadership. To make expectations clear, I wrote a golden rule SOP: You need to act like a good person. That means you treat people how you want to be treated and you don’t treat them how you would not want to be treated. Instead, you are nice to everyone. Lawyers, staff, custodians, clerks. Not just people with more status than you, like more senior partners or clients or judges. But everyone. And that means no yelling, cursing, or abuse. Ever. It means respecting your team members even when they screw up. And when I held myself to such a standard, I set a good example for the team. Such good behavior helped create more psychological safety, which enabled people to speak up without fear.
Getting younger lawyers to “speak truth to power” by trusting their instincts can be challenging. But in the SOPs, I tell the team members that it is their job to speak their mind and not hold back. I tell them, if your gut is tight, you have to say so. You don’t wait. You don’t second-guess yourself. You act on your instincts. If you are right, you save the team. If you are wrong, you learn and recalibrate.
Establishing psychological safety on trial teams is so important because when people are afraid to speak up, bad things happen. So, when I saw that team members sometimes struggled in dealing with mistakes or getting on the same page about deliverables, I wrote SOPs on how to deal with error and on how to give or take an assignment.
For example, when I was a junior lawyer, I often took assignments guessing about partner expectations. I was reluctant to bother the partner for more information or clarity. I didn’t want to “pester.” I was supposed to figure it out, and their affect conveyed that they were not interested in my probing them. So I just did my best in the blind.
Yet, time and again, I handed in my best guess and then the partner’s affect told me I had missed the mark. Or they just told me I blew it. Or I was damned with faint praise. Sheesh. What a waste of time and talent. What a negative impact on my motivation. It was not a good process.
It would have been better if the partner had invested in a front-end conversation to ensure I understood the assignment. And I would have been smarter to press a conversation to test whether the partner had thought through the assignment and had decided what work product would be most helpful in advancing the cause.
So this led me to draft a checklist for what associates should do when they are initially assigned to a team:
- First, go talk to people who have worked with the partners. Ask questions about their experience and seek guidance.
- Then go meet with the legal assistant (LA) about how that particular team operates and the LA’s expectations for junior associates.
- Next go meet face to face with your case manager (the person who is running the case day to day) about that person’s expectations and how the team will operate. This might include discussing writing style preferences, file naming conventions, how to exchange docs (e.g., NetDocuments or network or OneDrive). Because no two teams are the same, it is important for young lawyers to appreciate that different partners, case managers, and LAs have different expectations.
Then I wrote a checklist for what a lawyer should do in getting a substantive assignment:
- Determine who does what by when in what form and with what follow-up.
- Make sure you are clear about who has the accountability.
- KEY: Expressly discuss exactly what is the deliverable:
a. What form?
b. What level of detail?
c. What interim deadlines apply to keep you on track?
d. What freedom do you have to inquire?
- Agree on a due date—when exactly is this assignment due?
- Once you deliver the work product, what is the follow-up?
- Who has responsibility for the follow-up?
This seems to be basic business practice. Yet, in law, how infrequently do we invest the time up front to get clear about concrete expectations? The irony is that we tell ourselves we don’t have time in our busy schedules to engage in all this time-consuming “process.” Yet, investing time up front protects time, money, and emotional good will on the back end.
Emotions matter. An area fraught with emotion where I thought junior lawyers needed guidance was how they deal with mistakes. Here, I saw two problems. First, lawyers are reluctant to report their errors because their work environments do not reward such candor. The intensely competitive environment of law is not forgiving of error.
This inhibition against confessing error is particularly robust in any “up and out” law firm system. Most big firms have a pyramidical structure with a small group of equity partners at the top supported by a large base of associates. Each year, the associate class gets smaller as the firm transitions junior lawyers out as they gain experience and cost more. This move-up-and-transition-out model sustains the firm’s economics, as the greatest margin is in junior associate hours. In a system that seeks to eliminate junior lawyers over time, it is hard for associates to confess error, the consequences of which are likely detrimental to their career advancement. Candor suffers.
But there is a second problem I observed in how many lawyers handle mistakes: They don’t let go of them. They don’t forgive themselves. They obsess. They beat themselves up. They become self-absorbed in shame and guilt. They steal energy from their teams and the task at hand. This loss of energy is a serious issue in lawyer management. Precisely because the shame and guilt remain in the dark—unexpressed and unacknowledged—these emotional weeds break through the concrete sidewalk of silence, disrupting our path. Even more so at trial.
The Mistakes Checklist
So I wrote an SOP about accepting responsibility for mistakes. Here’s the checklist:
MISTAKES. Everyone makes mistakes. The test of a champion is how you deal with mistakes. When you err, take responsibility, fix it, and move on. Work the problem; do not lament or assign “blame.” Do not delay. Do not hope no one will notice. When you make a mistake, execute as follows:
Acknowledge the mistake (“I made a mistake”).
Work the problem (develop options, pros & cons).
Form a recommendation for fixing the problem.
Go to the person affected & apologize face to face.
Share your recommendation & agree on a plan.
Execute the plan.
Move on; let it go.
Conduct an after-action.
Leaders learn from mistakes. They don’t repeat them.
It is not easy to take responsibility for error. But it is best practice. When you confront error, own it, and accept responsibility, several things happen. First, you process your shame and guilt productively. You give yourself a better shot at moving on and getting your attention and emotional energy back on the task at hand. Second, you enhance your credibility with your team. Everyone makes mistakes. Your maturity becomes an example for your teammates. And if you have good team leaders, they will appreciate your courage. Third, the sooner a team learns of error, the faster the team can develop strategies to recover. That is the most important reason why team leaders should create psychological safety on their teams—so that clients do not suffer and the team can deliver its best work. When people hold back, the team and client pay for it in wasted effort and lost strategic advantage.
Finally, the after-action is a powerful tool for team improvement. When someone admits error, it affords the team a chance to reflect on what went wrong and why. An after-action review invites learning. And a team’s ability to learn from mistakes leads to enhanced performance. That is the hallmark of the championship team. And why SOPs are ever evolving.
So I invite you to consider your own implicit SOPs and make them explicit. Doing so is a valuable exercise. Relationships prosper when team leaders make explicit that which is implicit. No mind reading. Instead, clear communication wins the day and deepens relationships.