I thought it only fair to warn you up front.
Shame parenting managing. Â 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.
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!”
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. Â Seems fair, right? Â 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.
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? Â I’m sorry. Â What was that? Â 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?
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)?
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.
ProfMomEsq 