|Kicking The Can|
The pain of dealing with difficult personnel situations can be reduced by planning ahead
By Ed Wesemann
Performance problems are difficult. Dealing with underperforming partners, associates who are not meeting the firm's standards, or people who are "culturally challenged" is awkward, embarrassing, unprofessional and messy. It is often easier to look the other way and ignore the problem with the hope that it will somehow go away - the law firm equivalent to what politicians call "kicking the can down the road."
Unfortunately, the consequences of can kicking are precisely what one would suspect. A leader's fear of an ugly confrontation can result in years of turmoil and problems; as the German saying goes "a situation that ends horribly is better than one that is endlessly horrible." The issue seems not to be getting leaders to decide what must be done - they typically know that instinctively. Instead leaders seem to have a tough time "pulling the pin" - getting past the ugliness of the action itself. Oddly, leaders sometimes find themselves somewhat hoping for a crisis - a burning platform to force their own action.
There is no way to make difficult personnel actions easy. But there are some techniques that may help leaders sleep better the day before, and the day after, they take action.
- Build the case. It is important for a leader to be personally convinced that the action being contemplated is appropriate and necessary. This is the simple process of creating a one-page narrative describing the problem, the difficulties or financial implications of the problem, and previous attempts at resolution. THIS DOES NOT HAVE TO BE PROOF POSITIVE FOR A COURT OF LAW. It is just a summary of the information at hand on which the action is being justified.
- Plan the action. If the intended action is termination, lay out a detailed list of the severance benefits. Include face-saving features such as the continued ability to have email and telephone messages forwarded to them (after screening). Err on the side of generosity - it will relieve a lot of guilt, and avoid ongoing negotiations.
- Rehearse the conversation. Create a list of the things you would say were you the person involved, and prepare responses (remembering that sometimes an appropriate response is to say nothing). Get together with another partner and practice the conversation with the person you are working with being as truculent as possible.
- Create leverage. If the partnership agreement limits your authority in the situation, have some form of leverage to encourage the individual involved to not seek further appeal. For example, in terminating a partner who can demand a partnership vote, offer the severance package only if the individual resigns the partnership. If the issue goes to a partnership vote and the partners vote for dismissal, it is doubtful they will offer as generous a severance package.
Finally, remember that you are not the person who created the problem. If anything, you are the victim because you have to clean up the mess. Don't make the process more painful than it need be.
Contact the author, Ed Wesemann
|Options for Coping with Underperformers |
Getting rid of underperformers may be the obvious choice but it is not the only choice.
By Nick Jarrett-Kerr
It seems that the issue and management of underperformers have altered in recent years. A few years ago, most well-managed firms identified the clear misfits, shirkers and serial underperformers in their firms and managed them out. What has happened in many cases since then has been that firms have had to face one or more of five issues:
First, as competitive pressures increased, firms had to restructure their partnerships in order to remain competitive and - where they recognised that the firm had become over-partnered
- slimming down the partnership became necessary.
The second issue has often been that in some firms there are no obvious individual incidents of underperformance, but performance across teams and firms has become lacklustre; in these firms and teams, there are very few star partners, and the remaining partners as a group are all performing poorly or below law-firm industry benchmarks.
Third, firms have found that the removal of the bottom 10% of partners gradually placed a number of the next tier of partners into the bottom performing tier of remaining partners in their firms on a relative basis.
Fourth, a number of firms have reported to us that some partners have found it difficult to change gear at the same speed as their firms have developed into higher tiers of work and acquired more sophisticated clients.
Finally, the recession has led to a number of areas of law becoming either temporarily or permanently contracted, or out of favour.
In all five of these scenarios, affected partners can often count themselves unfortunate to be under performance scrutiny. One managing partner told us on a non-attributable basis that there have been times "when we recognised that there was a simple business need to remove senior cost from the firm and therefore the agonising decision was made to remove a number of partners. It was then a question of setting criteria to decide which partners were to go and applying them. The partners who had to leave were, in a sense, faultless and were in the wrong place at the wrong time."
In the light of these five main issues, some firms are now approaching their options much more sensitively than before, whilst other firms - having cut the first tranche of obvious underperformers - are now taking a harder performance line with the remaining partners. As an example, 40% of respondents to the Edge International 2011 Survey made it clear that they regularly consider de-equitising or redeploying partners.
My recent Ark report, Tackling Partner Underperformance in Law Firms, highlighted seven options for dealing with underperformers in addition to expulsion.
- Reinvigorating moderate performers. Many firms take the view that personal career planning for partners can, with the firm's support, help moderate partners to re-focus their levels of ambition and to improve their contribution.
- Incremental performance improvement across teams and offices. Some firms have teams in which there are no underperforming partners as such, but where there are too few stars driving the team forward and too many partners who are working with comfort zones. In such firms, the important first step is to agree and communicate expected standards of performance and a route map to achieve some minimum-performance benchmarks.
- Addressing weak performance areas by partner development, training and re-training. This is particularly suitable for partners who are strong in some of the critical areas of performance and below average in others, as it is often possible to address particular areas of weakness.
- Rehabilitation of temporary strugglers who have experienced a temporary 'blip' in performance.
- De-equitising partners. De-equitisation can be particularly useful for partners in their final years who are starting to feel the strain of increased performance management pressures and might want to avoid the risk of a partner cull.
- Facilitating partner moves. One firm told us, "We have sometimes talked to other firms that we know who are downstream of us and who could do with an improved skill set. This has enabled us to make an introduction of a partner to another firm where they might prove to be happier".
- Voluntary and negotiated departures. It is noteworthy that in the Edge International 2011 Survey, half of the departures of underperforming partners occurred after negotiations.
- Expulsion. Formal expulsion from the firm is the 'nuclear option' and seems to be rarely exercised. The Edge International 2011 Survey showed that in only 5% of cases was it necessary to obtain a formal resolution of the partnership.
|Bonuses: Think before you leap|
Law firms should consider carefully before instituting or increasing bonuses as part of partner compensation.
By Sean Larkan
One of the most significant developments highlighted in the Edge 2012 Global Partner Compensation System Survey was the increased use of bonuses as part of the typical compensation package for partners used by large law firms.
- in every country surveyed the usage of bonuses has increased - in the UK and Europe by up to 70%;
- the amount of the average bonus has also gone up;
- in most countries the percentage of the total value of bonuses as a percentage of the total profit distribution to partners has also increased.
These are significant findings and many firms, large and small, may be tempted to assume that bonuses are here to stay and should now be an essential part of law firm partner compensation systems. I have recently had firms discuss this with me. I urged caution, and suggested that they should carefully think through the implications before leaping into introducing partner bonuses or expanding their usage.
I counselled restraint, as bonuses sometimes please no one, including the recipient, who can feel that he or she has not been paid enough. Non-recipients can feel unfairly dealt with or overlooked, while those implementing the system can find it an extraordinarily taxing and frustrating job and feel dissatisfied at the end of the process.
There are some other things to bear in mind:
- once implemented, bonus systems can be difficult to dismantle.
- think carefully about why they are being introduced. Is it because the present system is not working - maybe attention should be given to that instead? There are some very successful tried-and-tested hybrid systems which can address all criteria that are traditionally the basis of bonus payments.
- is the proposed bonus payment aimed at protecting the firm against possible defecting star performers or external poachers of the same partners? Is it to reward extraordinary financial contributions, or maybe something else? Are these the things you wish to reward or guard against in this way? If so, how does it sit with your core values and culture?
- bonuses eat up some of the profit cream. As the proportion of total bonus distributions increases, they start consuming a far more significant chunk of profit available for general distribution. Other partners can start resenting this, especially when they feel a bonus is simply being used to retain a star prima donna, particularly where the payment is based almost solely on fee performance.
Having expressed these cautionary notes, I think there is a limited role for bonuses. They should:
- be an exception, not the rule;
- acknowledge truly extraordinary performance or contributions, which everyone feels it is fair to recognise in a special way;
- not be paid only for financial contributions but also for things like landing a massive new client or introducing a new practice area;
- not be part of the general compensation system, which in any event should encourage a wide range of exceptional contributions under a number of different headings;
- not be used as a defence mechanism to buy the loyalty of a potential defector; and
- not be used as an offensive measure to buy a lateral star. Both of the last two steps create a bad precedent.
On balance, I feel that a firm is far better off ensuring their existing performance management and support systems, feedback channels, performance assessment and ratings systems and compensation systems are working optimally in the eyes of those experiencing and administering them. If not, attention should first be given to sorting out any deficiencies. Once this is done, the possible introduction of bonuses can be considered as an exceptional payment for extraordinary contributions.
Contact the author, Sean Larkan
Why emails and large meetings do not encourage good questions.
By David Cruickshank
This is often the closing line when a partner assigns work by email or confirms assignments in a full team meeting. Typically, no questions of substance are raised in response. It develops later that the receiving associates were unclear, and their initial work is a mess. What went wrong?
The answer? The means of communication. In supervising associates and managing teams, the team leader's top priority in the early part of any project should be to promote questions and achieve clarity. Email is the least effective means of promoting questions and large meetings are also poor venues.
Associates in the mid-sized and large firms that I work with on management skills report two trends:
- Email now dominates communications from senior lawyers to juniors, even for delegation and feedback, and
- Juniors often see email as a communications record - used defensively for "CYA" purposes, and offensively to demonstrate responsiveness.
In that environment, no one wants to volunteer a "dumb question" or any question of substance for fear of being "on the record" as less informed. In team meetings, if an associate is unclear about overlapping duties, she is more likely to sort it out with a peer than to raise it in the group.
What is the lesson for assigning partners? Juniors (always), mid-levels and seniors are risk-averse. They are not going to ask substantive questions "on the record". Your job is to create opportunities for those clarifying questions.
Here are some tips for getting necessary requests for information:
- Delegate by meeting in person or by telephone; use email only for supporting information and documents;
- Break the dominance of email by walking around and seeing team members individually;
- When encountering a junior individually, engage him or her with an open question about the assignment - e.g., "Anything that I can do to help?"
- When convening initial team meetings, make it clear that we are all learning constantly and that there is no such thing as a "dumb question";
- Instead of asking "Any questions?" to the team generally, go around the room asking for questions or assignment summaries;
- Remind juniors in meetings that they are often closest to the detailed documents or research - thus in a good position to ask the challenging questions about the team's approach;
- Give feedback in person, even if it goes together with a red-lined document that was sent by email; and
- Give feedback during the project and ask for feedback on your skill in promoting good questions.
The more a partner uses face-to-face communication and builds trust by demonstrating the value of clarifying questions, the more those questions will emerge in meetings - perhaps even in emails. In the secure setting of a trusted team, there will be responses to "Any questions?"
Contact the author, David Cruickshank.
Legal League Consulting, LLC
Dehli and Mumbai,
|At The Podium: Upcoming Appearances by Edge Partners
Bithika Anand July 12
Circumnavigating the Globe: Achieving Smart and Profitable Growth Beyond Your Borders
Speaking on India, as part of the EDGE Presentation
Nick Jarrett-Kerr July 18
Webinar: Tackling Partner Underperformance in Law Firms
Webinar 12:00PM - 1:00PM EST
The Ark Group
Jordan Furlong July 21
Opening keynote address
Private Law Libraries Summit
American Association of Law Libraries
Jordan Furlong August 05
Keynote Address and Workshops
Strategic Solutions for Solo & Small Firms Conference
Jordan Furlong August 26
Presentation and Panel Moderation
ILTA 2012 Annual Conference
Jordan Furlong October 11
Institute for the Advancement of the American Legal System
Jordan Furlong Nov 02
Oregon State Bar House of Delegates Annual Meeting