October 23, 2012


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Out on a Limb: Bouncing Back from a Bad Review

In the latest installment of the Law Practice Case Study series, a fictional associate needs advice after his first performance review. Offering recommendations on the scenario are Martin Camp, Barbara Miller, Reid Trautz and Richard Turnbow.

This case study is the third in a Law Practice series. We posit a scenario that many of our readers confront and ask selected experts to discuss solutions. The goal: To provide our readers with practical how-to approaches they can apply in the types of real-world situations that arise in lawyers' lives.


THE SCENARIO...Michael slowly shut his office door and returned to his chair. He dropped heavily into it and rested his face in his hands. He felt like the floor had just dropped out from underneath him. After a grueling year on the job as the only associate with a six-partner law firm in a smaller Midwestern city, he had just received his first performance review—and it did not go as he had hoped.

...He had expected to receive some well-deserved praise for his hard work since joining this firm after a difficult job search. Instead, he had been found to be deficient in skills he didn't even know he needed to possess. Skills he certainly hadn't been taught in law school—or by any partner in the firm.

John, the senior partner who had conducted the review, had been nothing if not kind. Michael could tell that John wanted him to do well and prosper with the firm, but now John's words from the evaluation were burning a hole in the pit of Michael's stomach. He knew that he hadn't brought in any new clients since he'd joined the firm, but the other firm members should understand how hard he was working just to complete the assignments they gave to him. Okay, maybe he had gotten a little carried away on the research for the Smith project, but at the time it didn't seem to be excessive to run down the answers to all those potential problems he had brainstormed, or to take those six depositions. That was also why he hadn't returned Mrs. Brillig's phone calls. (She called constantly, after all.)

Michael took a deep breath. He thought about who he should turn to and what they would say...



Step Back and Analyze What Was Really Said Before Deciding on Next Steps

Martin Camp - Michael, and any newer associate facing his situation, would do well to seek the advice of a mentor. If I were the mentor listening to Michael recant his story, here is how I would advise him.

First, we must reconstruct what actually happened at the review. How negative was the message, really? Sometimes it's difficult for lawyers to accept any criticism, constructive though it may be. Generally, because they've done well academically just to be accepted in law school, young lawyers are mainly accustomed to success and praise. Also, perhaps Michael has not received a lot of feedback in the past. So he may be reading more into the review than was there.

In some ways, especially early in one's career, the kind of review Michael received—with actual comments on specific areas for improvement—is much more constructive than a general "you are doing great" with a lot of "at a boy's" thrown in. Those kinds of reviews might make an associate feel good but they do nothing to help him or her improve. Many an associate has been blindsided by firms in which the reviews, if any, are general and nonsubstantive. Here's what happens: By the time the associate is up for partner in this type of environment and does receive a negative evaluation and an explanation about why partnership is being postponed or denied, he or she is left wondering why these shortcomings were never talked of in the past so something could have been done about it.

Second, we need to reconstruct as closely as possible what was actually said and how it was said. What was said and what Michael heard may not be the same thing. For example, if John said something like, "You are expected to be able to develop clients," that is a different message than, "We are very disappointed that you have been here a year and have not developed any new clients." The first message is aspirational and advice for the future. The second is a direct comment on an unmet expectation.

Likewise, the remarks about spending too much time on the Smith case can either be viewed as criticism of Michael's judgment and ability or they can be taken at face value—as in, "You need to learn from that experience." No one is perfect. Associates, particularly in the early years, often misjudge the amount of time it takes to do a project. It's part of the learning curve. Lastly, the comments about not returning Mrs. Brillig's phone calls probably reflect actual complaints that John received. Some clients are like that and associates need to understand that it's critical to return calls, even from high-maintenance clients, especially if they are major clients of the firm. A rule that all calls are returned the day received or the next is important, not just for the Mrs. Brilligs of the world, but for all clients. Lawyers failing to communicate is one of the biggest complaints that clients have.

Third, even if we assume that each of the criticisms were genuine expressions of disappointment at Michael's performance, what is important now is that he take an active role in addressing each concern. He must consider this news as a gift to allow him to be proactive. Self-pity at the unfairness of it all might be a natural response, but it will not help him achieve his goals. He should get back to John in a week or so and ask specific questions about how he can improve and how he can meet expectations. Then he needs to act on that advice. If the partners expect Michael to develop business, he needs to allocate time to being involved in the community by joining groups where he may be able to make client contacts. He can consider writing or speaking opportunities where his name will be put out as an expert. This time is sacrificial and will probably not come from the time he is otherwise expected to bill. Early years as an associate are dues-paying years. But if he takes the proper steps, he will find over time that he has developed a reputation in the community —which will help him not only at his current firm, but also anywhere else he goes in his career.

Our young associate can also make sure on future projects that he stays in communication with the assigning partner and checks before spending too much time on various aspects. If he makes this change, he will develop a better working relationship with the senior lawyer and be less likely to be criticized in the future for doing too much or running down rabbit trails.

The last message from the evaluation is easily rectified. Michael must return calls within 24 hours, and sooner if possible, period. If he gets a chance to work for Mrs. Brillig again, he should be especially attentive to her and try to win her over with his concern and attention. It may not be easy, but one little "You know, I have been very happy with Michael lately" from her to John will go a long way to showing John that his associate listens and learns.

Finally, if Michael truly believes he was sent a very negative message about his chances at the firm and this assessment is echoed by his mentors outside the firm after they hear the language of the review, he should still implement all the preceding suggestions and also seriously look at what he would do if he was not at his current firm. Talking to a headhunter about prospects is one option. Reviewing what he likes and does not like about the firm and the practice is healthy, too. He could also look at clients he is working for to determine if he might ever want to work in-house. Another option is networking with friends in other firms to see if they are aware of openings. Many firms hire laterals with experience instead of associates right out of law school because they do not want to train them. In the final analysis, Michael must realize that his career is his responsibility—and he needs to take charge of it.

Keep Seeking Input and Grow and Learn from It

Richard Turnbow - Most of us appropriately work hard and look forward to receiving positive feedback that acknowledges our efforts and results. However, while positive feedback is wonderful, it may not be the most useful communication when it comes to improving our skills and preparing for a long and satisfying legal career. By the way we communicate and seek input, we can encourage or discourage negative feedback. I would suggest that fostering a climate where negative feedback is invited on an ongoing basis can be very constructive. You have to have a positive view of yourself and your skills set to go down this road, but it can be very good for your career.

I agree completely with Martin's observations. I also suggest that our young associate visit with John, the senior partner who provided the review, and demonstrate a strong willingness to respond to the feedback and learn and correct behavior where needed. Michael should thank John for the feedback and solicit more feedback from him and others on an ongoing basis. This approach will demonstrate an emotional maturity necessary for a strong career of serving clients.

It's also important that with every assignment the associate ask the assigning partner for (1) an estimate of the number of hours required to complete the task to the partner's satisfaction and (2) a date, or time, when the work should be completed. From there, the best move is to get the completed project to the assigning lawyer before the time the partner felt she or he wanted to have it.

If during the course of communications, our associate detects that everything is not just right, he should ask questions and seek input to understand why the partner or client is hesitating. Again, seeking feedback, even if it might be negative, helps build career skills. Whether Michael stays and progresses with this firm or moves on to another, this approach will serve him—and associates like him—well.

The early years as an associate can be very time-consuming and demanding. But these are growing, learning years and can also be very satisfying.

Exhale and Move Toward the Conversation with Poise

Barbara Miller - I'm interested in how Michael conducted himself in John's office. It can be so devastating for young lawyers to hear they aren't who they think they are. Mucking with people's fundamental sense of self tampers with a foundational aspect of human survival. Richard's suggestion of creating a culture that values ongoing feedback is a good one. I would amend the suggestion by adding that both positive and negative feedback be routinely expressed. Timely, specific, direct feedback is key to performance excellence. Now, back to John's office to explore how an associate can react during the actual time of evaluation...

Michael's immediate goal is to survive the surprising commentary with poise and dignity. Collapse and discouragement, blame and frustration may follow—but privately. In truth, the understandable, though undesired, response would be to become defensive, or revert to dissembling and argument, or even display emotional distress by tearing up. But this will thwart the partner's efforts to give the needed feedback.

Michael might unconsciously hold his breath, thereby increasing his physical stress levels and conveying defensiveness. But what he needs to do instead is move toward the conversation, mentally, emotionally and physically by exhaling. He should uncross his arms, sit down if standing, and begin clarifying what's being said. The fastest way to release the adrenalin flooding into his system (it's the automatic fight-flight-flee syndrome in the brain) is to breathe normally and exhale as often as can go undetected. Discouragement and confusion often follow high hopes, and Michael needs more information. To buy time, he might ask for a legal pad and pen to take notes. It will slow the moment down and allow him to breathe. Then he can turn to his intellectual curiosity for detailed information. "Tell me more."

John may have tapped into a preexisting condition in his associate: self-doubt. High achievers are often highly self-critical. Michael could be thinking, "I knew it. I only thought I was working hard. These lawyers are really good and I'm not made of the same stuff. I'm fooling myself."

Or, the defensive, self-protective internal thought, "After all I've done exhausting myself, having my girlfriend be angry because of the time and effort I've been putting in here, after caring so much that the senior lawyers had all the research possible to benefit the Smith case— this is what I get?!?"

The learning for senior lawyers is to give positive feedback first, then isolate the difficulty, and end with positive feedback. Jeopardizing or threatening the long-term relationship puts anyone in survival mode and can shut down open responses and creative problem solving. Become a coach, teacher, guide.

Having followed the advice here, Michael then exits John's office, mustering good eye contact and a strong voice, and says, "I appreciate the feedback. I guess I've got some distinctions to make about what's valued here. I know you're on my side and I may return with questions about moving forward. I would appreciate your continued counsel."

Heed the Wake-up Call and Write a Skills Development Plan

Reid Trautz - My first thought, I admit, is somewhat unsympathetic to Michael: I wonder why he chose to be the sole associate in a six-partner firm. Associates are a great way to leverage firm knowledge and increase profitability, so why is there only one at this firm? Unless he already knew that some of the partners were recently elevated from associate status, Michael should have inquired about other associates—either directly with the partners or through other local lawyers or other sources—before accepting the position. If he had learned up front whether the firm rewards associates with partnerships or churns through them in rapid succession, he could possibly have avoided his present situation.

But moving on to the current circumstances, and to paraphrase a famous movie line, "What we have here is a failure to communicate." This situation is the result of minimal communication and differing expectations, something that should have been more thoroughly discussed at the outset of employment. However, in my experience, this situation is quite common at law firms—and other types of businesses, too.

Ultimately, though, Michael should not be discouraged about this evaluation. It is certainly not the end of his career at this firm or any other. However, it should be considered a wake-up call for both Michael and the firm. Michael will need to take the lead in this situation, especially if he otherwise enjoys working at the firm.

A critical step for him is to seek another meeting with John, the evaluating partner, with the following strategy: He should discuss his belief that there is a disconnect between his expectations and those of the partners, that he wants to better understand the expectations, and that he wants to create a plan to meet or exceed those expectations. He should ask John or one of the other partners to be his mentor, to help him create and execute a plan to help the firm and his career development. After all, a goal without a plan is just a wish.

Michael's plan needs to include written expectations and quantifiable goals in several areas: billable work hours, client management training, professional development (including CLE), and marketing and client development skills.

The plan can specify the approximate number of hours for each area, and the order of priority for Michael within the firm, too. Michael and his mentor should develop the plan together, so that when the plan is finished his mentor can act as an advocate with the other partners.

In the process of drafting the plan with his mentor, Michael may well find that the firm has higher billable-hours goals and lesser time commitments for his professional skills development. But Michael needs to understand that he is solely responsible for his own career, not the senior partners in the firm. Accordingly, he must be prepared to advocate for his own interests, so he has time to develop his marketing, client management and other practice skills, as well as his legal knowledge.

It is also important that Michael's mentor and one or more of the other partners commit to being regularly available to answer questions to help Michael carry out his skills development plan. For example, the partners could assist Michael with common strategies to help reduce Mrs. Brillig's calls. There are many things in the practice of law that we do not learn in law school, but only by experience. Stopping to answer Michael's questions may take the partners away from their own billable work, but that is one of the costs of developing a valuable associate. By helping an associate with these types of issues, the partners help the associate be more productive and, in turn, more valuable to clients and profitable for the firm.

Finally, I would encourage Michael and his mentor to spend time—at lunch or other events—sharing and exchanging practical information about client service, marketing, career development, ethics and other issues to help Michael increase his professionalism. When that happens, everyone wins—Michael, his mentor, the firm, their clients and, yes, the legal profession.