HOW TO DEAL WITH UNDERPERFORMING LAWYERS

The challenges of a shrinking and intensifying competitive legal marketplace demand that firms address under-performing lawyers quickly and decisively. Business development coaching has increasingly been adopted to help these lawyers get back on track. But, is the traditional model of business development coaching effective? And, if not, what's missing?

Others often perceive lawyers that struggle to build a client base as suffering from time management or motivational issues. As such, business development coaching services tend to focus on building better disciplines in the lawyer. While these issues may contribute to the problem, more often than not poor business development results have their roots in the makeup of the lawyer's practice and the conditions in the firm. I call these structural issues because they create impediments to building a practice that are so familiar that most lawyers fail to recognize them.

Diagnosing the cause of a lawyer's under-performance can be a challenge. The attorney's practice area; their target clients; the breadth or depth of an attorney's knowledge; the firm culture and compensation system; the maturity of the attorney's practice; the lawyer's matter management skills; their billing rates and competitive position; and the lawyer's professional relationships are so varied and dynamic that no two lawyer’s practices are truly similar. 

There is a pervasive belief in law firms that lawyers are the best ones to understand their own business development challenges. As the thinking goes, no one understands his or her practice and clients as well as he or she does, so surely he or she knows what needs to be done to turn around a struggling practice.  It's not true. But too often they are left to fend for themselves. 

Lawyers struggle to bring in their own clients for a variety of reason. These reasons include a lack of marketing knowledge and skills; client development challenges; firm culture or compensation issues; competitive positioning problems, and challenges associated with the structure and focus of their practice. The idea that focusing on a lawyer's motivation, attitudes or time management without first determining whether the lawyer is burdened by structural issues in their practice is neither fair to the lawyer nor in the best interests of the firm.

To illustrate what I mean by 'structural issues', a senior partner came to me after having been unsuccessful working with three other business development coaches. On our introductory call, I reviewed his bio and quickly realized his problem. He listed experience in eight unrelated practice areas, published legal and business topics on an even broader variety of subjects, and featured as his most significant matters work that was more than 15 years old. His fear of missing out on potential work (by listing eight different practice areas in which he had some experience) confused his prospective clients about the area of the law in which he was truly an expert. No amount of nagging and cajoling would fix this structural issue in his practice.

A second example comes from a lawyer working in a small, 12 lawyer 'full service' law firm whose practice area required significant bench strength to effectively leverage the types and size of matters he said he handled. He wasn't getting this type of work because, surprise, platform matters to clients.

Practice Development or Business Development Coaching?

In just about every lawyer I have worked with, low motivation and poor time management were rarely contributing factors. Their challenges, which these lawyers didn't understand at the outset, related to practice focus, practice maturity issues or practice transition challenges. These are all practice development issues. The traditional coaching model typically does not include a methodical process to evaluate the myriad of challenges that work against the lawyer's best efforts. But practice development coaching does.

To ensure the punishment fits the crime, law firms can develop a formal process to diagnose the under-performance of lawyers and pinpoint whether the low numbers result from behavioral or structural causes. Practice diagnostics can tease out the factors that inhibit growth and prioritize which issues to address for the greatest and fastest impact.  A good system should assess the firm’s compensation system, the financial and billing data for the lawyer and their practice group, the lawyer's practice specialty areas, the market opportunities for the practice, their client relationships, and their past business development and marketing activities. This examination paints a more accurate picture of the challenges and opportunities in a lawyer’s practice. It puts aside the assumptions about motivation and time management and leaves them to the actual coaching process where those issues can be more accurately analyzed and addressed.

Practice analysis is an extra step in dealing with under-performing lawyers but it will ensure the best use of the firm's investment by directing resources to the true challenges and obstacles facing the lawyer. Practice analysis helps the attorney identify a coherent strategy and a working plan to move forward. What's more, it helps the firm better understand the challenges that lawyer faces and set more realistic expectations for how quickly that lawyer will be able to turn around their practice. As any seasoned sales professional will tell you, if the product is flawed the sales will be too.

As an industry, we focus too heavily on promotion and not enough on the packaging and positioning of our attorneys' individual practices- that is to say, we do not focus enough on practice development. Practice development analysis can help identify the structural challenges the lawyer faces. Only then can you begin to ascertain whether behavior, attitude or time management problems are also affecting the lawyer.

DEVELOPING GOOD BUSINESS DEVELOPMENT HABITS BY PRACTICING GRATITUDE

One of the most difficult aspects of business development coaching is building good habits in others. The challenges are many. In addition to the fact that a habit is uniquely individual and personal, the coach must overcome daily distractions their charge’s face such as low motivation to change, lack of applicable skills or training in business development techniques and myriad of other challenges. Even the most simple and worthwhile habit- one for which motivation to adapt is already high for the person- can be a habit difficult to enforce in others. So, business development coaches must find ways to lower the obstacles to change and increase their motivation.

One way to do this is by practicing gratitude as part of the business development coaching process. Practicing gratitude has been shown to have numerous benefits. According to researchers at Harvard Medical School, “gratitude helps people feel more positive emotions, relish good experiences, improve their health, deal with adversity, and build strong relationships,”

A psychologist from the University of Birmingham noted in 2013 that the “list of potential benefits is almost endless: fewer intellectual biases, more effective learning strategies, more helpfulness towards others, raised self-confidence, better work attitude, strengthened resiliency, less physical pain, improved health, and longevity.”

An attitude of gratitude is career changing.

One of the more difficult habits to instill, but easily one of the most critical habits to develop, is the habit of reaching out to others. This process requires the lawyer to identify prospects, research the target, develop an outreach strategy, make the call and manage the conversation. To the introverted among us, this can be difficult.

A proven way to reap the benefits of gratitude therapy is through 'journaling'. In clinical settings, patients are asked to write down three things that happened that day for which the patient is grateful. The significance of the event is not important. It is only important that the patient spends the time thinking through their day to identify specific events, activities, or interactions for which they feel some degree of gratitude. Finding three points of gratitude each day can quickly build momentum for a process and with it the habits of the process. Plus, after consistently doing this exercise for 30 days, patients report all the various and significant benefits of an attitude of gratitude.  

Developing new business development habits also benefit from practicing gratitude. Forcing oneself to find meaningful developments in the process changes the mind’s perspective on the process. Lawyers are trained and educated to find the problems and loop holes in situations and that mindset is rarely constrained to their legal work. The approach to new business processes is often to litigate the efficacy of the process using a Socratic inquiry to help them more fully understand the issue or process. This can create an adversarial, pessimistic mindset for the lawyer, especially in situations in which their comfort level was low to begin with.

For those struggling to develop good business development habits, gratitude can be an important tool to address the mental and emotional obstacles some lawyers face. To reap the technique’s effectiveness, however, it must be practiced consistently as part of business development skills development process. By infusing positives into a process where negatives are typically cataloged, the mind begins to rewire itself and changes the mindset allowing better conditions for habits to develop.

Appreciation for an activity can be simple, discrete and insignificant, depending upon the lawyer’s experience. They need only be recognition that is positive. The point is that actively thinking through each specific step of the process to identify the specific aspects for which the lawyer can be grateful, builds a positive and optimistic perspective of that activity and contributes to establishing it as a habit.

Are Lawyers Blind to Change?

The Altman Weil 2016 Law Firms in Transition survey reported that 59% of firm leaders expressed an unwillingness to change because clients do not require it, and 56% said they are not motivated economically to implement any changes. 

And in a survey at the recent Managing Partner Forum conference, 66% of attendees said that law firm strategy has not changed at all, despite the recognition that disruptive change is occurring in the industry.

What would Darwin say?! 

It's hard to muster the troops to change when you don't have clients demanding change. After all, we're a client-centric industry responsive to our clients' needs. Surely, if they needed us to change they'd tell us, right? Our clients love us!

But it may be just because they love us that they don't demand change. Change is a difficult and complicated conversation. It's often heard as a request for discounts. And most clients probably don't think they need to have that conversation with outside counsel. "They are big boys. They know what's going on. I shouldn't need to tell them".

Furthermore, clients are likely to experiment first with alternative providers. It's prudent on their part to test the waters before committing to a new direction. Why upset a valued provider/partner before you're sure an alternative is better?

Think of the client's you've lost over the years. Unless you screwed up big time, the exit was most likely gradual. In fact, most transitions to new providers are barely noticeable. The firm frequently doesn't 'catch on' until it is too late.

Today, law firms compete with a lot more competitors than they did even a decade ago. And the competition is no longer only human. Yet, most of us haven't changed how we monitor client retention or even our attitudes about client loyalty. History is not loyalty. Loyalty doesn't trump earnings.

Let's be clear. Client's are driven by their bottom line. Business is designed to find the lowest cost, most efficient inputs. If your inputs can be replaced by more efficient, less costly providers, you will be replaced. If you aren't continuously adding better value, someone else (or something else) will. And more than likely, your clients won't tell you about their plans. They'll assume you're smart enough to figure it out on your own.

ARE YOU ACCOUNTABLE FOR YOUR ACCOUNTABILITY MEASURES?

I recently put in a proposal for business development training and coaching to a large AmLaw 100 law firm. As part of the proposal, the firm asked how I would set up a system of accountability for participants in the program. Building accountability into a program is difficult. You can neither assume it will happen nor demand it. Accountability measures require buy in and commitment from firm leadership but they also require sensitivity by project leaders to the challenges each lawyer will face in contributing to the project. 

Firm leadership often look to accountability measures as a means of controlling the project to ensure its success. But success comes from enthusiastic participation in a program, not from metrics. Accountability measures should be viewed as a tool for the development of individuals; an early warning system to help identify when people need help accomplishing their part of the project. Too often, accountability measures can derail the success of a program if they are not handled correctly. 

Be Careful Who You Label as Not Accountable

In the back rooms of your strategic planning meetings, everyone knows who is accountable and who isn't. Everyone knows who gets things done and who never seems to accomplish their part of projects. Accountability is not only dynamic and subjective, it is influenced by a host of conditions, many of which are out of the control of the person. Stay objective and give the people you target for your 'accountability' the benefit of the doubt. Seek to understand first. 

Accountability is a Net, Not a Spear. Building accountability into a program's process should be designed so that everyone has the same standards for accomplishing their objectives. It should not be a process to weed out and discipline those who are not doing their part. Instead, processes should be biased toward helping participants resolve the issues that are keeping them from accomplishing their parts. Use a rising tide of accountability to raise all boats.

Take Small Steps. 

Accountability is a habit that is built over time. With busy schedules, client demands and work-life balance, setting objectives and activities which are too aggressive or sweeping in their scope only serve to frustrate those involved. Lawyers are skeptical of growth programs and change initiatives, anyway. Program participants frequently spend as much time and energy passively evaluating the problems in the program as they do actively working the program. So make working the program easy. 

Deconstruct what you are trying to accomplish and set objectives that have short time frames and require minimal effort to accomplish. Quick and easy activities are more likely to get done and builds confidence in the process. Monitor the activities closely and set a schedule of small, frequent tasks to build momentum. Small steps build durable habits.

Set Clear Objectives

Clear objectives are an absolute necessity. Objectives should be set by the person who will be held accountable for them. Use the SMART goals formula to design objectives which are clear, achievable and measurable. Too often, goals are grandiose and sweeping. They are nearly impossible to achieve let alone make it clear the steps required to achieve the goal. Think micro objectives. Small is better. 

Make it Meaningful

Participants should clearly understand how the activities relate to the firm's goals. Take time to draw clear lines between the activities and what the firm is trying to accomplish. If the lines are blurry or the activity only indirectly contributes to the firm's mission, change the activity. Nothing frustrates people faster than busy work. Even if you see the link, it is critical that the participant sees the contribution they are making. People need meaningful work and a feeling that they are contributing to the greater good of the firm, especially in the beginning. Start with activities that link closely to the firm's mission. 

Listen for Challenges

Communicate often and listen for challenges that are developing. Check in on a regular basis and actively listen for the obstacles and challenges that the lawyer faces in accomplishing their goals. Keep an open mind and don't prejudge the lawyer's efforts. Brainstorm how to overcome those challenges and bring others in to help in the process. If necessary, pick smaller activities which contribute to the goal but are not necessarily part of the current obstacle. Build momentum sideways if you have to. 

Track Progress and Share Successes

Use metrics to track progress. When setting objectives, work with the person to determine the metrics which will demonstrate progress. Keep these metrics simple and achievable. Like accountability, the simpler and more achievable the metrics are the more it builds confidence in the process. Don't worry too much about actual results in the beginning. Tracking activity is fine. Activity will lead to results. Celebrate small wins. Sharing leads to results. 

Focusing on achieving results too early in the process can create skepticism and frustration. It takes time for new initiatives to gain traction so don't demand results too quickly. Lots of people actively working on a project is a powerful result by itself.

In large organizations struggling to hold people accountable across dispersed offices, building a culture of accountability takes time and an intentional, incremental effort. Accountability measures are a vehicle to construct contributions to the firm. Build a culture of accountability incrementally, monitor and adjust frequently and listen to and praise people often. Before you know it, you'll have more action taken by more people on the meaningful initiatives that will move the firm forward. 

About the Author

Eric Dewey, MBA, is Managing Principal of Group Dewey Consulting and focuses his practice on business development training and coaching, strategy, opportunities research and lateral growth support services. He can be reached at eric@groupdewey.com or by calling his cell at 502-693-4731.

Avoid ‘Seen it Before Thinking’

Actors live by the 'call back'. They know they've auditioned well when they get the call back. Lawyers get call backs too. Whether or not you get a call back depends on how well you auditioned- it depends on how well you conduct your first meeting. 

Many first meetings with prospective clients fail because the lawyer doesn’t take the time to learn about the client's particular issue. They assume the issue is like others they have handled and proceed directly to discussing a proposed solution and why the firm or the attorney is best suited to solve their problem. After all, the client has sought you out, so it’s easy to think that you have the answers to their problems.

But ‘seen it before’ thinking can cause you to miss important details, or misjudge how the client needs the work to be done or the level of expertise they require. Keep an open mind and assume you don’t know the answer until you're sure you know the client. 

In every proposal there are ‘deliverables’ or solutions and there is the ‘approach’ to the work- or how the work will be done. You know what the deliverable needs to be. You’ve delivered this solution before. But your approach- how you get to the deliverable- may need to be entirely different. That’s what the first meeting does: it gives you the necessary insight into how to approach the problem to find the right solution for that particular client. Make sure you are listening. Don't stop listening once you know 'what needs to be done'. You could miss the most important piece of information the client has shared with you.  

Evaluating Outsourcing and Insourcing Marketing Support Options

Many firms debate the merits of hiring a marketing professional versus outsourcing marketing support to a marketing consultancy. So, I thought it might be helpful to outline the benefits and challenges of that decision. Here then, is a list of the considerations firms may want to evaluate in their analysis.

Benefits of Outsourcing (Marketing Consultant or Consultancy)

·        Reduced Employee Overhead- External resources can save firms as much as 40% in employee overhead costs including benefits, training and miscellaneous employee expenses.

·        Lower Startup Costs- External resources allow firms to avoid the costly investment of starting up a new functional area in the firm (office space, supplies, subscriptions, special software, etc.).

·        Specialized Skills- Consultants tend to have more specialized skills and experience in the most critical areas of legal marketing operations.

·        Objective Perspective- Consultants bring a fresh perspective uninhibited by internal processes or politics.

·        Best Practices- Consultants bring best practices derived from broad exposure to a variety of law firms and marketing challenges.

·        Robust Network- consultants have more robust network of connections. As problem solvers, they must maintain a deep network of resources that they can bring to any challenge.

·        Industry Experience- Deep experience in legal marketing and business development can save the firm in avoiding costly mistakes and trial and error experimentation.

·        Smarter Startup- External resources allow firms to evaluate their needs with little investment in the process leading to better long term decisions and more targeted recruiting of the talent needs.

·        Flexibility- Consultants are there when you need them and not there when you don’t need them. This helps firms avoid paying for non-productive time.

·        Inflexibility- In house resources which turn out to be a bad fit can take months to rectify and can leave lasting impressions on the Partnership, both internally and externally.

·        Training- In-house resources sometimes lack the experience in the industry and working within a partnership requiring training and support resources which are frequently not available in house.

Challenges of Outsourcing

·        Sense of Control- Using external resources may feel like there is less control over the resource and process. This is rarely the case as good consulting organizations typically commit to a defined process and specific deliverables.

·        Under Utilization- For busy attorneys, resources which are out of sight, tend to be out of mind. It is a very challenge which needs to be constantly addressed inside the firm is an outside resource is used.

·        Appearance of Higher Costs- Added employee and resource costs are difficult to review. New positions are mixed in with existing positions and the additional resources are not reported separately. The consultant’s invoice, however, can be reviewed in total every month. Comparison of the two resources requires expert knowledge and the adoption of certain assumptions. In fact, costs are typically much lower through improved efficiency and effectiveness.

·        Not Resident- Not having someone in the office can be a real challenge for some. For others, it’s a blessing.

·        Cultural Awareness- In-house positions tend to learn the culture of the firm more intimately. They see the behaviors and activities on a daily basis which define a firm’s culture in ‘real terms’.

Recommendation

Each law firm needs to decide what’s best for the partnership. However, a cautious approach dictates the use of external expertise. Unless a firm has a thorough and decisive understanding of its marketing and business development needs, law firms looking to build marketing resources should use outside consultants to help the firm determine the scope and quality of its needs and the capabilities and experience level of its first in-house marketing resource.