Supercharging SuperchargingLawyer LawyerDevelopment Development Through ThroughFeedback Feedback by William D. Henderson by William D. Henderson William D. Henderson is a Professor of Law at theatUniversity of Indiana Maurer School of Law. William D. Henderson is a Professor of Law the University of Indiana Maurer School of Law. He isHe also principal in Lawyer Metrics, a research company that that focuses on lawyer selection and development. is aalso a principal in Lawyer Metrics, a research company focuses on lawyer selection and development.
and is likely a winning strategy development and is likely a winning strategy I am Iaam lawaprofessor. My job to is educate future law professor. Myisjob to educate future development Predictions 1 and1 2and are2closely intertwined, Predictions are closely intertwined, for any law school or law firm seeking to take for any law school or law firm seeking to take lawyers. Experience has shown me that lawyers. Experience has shown me the thatbest the best primarily because the best lawyers nevernever stop stop primarily because the best lawyers market share, we are to see of it in market share, welikely are likely tomore see more of it in way to accelerate the development of legal way to accelerate the development of legal learning and growing. This This is notismy learning and growing. notoriginal my original to come. the years to come. skillsskills is to is provide moremore and better feedback to to the years to provide and better feedback thought — far—from it. Init. theIn1930s, 1940s, thought far from the 1930s, 1940s, my students. my students. 1950s, 1960s, and 1970s, one can 1950s, 1960s, and 1970s, onefind can many find many Drawing uponupon my experience Drawing my experience aseducator an educator 1.) Onas theanleft side of the grid we listed (as a reflexive (for example, daily or weekly househe private practice of law has law school deans and bar discussing law school deans andleaders bar leaders discussing whoand works closely with with law firms andwent studies who works closely law firms and well,” studiesand on the right side of class) “what But feedback isofexpensive. takes time to tothe Internet), holdItchores or surfing System But feedback is expensive. It takes time petitive, a growing number law as that requires lifetime lawa vocation as a vocation that requires lifetime the legal profession, I am willing to wager on the legal profession, I am willing to wager on the grid we identified “things to look at.”2 (My2 deliver intensive feedback. Moreover, feedback 2, which is slow, deliberate, and effortful (for deliver intensive feedback. Moreover, feedback re replicating the sins of law learning. Indeed, the modern law firm learning. Indeed, the modern law came firm came predictions that others might find fanciful twoduring predictions thatfellow others might findand fanciful instructors I are indebted to Jeff Carr, can be emotional labor,labor, as it as is unpleasexample, learning think like atwo lawyer can be difficult emotional it istounpleasmizing on feedback todifficult junior into existence through the associate-partner into existence through the associate-partner or utopian. ortoutopian. General Counsel of FMC Technologies, for antthat toant deliver bad news. Further, defensiveness the first year ofdefensiveness law school). According Kahneto deliver bad news. Further, focus on things bring training model, as the workwork flowed to law training model, asbest the best flowed to law providing us with this very simple “hot wash” a relatively reaction, one to man,reaction, ourso minds naturally is a relatively common so has one has togravitate toward ewards. And inis recent years,common firms with sufficient numbers of specialized firms with sufficient numbers of specialized Prediction No. 1.No. In 1. theInformat.) years to come, greatgreat law law Prediction the years to come, be prepared to marshal factsfacts and examples to primarily 1-type because it System prepared to marshal andthinking, examples to rategic objective ofbemost law lawyers who who couldcould workwork together as a as a business lawyers together schools will be by two First,Figure the the 1 business schools willjudged be judged bycriteria: two criteria: First, showfirm thatrevthe is objective, fair, and conserves energy, albeit show thatfeedback the feedback is objective, fair, andthe rigor of System 2 is o increase overall team.team. A lawAfirm’s training model served to lock law firm’s training model served to lock acquisition of complex and relevant domain acquisition of complex and relevant domain accurate. necessary for solving difficult problems. accurate. ny partner-associate relationWHAT WENT WELL THINGS TO LOOK AT in its current and future client base, as the in its current and future client base, as the knowledge in law and allied fields, and second, knowledge in law and allied fields, and second, often limited to work flow. If growth enabled the firm develop deeper growth enabled the to firm to develop deeper creation reliable feedback the creation of high-quality, reliable feedback To compound matters, there few anyifnotes, instiYet, there asare Kahneman there isthe a third typeofofhigh-quality, To compound matters, areiffew any insti1. … 1. … ork from a partner, your work levels of specialization. Further, the intergenerlevels of specialization. Further, the intergenerthat accelerate the acquisition and develloops that accelerate the acquisition and develtutional rewards for giving developmentally rich expertise, called intuitive that comtutional rewards forthinking, giving developmentally rich loops tter. If the assignments dry ational linkage with with young lawyers enabled ational linkage young lawyers enabled 1 1 opment of valuable professional skills.skills. opment of professional feedback, partially because itthe is difficult to seeming bines speed and effortlessness of valuable feedback, partially because it is difficult to rry. This is very much akin to 2. … 2. … partners to feel they were doing both well partners to feel they were doing both well measure the quality of feedback System 1 and withits theimpact impressive measure the quality of feedback and its impact domain knowlho receives an A, B, or C letter Prediction No. 2. Within 20 years, and possibly Prediction No. 2. Within 20 years, and possibly and good. and good. on lawyer development, and and partially because edge of System 2. In the legal on lawyer development, and accuracy partially because the term. sooner, newagrid class of legal service organ3.listed … 3. … much sooner, new of (as legal organ1.) Onmuch the left side ofathe weclass a service reflexive (for example, daily or weekly housescholarship remains the primary coin of the world, this person scholarship remains the primary coin isofthe thepractice master — the Several decades of unrelenting growth and and Several decades of unrelenting growth izations will emerge whose competitive advanizations will emerge whose competitive advanclass) “what went well,” and on the right side of hold chores or surfing theuniversity Internet), and realm among educators. skilled trialSystem lawyer or tax attorney or environrealm among educators. tflow of lateral partners is university prosperity among larger law firms obscured the the prosperity among larger law firms obscured tage will be rooted entirely in innovation and will be “things rooted entirely in innovation and the grid wetage identified to look at.” (My 2, which is slow, deliberate, and effortful (for The combination mental specialist. of efficiency rms to collapse, it is difficult business logic that supported the law firm trainbusiness logic that supported the law firm trainvalue-based offerings. Further, theJeff signature value-based Further, the signature instructors and I offerings. are indebted to Carr, For all these reasons, the majority ofjustifies lawof lawthefellow example, learning thinkreasons, likeand a lawyer during Forofall oftothese the majority precision premium rates that The presentations surprised using on several ing on this year’s revenues is model, albeit that model likely did as much ing model, albeit that model likely did as much feature of these organizations will feature these organizations willteams be teams General Counsel ofofFMC Technologies, forbe school coursework involves very little feedback the first year of lawcoursework school). According to Kahneschool involves very little feedback these practice masters are able to charge. levels. First, we were astonishedtoatcreate the level ment. Yet, the emphasis on greatof lawyers as any to create great lawyers asABA-accredited any ABA-accredited working in feedback-rich environments — feedworking in feedback-rich environments — feedproviding us with this very simple “hot wash” beyond a letter grade derived fromfrom a single man, our minds naturally gravitate toward beyond a letter grade derived a single creativity that an ungraded team-based assignal results invariably dilutes law school. law school. back from supervisors, feedback from peers, back from supervisors, feedback from peers, format.) expertise? Because high-quality 1-type thinking,exam. primarily Systemend-of-the-term Yet, because how doesithigh-quality one obtain intuitive end-of-the-term exam. Because was capable of producing. Second, we e, money, and emotion in 1ment and, feedback fromFigure subordinates, mostmost imporfeedback from subordinates, and, imporfeedback canalbeit accelerate lawyer professional conserves energy, the rigor oflawyer System 2 is According to professional Kahneman, “Whether professionfeedback can accelerate realized that after the first group set the basen of lawyers. tantly, feedback from clients. tantly, feedback from clients. necessary for solving difficult als problems. have a chance to developWHAT intuitive expertise WENT WELL THINGS TO group LOOK that AT followed was willing to settle line, no depends essentially on the quality and speed short- versus long-term incenfor a work product that did not meet or exceed Yet, as Kahneman notes, thereofisfeedback, a third type of as on sufficient as well 1. … opportunity 1. that … standard — the transparency of performthe economics literature thinking, called intuitive expertise, that com5 to practice.” ective action problem.” In this ance, along with peer pressure within teams, bines the speed and seeming effortlessness of er who bears the cost of giving 2. … 2. was … a tremendously powerful motivator. Third, System 1 with the impressive Kahneman’s domain knowlassessment comports with my own to associates creates a the hot washes at the end of each class proedge and accuracy of System experience 2. In the legal as an educator. r partners will want to use. 3. … 3. vided … an easy-to-follow roadmap for ways to world, this person is the practice master — the receives an adequate reward make the presentation better. So, class after Several years ago, I created a new project manskilled trial lawyer or tax attorney or environs, the supply of developmenclass, the student work product just kept agement course at Indiana Law. Students were mental specialist. The combination of efficiency is going to decline, thus getting better and better. placed into teams and given a project from an and precision justifies the premium rates that The presentations surprised us on several of junior lawyers. actual real-world client, which they were rethese practice masters are able to charge. levels. First, we were astonished theteam levelwas of given the assignment of sumTheatlast quired to organize, manage, and complete. The creativity that an ungraded team-based assignidual law firm problem. marizing the book and creating a simple pracYet, how does one obtain intuitive expertise? concepts and principles ofment project management was capable of producing. Second, wethe novice project manager. Much namic that affects the entire tice guide for According to Kahneman, “Whether are noprofessionmore difficult than arealized typical that undergraduafter the first group setchagrin, the base1L year through partnership. to my the team came to my office and /12June 2014 — NALP Bulletin / June — NALP Bulletin als12 have a chance to2014 develop intuitive expertise ate course. Thus, rather than lecture on the line, no group that followed was willing to settle w school or legal service said, “Professor Henderson, there is absolutely
Unfortunately, as the private practice of law has become more competitive, a growing number of law firm partners are replicating the sins of law professors, economizing on feedback to junior lawyers in order to focus on things that bring more immediate rewards. And in recent years, the number one strategic objective of most law firm managers is to increase overall firm revenue.3 Thus, in many partner-associate relationships, feedback is often limited to work flow. If you keep getting work from a partner, your work is acceptable or better. If the assignments dry up, you need to worry. This is very much akin to the law student who receives an A, B, or C letter grade at the end of the term. Because a large outflow of lateral partners is what causes law firms to collapse, it is difficult to argue that focusing on this year’s revenues is bad firm management. Yet, the emphasis on short-term financial results invariably dilutes investments of time, money, and emotion in the next generation of lawyers. This imbalance in short- versus long-term incentives creates what the economics literature refers to as a “collective action problem.” In this context, the partner who bears the cost of giving first-rate feedback to associates creates a resource that other partners will want to use. Unless the partner receives an adequate reward for his or her efforts, the supply of developmentally rich feedback is going to decline, thus slowing the growth of junior lawyers. This is not an individual law firm problem. Rather, this is a dynamic that affects the entire industry,4 from the 1L year through partnership. As a result, any law school or legal service organization to overcome this problem, through either clever design or brilliant leadership or both, is destined to reap enormous rewards in reputation and market share at the top of the food chain. How important is feedback to lawyer development? In his recent book, Thinking, Fast and Slow, the Nobel Laureate Daniel Kahneman distinguishes between two types of thinking, System 1, which is relatively effortless and
reflexive (for example, daily or weekly household chores or surfing the Internet), and System 2, which is slow, deliberate, and effortful (for example, learning to think like a lawyer during the first year of law school). According to Kahneman, our minds naturally gravitate toward System 1-type thinking, primarily because it conserves energy, albeit the rigor of System 2 is necessary for solving difficult problems. Yet, as Kahneman notes, there is a third type of thinking, called intuitive expertise, that combines the speed and seeming effortlessness of System 1 with the impressive domain knowledge and accuracy of System 2. In the legal world, this person is the practice master — the skilled trial lawyer or tax attorney or environmental specialist. The combination of efficiency and precision justifies the premium rates that these practice masters are able to charge. Yet, how does one obtain intuitive expertise? According to Kahneman, “Whether professionals have a chance to develop intuitive expertise depends essentially on the quality and speed of feedback, as well as on sufficient opportunity to practice.”5 Kahneman’s assessment comports with my own experience as an educator. Several years ago, I created a new project management course at Indiana Law. Students were placed into teams and given a project from an actual real-world client, which they were required to organize, manage, and complete. The concepts and principles of project management are no more difficult than a typical undergraduate course. Thus, rather than lecture on the material in class, I assigned each team specific chapters from our course book, requiring them to teach the rest of the class through a wellchoreographed presentation. My goal was to cover the basic materials while also practicing teamwork and communication skills. Although the chapter presentations were ungraded, at the end of each class we conducted a “hot wash,” which consisted of a simple grid drawn on the whiteboard. (See Figure
1.) On the left side of the grid we listed (as a class) “what went well,” and on the right side of the grid we identified “things to look at.” (My fellow instructors and I are indebted to Jeff Carr, General Counsel of FMC Technologies, for providing us with this very simple “hot wash” format.)
Figure 1 WHAT WENT WELL
THINGS TO LOOK AT
1. …
1. …
2. …
2. …
3. …
3. …
The presentations surprised us on several levels. First, we were astonished at the level of creativity that an ungraded team-based assignment was capable of producing. Second, we realized that after the first group set the baseline, no group that followed was willing to settle for a work product that did not meet or exceed that standard — the transparency of performance, along with peer pressure within teams, was a tremendously powerful motivator. Third, the hot washes at the end of each class provided an easy-to-follow roadmap for ways to make the presentation better. So, class after class, the student work product just kept getting better and better. The last team was given the assignment of summarizing the book and creating a simple practice guide for the novice project manager. Much to my chagrin, the team came to my office and said, “Professor Henderson, there is absolutely no way we can top what the other teams have done. We are going to look foolish trying to summarize their work.” Having never encountered this situation before, I reminded them, “This is all ungraded. Do the best you can. Just try to create a resource that your team would value as we move on to the actual client project.”
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A week later, they made their class presentation, and much to everyone’s astonishment, they exceeded the performance of all the prior groups. Indeed, one of my students obtained a job at a major law firm not through his grades — which were average — but by my showing them the outstanding project management summary guide produced by his team and the peer reviews from his fellow team members. As an educator, I was dumbstruck. We all know that feedback is useful. But I had no idea that well-structured feedback, if given to a highly motivated and receptive audience, could supercharge lawyer development. I realized that the cost of feedback — in time, effort, and emotion — was obscuring a proper accounting of its benefits, including those that would redound to the organization and serve as a source of competitive advantage. Since that time, my colleagues and I at Indiana Law have experimented with more ways to funnel feedback to students, wherever possible lowering the costs and increasing the quality. This led us to implement 360° feedback (technically known as multisource feedback, or MSF) to all students in Indiana Law’s Legal Professions course, which is a team-based class taken by all 1Ls. Students are evaluated by their peers on 18 scales that feed into six primary competencies: (1) conscientiousness toward the group, (2) interpersonal self-awareness, (3) active listening, (4) eliciting information through effective questions, (5) communication and presentation skills, and (6) resilience/growth mindset.
Not surprisingly, students tend to get the highest marks on dimensions that most closely mirror college academic performance, since most of the students were admitted to law school based on these criteria. The lower scores on the so-called “soft skills” are eye-opening for students, as they have never received feedback on these dimensions before. This assessment method has gained traction among our students because they are seeing the connection between the 360° criteria and the type of competencies that behavioral interviews often attempt to uncover. The feedback they receive from their peers creates an awareness that enables them to grow and communicate that progress to prospective employers. Law professors and law firm partners fully understand the costs of giving feedback. However, because we don’t fully appreciate its benefits, we tend to under-invest in it. This is an opportunity that is sure to be tapped into in the years to come. ■
2
See, e.g., Theodore Voorhees, The Practical Lawyer’s Manual of Law Office Training for Associates (ALI-ABA, 1960) (outlining a roadmap for lawyer professional development and stressing the importance of lifetime learning). Voorhees served as president of the Philadelphia Bar Association before starting the Washington, DC office of Dechert, Price & Rhoads.
3
For example, according to a large national survey of partners in corporate law firms, the overwhelming proportion reported that working receipts and client origination were the primary factors in determining their compensation. See Major, Lindsey & Africa 2012 Partner Compensation Survey, Appendix XI (2012).
4
Indeed, as a native of Cleveland, Ohio, I witnessed a similar dynamic in the automotive industry. The Big Three put enormous financial pressure on their suppliers, who responded by placing downward pressure on worker wages, often by trying to suppress the unions. Over time, neither the suppliers nor the unions were willing to bear the cost of training highly skilled tool and die makers. As a result, the entire region began to lose its competitive advantage.
5
See Daniel Kahneman, Thinking, Fast and Slow, chapter 22 (Farrar, Straus and Giroux, 2012).
Endnotes 1
Though one can hold out hope that he or she who delivers valuable feedback to the next generation of lawyers will be rewarded by karma, heaven, or the intrinsic joy of creating more and better problem solvers.
“…Any law school or legal service organization to overcome this problem, through either clever design or brilliant leadership or both, is destined to reap enormous rewards in reputation and market share at the top of the food chain.”
14 / June 2014 — NALP Bulletin