On being busy, via the Eagles

January 2016

I've waited so long for you to change your way of livin'

Now I realise that you never will

'Cause you were just too busy being fabulous

The Eagles – Busy Being Fabulous[1]

What was the response last time you asked a lawyer how they were doing at work? Did they pull a bit of a face, conveying sufferance but tinged with pride, and say “busy”? Yes, I thought so. Being busy is what lawyers are all about. But is this good?

In my column last month, I mentioned a report on the well-being of the legal profession prepared by the legal consultancy LBC Wise Counsel. In a follow up post to the report on its website, LBC’s thought-provoking Chief Executive Paul Gilbert observes that many lawyers are under pressure from their clients to ‘do more with less’ – to be cheaper, and yet quicker; to manage extra responsibilities like compliance, internal audit and HR without increasing staffing. To successfully do more with less, General Counsels must prioritise training, policy and process; however, lawyers generally undervalue process, and have “insufficient expertise or even strategic insight to develop process/ policy/ training solutions”.

Ultimately, Mr. Gilbert argues lawyers choose to be busy by deciding not to properly define their purpose, that IT is for admin people, that process is “for people without flair” and that measuring things is “for our dull accountant friends”. He asks, “How come you guys work so late and still have a back-log?”

Some of you may be familiar with Marshall Goldsmith’s book What Got You Here Won’t Get You There. It starts with the premise that historic achievements can prevent managers from achieving future successes. For example: junior lawyers in private practice are routinely assessed on their performance against billable targets. Juniors who hit these targets consistently may be rewarded with promotions. But if, once promoted, the lawyer continues to focus only on billable hours, she may be unable to build a standalone book of business. What got her here (sitting in the office, churning out the hours) may not get here there (partnership).

When are lawyers in-house likely to feel accomplished? It’s generally not during day-to-day work, where the business wants its lawyers to record its instructions efficiently, quietly and – above all else – quickly. In fact, the considerable skills of in-house lawyers may only be recognised when they take a blinding catch after the business drops the ball. When this happens, the lawyer gets to be the hero, and the need for change in business practices is masked (because the consequences of poor decision-making are avoided by the lawyer’s last-gasp intervention).

As Paul Gilbert has it, all participants in this scenario are incentivised to maintain the arrangement that resulted in the lawyer’s heroics. Subconsciously or otherwise, the lawyer recognises that he gets the glory only when pulling off a stunning save. Insulated from the consequences of its mistakes, the business has no incentive to adapt, meaning the ball will inevitably get dropped again. So the future success of the legal department – and the future success of the business in managing risk – is impeded by the legal department’s historic achievements.

Harsh? Well, I recall a conversation with a senior in-house lawyer a few months ago where he described his department as being like the engine room (of course!) of a tanker, sitting deep in the hull waiting for directions to come down the pipe. Until directions were received, the department had zero visibility on their future workflow. They just kept on toiling away in the dark.

As I said last month, you can take action today to remedy gaps in your skill set which, once filled, will make you more effective. But first, you must be honest with yourself. If you lead a legal team, and your team is at maximum capacity with no possibility of extra headcount, perhaps it’s time to reconsider the way you do things.

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