Next Thing You Know, the Managing Partner Will Take My Blackberry Outside and Shoot It

I'm taking my ball and going home

I thought it only fair to warn you up front.

Shame parenting managing.  It’s all the rage.

Last week, a law firm’s managing partner – without warning or precedent – emailed all of the attorneys in the firm classed as Special Counsel.  (As background, “Special Counsel” is the title given to those of us with too much experience to be associates but who are not otherwise qualified to be partners.  Some are here by choice and some not.)  Attached to the email was a spreadsheet detailing how many hours each Special Counsel billed so far this year, how much of that time ultimately was not billed to a client, and how far ahead of or off “target” each attorney is.  (For those blissfully ignorant of how law firms work, attorneys are required to bill a certain number of hours per year.  The “target” to which I refer is the annual billing requirement.)

Nowhere in this email is a statement about why the spreadsheet was distributed or whether the information is to be treated as confidential (outside this group, anyway).  The email said only Here’s a report showing who’s done what.  I’ve highlighted the slackers in red.  Pay close attention to them.  Okay.  I paraphrased a little there, but it’s close enough.

I Ate Baby Poop

So, I guess we’re resorting to public shaming as a source of inspirational motivation now. Either do your job, or you will be called out in front of your peers as a loser.  Awesome.  I so enjoyed that in high school, especially because it didn’t harm my self-esteem or self-confidence or desire to even go to school.  Oh, no, not at all.  (Please insert exasperated eye-roll here.)

I have so many problems with this as a management decision, I barely know where to begin.  Some of my issues are impossible to illustrate without showing you said spreadsheet, which I won’t do (even though no one said I couldn’t).  Instead, I am pointing to the spreadsheet while saying, “Liar! Liar! Pants on fire!”

Do you smell something burning?

For those of you uninitiated into the dark magic that is private law firm practice, let’s talk about what being a private-law-firm lawyer means.  (If you already know – or think you know – just skip right down to the comment section to tell me I’m wrong.  You know you’re going to do that anyway.)

In exchange for an annual salary and benefits package, the attorney is expected to produce a certain number of billable hours (which translates into a certain level of income) for the firm.  Seems fair, right?  Well, let’s look a little deeper, shall we?

According to National Association for Law Placement:

… few [starting lawyers’ ] salaries are actually at the national median of $63,000 or the national average of $84,111. Many salaries cluster at the $40,000 to $65,000 range at the lower end and at the $145,000 to $160,000 range at the high end. The mean and median also skew high because NALP collects more salary information from large than small law firms. When the statistics are adjusted to place greater weight on small firm salaries, national average pay is $77,333 for all full-time jobs.

So, let’s imagine that a lawyer agrees to take a job for $80,000 per year in exchange for billing 2,000 hours.  If billing 2,000 hours meant working 2,000 hours, the attorney would be paid an effective hourly wage of $40.00 per hour.  That certainly beats the hell out of minimum wage!  And – hey! – that doesn’t include your benefits package, so let’s pump that annual salary up to $100,000.  Now, you’re making $50 an hour!

Except you’re not.

Only in an attorney’s wildest (or most unethical) dreams does billing 2,000 hours mean working only 2,000 hours, because it is simply not possible for every minute you spent at work to be billable.  The reasons why could be the subject of an entire blog post itself, so I’ll keep it simple.  You will leave your desk to get a cup of coffee/tea/glass of water at least once during the day, which means you will also need to leave your desk to use the restroom at least once during the day.  You’ve lost at least 15 minutes, right there. Heaven help you if you get hungry and the only thing you find in your desk is a bottle of Tums.

No.  Seriously.  Do you smell something burning?

Instead, let’s just do a little math (at which I am horrible, so I’m going to show my work here).  There are 52 weeks in a year.  Each week contains 5 work days.  (52 * 5 = 260)  Businesses generally observe 12 holidays per year, which reduces the number of work days to 248. (260-12 = 248)  You have two weeks of vacation, which you take, because if you don’t, you will staple all the papers down to your supervising partner’s desk, switch out the coffee to decaf without telling anyone, and run screaming from the building while shouting, “I am a covenant running with the land!”  You’ve now further reduced your work days to 238 (248 – (5×2) = 238).

To work 2,000 hours in 238 days requires working a minimum of 8.4033 hours per day. (2,000 / 238= 8.4033)  We already know that you cannot produce 2,000 billable hours just by working 2,000 hours, so you must work more than 2,000 hours within 238 days.  In other words, plan on working at least nine-hour days or 6 days per week, and you better not get sick.  Ever.  You also better have an exceptionally reliable file clerk who takes his job seriously and isn’t just padding his resume for his law school application, or you will spend two (non-billable) hours on a Saturday afternoon searching your four-story office top to bottom to find that motion you need to oppose by Monday morning.

But, I digress.

Let’s assume that you’re a pretty efficient and super healthy lawyer, so you need only work 10.5 hours per day to produce 8.5 billable hours.  This means, you actually work 2,499 hours per year.  (10.5 x 238 = 2,499)  So, you’re really making between $32 and $40, depending on whose version of your comp plan you believe.

How do those $900/month student loan payments taste, now?  I’m sorry.  What was that?  I couldn’t hear you over the choking.

Lawyers do not get paid overtime.  We get paid whatever salary we agree to and work as many hours as it takes to meet our annual billable hours requirements.  Supposedly, this structure encourages efficiency – a human will instinctively work diligently to accomplish as much work in as little time as possible.  If what lawyers did was repetitive, predictable, formulaic work, that supposition might prove fact.  But, a lawyer’s work is often complex and rife with variables (many of which cannot be accounted for) if for no other reason than the people involved in and necessary to accomplishing the work – the clients, opposing counsel, mediators, arbitrators, judges – are human beings.  (No, it’s true.  I know, I know.  I’ve heard that one, too.)  Efficiency requires cooperation – in this context, among people who are adverse to one another or have divergent interests.  Oh, the horror!  Also, the system actually rewards inefficiency.  Why should I perform research in an hour that used to take me two hours?  Sure, I get the research done faster, which gets me onto the next item on my to-do list, but I just robbed myself (and the firm) of a billable hour.

In fact, the system almost demands inefficiency. Not all the time an attorney spends working toward a client’s goal is billable.  Sometimes you must do administrative work – not billable.  Sometimes a project takes longer than seems reasonable to bill the client (even if that’s actually how long it took) – not billable.  Sometimes, a client will call and ask you a “quick” question, which you answer because it’s good business sense to keep your clients happy – but not billable (and almost never “quick”).  Sometimes, you’re working on a motion, get interrupted by a phone call, during which you get an email, which reminds you of something else you were supposed to do, but none of which you actually remember to write down on your timesheet – thus, not billable (or billed, anyway).

These concepts are not new to law firm management; thus, the birth of “bonuses.”  Attorneys who bill more than their annual requirement are financially awarded with a bonus.  Size of bonus varies wildly from firm to firm, but I think it’s fair to say that you’re looking at something in the neighborhood of $5,000 – $20,000, depending on a variety of factors. I imagine the thinking here was that if the firm set a target higher than the minimum, that came with a greater reward, attorneys would try to reach the higher target (obtaining the greater reward), and if someone fell short – well, it wouldn’t be short of the minimum.  Win-win!

Look, money is nice.  I like money.  It pays bills.  It pays for fun things, like vacations (as in the one I’ll send my spouse and children on so I feel less guilty about being at work all the time).  But, this “motivational tool” misses the point, doesn’t it?  If I’m already killing myself to meet the minimum requirement just to keep my job, why dangle $5,000 in front of me to bring me back to life and kill me again?

What's that ticking sound?

Also, not every billable hour is created equal.  The attorneys in a firm may all bill at different hourly rates, depending on experience, practice area, client base or geographic region.  For example, the Special Counsels in my firm have hourly rates that range between $170 and $350.  Thus, one of my problems with the lying-liar spreadsheet – it focuses on only the number of hours each lawyer billed.  But, several of the attorneys who billed the most hours actually made the firm significantly less money.  Why are we devaluing the work of more profitable attorneys and over-valuing the less profitable work of others?

What we’re doing here doesn’t make any sense.  I get that a law firm must be profitable; if it’s not, it doesn’t exist. But, if the people who generate the work that creates profit must dedicate nearly one-half of their waking lives to the enterprise, they need not only extrinsic motivation (like money, positive acknowledgement, constructive feedback) but intrinsic motivation as well.  They need to love their work and if not love, at least respect the people with and for whom they do it.

(Oh, here, you can check my math on the “nearly one-half” thing:  365 x 24 = 8,760 (number of hours in a year).  365 x 8 = 2,920 (number of hours you (should) sleep).  8,760 – 2,920 = 5,840 (number of hours you are awake in a year).  2,499 / 5,840 = .4279 (number of hours you are awake divided by number of hours you must work equals percentage of waking hours spent at work).  Yes, I rounded up a little.  Sue me.)

So, how do you do it?  How do you motivate a group to work according to the demands of the work itself and the expectations of the law firm (which reasonably include being profitable)?

headdesk

I’d argue – quite forcefully – that it’s not by shame, humiliation or public embarrassment.  If you want to demoralize someone, those are all very effective means of accomplishing that goal.  But, you don’t have to be a rocket scientist to understand  that demoralized people aren’t very productive.  A person shamed by someone she doesn’t already have great affection or admiration for likely responds by withdrawal or by actively building negative consensus about the person who shamed her.  A person shamed by someone whom she loves or respects is likely to be heartbroken and may also seek to discredit the person doing the shaming.

Do you want your law firm’s profitability determined by a bunch of withdrawn and heartbroken people, some of whom may be actively spreading the message that you suck?  That would not make me sleep well at night.

You also don’t motivate people to contribute their best efforts by creating evaluative benchmarks that are obviously inequitable.  You cannot value a $350 hour the same as a $175 hour.  You can’t value 1,900 hours billed at $200 per hour the same for Attorney A and Attorney B if Attorney A collected payment on all 1,900 hours and Attorney B collected only 85% of what was billed. You must account for the disparate difficulty in producing an hour of billable work between – say  — a construction defect attorney who attends depositions five days per week and an appellate law attorney who must spend hours combing through a trial record to prepare an appeal.  And, you can’t ignore results – attorneys whose billable time achieves or realizes a client goal has a different value to the firm than time spent otherwise.

I think Stephen Covey (author of the 7 Habits of Highly Successful People) hit the nail on the head when he wrote about the need for organizational management to stop focusing on employees as “things” that perform tasks and instead as actual human beings who not only perform work but bring knowledge, creativity, inspiration and passion to the table.

… Because many in positions of authority do not see the true worth and potential of their people and do not possess a complete, accurate understanding of human nature, they manage people as they do things. This lack of understanding prevents them from tapping into the highest motivations, talents, and genius of people. [¶] What happens when you treat people like things today? It insults and alienates them, depersonalizes work, and creates low-trust, unionized, litigious cultures. People stop believing that leadership can become a choice. … Simply put — at its most elemental and practical level — leadership is communicating to people their worth and potential so clearly that they come to see it in themselves. Think about this definition. Isn’t this the essence of the kind of leadership that influences and truly endures? – Stephen Covey, excerpted from The 8th Habit.

Attorneys need constructive criticism.  If you’re not getting your job done, you deserve to hear about it.  (And, by “deserve” I don’t mean you should get what’s coming to you – although that may be true at times.  I mean you are owed that much by the firm for the work you did do.)  To be constructive, however, the criticism must be delivered so that it is not only received but also digested. Were I Queen of the World, this would mean that criticism would be individually tailored and far more holistic than it is now.  Instead of calling anyone out or myopically (and arbitrarily) focusing on production in terms of hours billed, I’d deliver the criticism in a one-on-one format, invest the attorney in the conversation by asking for self-evaluative feedback, and focus more broadly on the attorney’s value to the firm in terms of profitability, production, results, and culture.  In other words, fuel an attorney’s passion; don’t eclipse it or squelch it.

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32 comments on “Next Thing You Know, the Managing Partner Will Take My Blackberry Outside and Shoot It

  1. Leo says:

    Well, I know plenty of people who keep billing while they get their water and use the restroom. Otherwise, I won’t tell you you’re wrong!

    • ProfMomEsq says:

      {giggle} Don’t I know it! Disgustingly, Blackberry and Apple may have legitimized the bathroom thing. I … I just … I can’t even talk about it. Reason #356 I’m happier working at home.

  2. Heather says:

    Shame managing is horrible and you’re absolutely correct–it isn’t going to make people work harder. All it’s going to do is lower self-confidence and -esteem, and that actually makes people want to do less. Eric and I were just talking about how some companies (coughHIScough) need to invest in a psychologist who can tell the higher-ups whether or not their managing tactics will have the desired effect.

  3. Helicopter mom (in a better mood) says:

    How funny you draft and post this blog, QUEEN OF THE WORLD, as I was just feeling a bit alienated, detached, in a terrible mood, wondering, why is my kid only sleeping 9 hours a night? Things like that you know. I think I got the answer – his mom feels like a thing, she is horribly overworked and pays almost no attention to the little guy. Brilliant. Thank you QOTW.

    • ProfMomEsq says:

      I think you just publicly nominated me for Queen of the World. Right? I accept! I voted. I win! I AM QUEEN OF THE WORLD! Woot!

      You are not a thing, and I heart your face. As QOTW, I say you leave work early today. It’ll be there tomorrow, when you get back. Bill it to TX-STFU. 😉

  4. this. makes. so. much. sense. !!!!!!!!!!!!!!!!!!!!!!! I AGREE!!!

    Too bad I can’t bill for the time I took reading this. lol. Hell, I need the hours. 🙂

    • ProfMomEsq says:

      Aw, man. I would’ve had a SPECTACULAR billing day if I could’ve billed for the time I spent research and writing it. Marketing? Professional Development? I will *find* a way! 😉

  5. blogginglily says:

    I worked as a consulting engineer for the first three years of my “career”. Same dynamic. As an entry level engineer I needed to be 92% billable, I believe. That factored in my vacation, admin hours (for timesheets, expense reports, etc).

    You seem. . . angry.

    • ProfMomEsq says:

      Do I? Shoot. I must’ve been the math. Math makes me cranky.

      Actually, I was angry when I started this, but I ended feeling only frustrated.

      I don’t need constant affirmation to work hard, but I know I (and other lawyers on the list) accomplished some really great results for clients this year, and when the only feedback we get about that is, essentially, “you didn’t charge enough” for what you did, it makes me want to kick a puppy. Not hard. Just enough to knock him off the couch while he’s sleeping. But, then I’d pick him back up, ruffle his ears and put him back in the nice warm spot where he was.

      Was working on a percentage basis manageable? Did you think it was “fair”? (Whatever the hell that means.)

      • blogginglily says:

        it was manageable for me. . . as an entry level engineer I wasn’t expected to do any sort of sales or business development, and there was no reporting really required. I was cheap relatively speaking so I got used on every job. Everything I did was billable. I think it got harder the higher you climbed, but I left after three years.

        • ProfMomEsq says:

          It sounds to me like the percentage of time system makes so much more sense, for a lot of reasons. It should get “harder” when you take on marketing responsibilities (especially if you want a piece of the ownership), but that should come when you’ve already gained some mastery of the work.

  6. I know you’re serious, because MATH.

    I think it’s a fundamental flaw in the “billable hours” system – I have friends who work as occupational therapists talk about needing to be over 100% billable, or do driving & paperwork for free at home.

    And that’s neglecting the crappy shit-rolls-downhill management style. What the hell. Didn’t we all outgrow that when we left school?

    Vomit. And sympathy.

    • ProfMomEsq says:

      Hell, yeah, serious! My brain HURT. 🙂

      You are my resident math expert (surprise!), so I pose this to you: How do you fairly compare the performance of Lawyer A (who bills at $200/hr) to Lawyer B (who bills at $350/hr) using a metric other than (or in addition) to number of hours billed? Please answer using as few Greek symbols as possible. I have only two Advil left.

      (Bee tee dubs, how are YOU feeling?)

      • The napkin-math way would be to “normalize” the hours – assuming that the $200/hr lawyer is doing less higher-order-thinking work, then you could say that it’s only fair that his or her 1.75 hours are worth 1 hour of the $350/hr lawyer. You could do this for a whole firm by taking the highest paid lawyer, and making a bunch of fractions.

        Ex: The highest paid makes $400/hr. Then the lawyer who makes $350/hr needs to work 400/350, or 1.14 hours (about 69 minutes) to be equivalent. The lawyer who makes $300/hr needs to work 400/300, or 1.33 hours (about 80 minutes) to be equivalent. The lawyer who makes $200/hr needs to work 400/200 or 2 hours to be equivalent. This way we’re making everybody’s hours into the same “units”.

        You could set up a spreadsheet to do all the conversions automatically.

        Cons: is the $400/hr person really working TWICE as hard as the $200? What a lot of teaching & engineering pay scales do is add in factors for education / part-time vs. full time / years with the firm, that lets the $200 person’s hours “count” for a little bit more. So instead of working 2 hours to get the same credit as the $400 person, with a higher degree & forgiveness for being part-time, the $200 person could work 1.75 or so.

        (If you wanted, I could build some sort of example XL – wouldn’t take long.)

        **************************************
        Oh, I’m fine – whiny, but fine. Weird stomach scare – but the CT scans and U/S indicate something fuzzy, like IBS. BLECH. That + migraines are conspiring to make me one of those weird restricted-diet yuppie people. I mean, I’m drinking TEA for God’s sake. And I roasted fresh broccoli for dinner. The menfolk are quite confused.

        • ProfMomEsq says:

          Okay – so that corrects for the $/hr equivalency, but doesn’t it create an inequity in volume of work performed or production? For example, assume each lawyer must generate $100,000 in profit for the firm. Profit is realized after deducting attorney’s total cost and attorney’s share of overhead. Assume attorney’s total cost is $150,000 and overhead is $150,000. So, the attorney has to bill enough hours to generate $400,000 in billing. The $400/hour attorney needs to bill 1,000 hours. The $200/hour attorney, 2,000 hours. Assume that the hourly rate discrepancy is not experiential but fixed variables — geography and practice area. (For example, and attorney doing IP work in San Francisco serves a market that tolerates higher per-hour charges than, say, a smaller urban area attorney that does insurance defense work, where the insurer-client pretty much dictates your rates.)

          (BTW, answer this only if it is interesting to you to think about. I’m not meaning to make you do actual work here. This is just wayyyyyyyyy beyond my math, even when it involves only clicking the sigma symbol in Excel.) 🙂

          ~~~~~~~~~~
          Tea and roasted broccoli doesn’t sound all that bad, actually. Maybe not together … Try Citrucel. 😉

          • Hmmm… That’s the problem with billable hours / the flip fraction of the ones that I built. As long as every person is expected to make the same profit, the cheaper person will always have to work more hours. J’s point above would make things more equitable – if each person is expected to make 90% of their 50 hour work-week billable, then each person is working the same number of hours. But then the cheaper person will be generating half of the profit of the expensive person.

            It looks like this is a hot topic in the world of google-ness. ACC talks about the value challenge… (http://www.acc.com/valuechallenge/index.cfm), where it looks like within the field is a discussion of a move to some sort of value-added metric. The white paper on “guide to value-based billing” is mathematically valid, and doesn’t involve any greek letters at all.

            (answer to BTW – girl, I LIVE for this shit. Seriously. Geeking out here.)

  7. Elizabeth says:

    I had no idea how lawyers got paid. Very interesting! I guess I just thought lawyers worked a regular 40 hour week and some OT when you had a case. I know that lawyering requires so much research, but didn’t realize that sometimes you don’t get paid for it. Crazy!

    The shame management brings to mind the “pay for performance” model that is being pushed on educators. There are so many factors that we have no control of in regards students. It is not fair to say that we are not doing a good job when we have students in our classes who don’t eat regularly. What about those of us who choose to work with students with learning disabilities? There is no way to compete score-wise with those who teach the AP/honors classes.There are plans to publish the scores in public media. Parents will see the scores and think I am a horrible teacher. Many times they will put the best teachers with the “lower” students because they do a good job.

    People should be treated like people and not things. It would make the world so much nicer.

    • ProfMomEsq says:

      I think the “pay for performance” situation is a great analogy, so you know my feeling (and I share yours)!

      How do you motivate strong teachers to work with the students who have the greatest learning challenges if they know they are fucked economically punishing themselves by taking that role? The attorney equivalent is: how do you motivate a lawyer who is an excellent researcher/writer to stay in that role if she can never possibly work enough hours to bill enough hours to even make target let alone make a bonus?

      In the end, those jobs – which are of tremendous importance – become “punishment” jobs where schools and firms force the weakest links. It’s bad for business in so, so many ways.

      From the management side of things, shaming will inevitably backfire. The teachers at the bottom – especially because of the reasons you describe – will just give up. Why put up with the grief and aggravation? If I’m a teacher at the top, the first thing I’m gonna do is start demanding shit – more money, more resources, better classroom assignment, etc. And, if a principal says no – well, hold onto your tuchas, Mister/Lady, because the WHOLE PTA KNOWS now that you said no to the school’s BEST TEACHER! And, if I’m a teacher in the middle, I’m more or less happy to stay there, unnoticed, so I can just do the thing I love to do.

      I couldn’t agree with what you said last more — love people; use things – not the other way around.

  8. jillsmo says:

    Mmmmmmm. Yes. I understood some of those words.

  9. […] really.  I need you to quantify the coolness, so I don’t feel bad that this isn’t billable. Share this:TwitterFacebookEmailPrintTumblrPinterestLike this:LikeBe the first to like this. This […]

  10. Robin Edgar says:

    “Do you want your law firm’s profitability determined by a bunch of withdrawn and heartbroken people, some of whom may be actively spreading the message that you suck?”

    Good question. . .

    But allow me to point out that it is not just the disgruntled employees of “less than perfect” law firms who may be actively spreading the message that your law firm sucks.

    Heartbroken or otherwise “less than satisfied” clients can and do do that as well as people who are on the receiving end of legal intimidation or other shoddy legal work done by certain law firms.

    • ProfMomEsq says:

      That’s actually an important observation, Robin. Thank you. I believe the old adage is that if you do a good job, your client will tell three people; do a bad job and the client will tell 11. It is also true that the primary source of business for lawyers – no matter the size of the firm in which they practice – is word-of-mouth.

      The traditional law-firm model of doing business is not client-focused at all. The reasons why are so many, they’d make another blog post, which I may yet tackle. In the meantime, thank you for sharing your thoughts.

  11. strawczy says:

    I came here for the treadmill running post, stayed for this insightful criticism. As a litigator in another jurisdiction, and one who’s in a long discussion with my corporate solicitor peers about billable hour targets as the basis for compensation models, I’ve done the same math exercise you’ve done (although in the context of comparing the work done by litigators and transaction lawyers). It’s depressing and full of moral hazard, as you correctly noted. Also, if my management engaged in the sort of public shaming yours did, I’d be out the door even if I wasn’t on the list.

    • ProfMomEsq says:

      Treadmill running … working in a law firm: six of one, half-dozen of another most days. 😉

      Our firm struggles with the transactional attorneys versus litigation attorneys argument as well. The litigators have a higher annual billing requirement than the transaction team, and I think this is probably “fair” on two scores: (1) the transactional team doesn’t really get the “windshield” time the litigators get (or the endless, brainless depositions); and (2) the transaction attorneys (usually) bill at significantly higher hourly rates. I’m curious what your take on this might be. Do you think that’s equitable?

      As for the public shaming – it would be a lie to say I didn’t have a gut-check moment of screw this place. But the reality here (and as you point out) is that poor management decisions aren’t unique to the firm where I work. Plus, I genuinely like most of the people with whom I work. Now that I’ve had an opportunity to reflect on what happened and talk about it internally, I also don’t think it was purposely calculated to “shame” but was (perhaps genuinely) intended to motivate. My frustration is that the “shame” side the equation wasn’t patent. Just like good lawyers don’t necessarily (or even typically) make good law professors, they aren’t natural managers either. Quite the opposite, in fact. And, you really need a strong people manager when you’re working with a mostly talented, bright, motivated and … let’s keep it real here … self-interested group of people as your profit center.

It's boring when I do all the talking around here. Speak now, while you can get a word in edgewise.

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