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How To Confront A Performance Problem Without Being A “Quiet Herd Cutter”




by:
Jathan Janove
Ogletree, Deakins, Nash, Smoak & Stewart, P.C. - Portland Office

 
March 3, 2014

Previously published on February 21, 2014

In a previous post, I described the “Quiet Herd Cutter” problem, a term I have used to describe a phenomenon especially prevalent in law firms where employees’ failure to meet expectations results in being quietly excluded from new work. In this story, I present an alternate approach.

Being Let Down By An Associate Attorney

A plaintiff’s lawyer sent a demand letter stating that unless my client paid his client $250,000 by the following Tuesday, my client would be sued for a vastly greater sum.

I called the opposing counsel and told him that if he held off on filing the complaint, I’d investigate the claim and determine whether there was anything for us to talk about at that stage.

He agreed, and I said I’d contact him within two weeks.

While gathering the facts, it struck me that we might have a great legal defense. I asked Sarah, a first-year associate attorney, with whom I had not yet worked, to do the research. Sarah said, “I have a few assignments to complete, but will Friday suffice?”

“Perfect,” I said. “Just in time for me to call the plaintiff’s counsel.”

Preoccupied with preparing for a business trip, I didn’t notice that Friday came and went without word from Sarah.

The weekend and Monday also passed without Sarah’s response.

Not until late Tuesday afternoon while traveling did I realize that Sarah had missed her deadline—and that I had missed mine for responding to opposing counsel. My first thought was “I’d better call him now—otherwise, he’ll go ahead and sue my client!” My second thought: “Sarah hasn’t given me the answer I need!”

I immediately emailed Sarah, “What’s the answer?”

I received Sarah’s response on Wednesday morning. Her email contained an apology and a message that made me forget my aggravation—temporarily. According to Sarah, we had a great defense to the claim. Eureka!

However, as I read her research memorandum, I detected a potentially serious error in Sarah’s analysis. I thought. “If I call the attorney, assert this defense and am wrong, my credibility will be shot!”

I did call the plaintiff’s attorney, but instead of responding to his client’s claim, I apologized for my delay and told him I’d respond by Friday.

I emailed Sarah with my concerns and asked her to reexamine her conclusion. A few hours later, I got a reply: “I’m very sorry. I made a mistake. Under the facts of this case, our client does not have this defense.”

At that moment, steam was coming out of my ears. “First, she completely misses the deadline; then she gives me the wrong answer!” Instantly, I thought of another associate in the office, Mary, who’d done good work for me in past: “From now on, it’s Mary!” I said to myself.

Upon reflection, however, I realized that Sarah deserved better than to be quietly cut from the herd. The fact is, I’d missed the deadline too and couldn’t fairly expect an associate’s best work in response to a semi-manic message from a partner seeking an immediate answer.

Closing the Performance Gap

After I returned from my trip, I invited Sarah to my office. “Have a seat,” I said. I noticed she was nervous. “Before discussing what happened earlier this week,” I said, “I’d like to share a couple of observations with you.

“Over the years, when it comes to research assignments, two characteristics separate associates I’ve valued highly from those with whom I’ve struggled.

“The first is timeliness. When associates own responsibility for meeting deadlines, it enables me to improve what I do. When they don’t, either the responsibility stays on my back, slowing me down, or worse—we risk disaster. This doesn’t mean a deadline can’t be changed if circumstances warrant it and we make sure the client’s needs are taken care of. Indeed, your owning responsibility for timeliness may mean grabbing me by the collar if I’m the one slowing things down.”

“The second characteristic is having an inner voice that asks, ‘What did I miss?’ when you think you’ve found the answer. Every lawyer I know, myself included, has made the mistake of thinking he or she has found the right answer while disabling his or her inner critic who might challenge the underlying legal or factual assumptions. Human beings want closure, but it’s at the point when you think you’ve reached it that the danger arises. You should challenge your own conclusions as if you were your own opposing counsel.”

I then said, “So what are your thoughts, Sarah?”

She paused, and said, “I clearly blew it on both points. I got really busy late in the week and totally forgot about the assignment. When I got your email on Tuesday, I panicked and immediately started researching and worked late into the evening.

“I was so happy when I thought I found the answer you were hoping for I thought, ‘Given the good news, maybe he’ll forgive my lateness.’ I had no questioning inner voice at that point.

“In fact, I think the two characteristics are connected. Missing the first one set me up to miss the second since I was scrambling and hoping I’d find an answer you’d like.”

“Good point,” I said. “I see the connection too.”

Sarah started to berate herself. I stopped her. “The point, Sarah, is not to dwell on the past. It’s to change how we work in the future.”

“Frankly, since you and I hadn’t worked together before, there’s no reason I couldn’t or shouldn’t have shared these two characteristics at the outset. Perhaps the problem would have been avoided. In any event, whether we end up having a long, productive relationship will depend on what happens going forward.”

Epilogue

Sarah and I continued to work together. No herd cutting ensued. In fact, about a year later, Sarah walked into my office and said, “Jathan, remember when you said owning responsibility for timeliness meant that I should grab you by the collar when you’re the one slowing things down?”

“Yes,” I replied.

“Well,” Sarah began....



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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Author
 
Jathan Janove
Practice Area
 
Labor & Employment
 
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