Are “Aggressive” Litigators More Effective?

Are “Aggressive” Litigators More Effective?

Lawyers, especially litigators, apparently have anger issues. Read a dozen profiles of litigators on law firm websites, and you’re sure to see many describe themselves as “aggressive.”

Just once it would be refreshing for a litigator’s profile to say something like “Hailey’s clients appreciate her passive approach to litigation.”

But no, lawyers apparently believe that clients want litigators who are aggressive (whatever that means). I’ve always wondered about this, but it’s been on my mind more than usual because I recently got a good result for a client by taking a passive approach.

This raises an important question: are “aggressive” litigators actually better for clients? Do they get better results? After accumulating 20+ years of anecdotal evidence, I think I have some answers.

But first we must define what it means for a lawyer to be “aggressive.”

Aggressive lawyer personalities

It could just mean an aggressive personality. You know the type because you’ve seen it in TV shows and movies. Pounds the table. Raises his voice. Won’t back down from any confrontation. “We’ll see you in court!”

This type has become even more prominent because it’s the kind of lawyer favored by a certain very famous client. Lawyers Michael Cohen and Marc Kasowitz are two obvious examples.

Here’s Cohen talking to a journalist who was about to publish a story unfavorable to his client: “Tread very f***ing lightly because what I’m going to do to you is going to be f***ing disgusting. Do you understand me? Don’t think you can hide behind your pen because it’s not going to happen. I’m more than happy to discuss it with your attorney . . . because, mother***er, you’re going to need it.”

Kasowitz is also a tough talker. When a stranger sent him a critical email, Kasowitz responded with these choice words: “I’m on you now. You are f***ing with me now. Let’s see who you are. Watch your back, b**ch. . . . You are such a piece of s**t. Call me. Don’t be afraid, you piece of s**t. Stand up. If you don’t call, you’re just afraid.”

I’d say those two are pretty “aggressive” (at least by phone and email).

But when lawyers market themselves as “aggressive,” they’re not just saying “I know how to act like a jerk.” They’re also talking about tactics, especially when their targets are more genteel and “sophisticated” clients, like big companies that have their own in-house lawyers. These clients want—or think they want—a lawyer who will take an aggressive approach to a lawsuit.

Of course, an aggressive personality does not necessarily mean an aggressive approach. There are plenty of litigators who have aggressive personalities but demure when it comes to taking action.

For example, remember all those F-bombs Michael Cohen dropped to pressure a journalist not to publish a story? The story was published. There was no lawsuit. And when Kasowitz fired off a confrontational letter to the New York Times threatening a defamation lawsuit, I waited eagerly to see what the lawsuit would say. I’m still waiting.

No, an aggressive personality doesn’t necessarily mean aggressive tactics. And the converse is also true. A lawyer can have the personality of Mr. Rogers and pursue aggressive tactics, smiling politely the whole time.

I imagine the notoriously button-downed Bob Mueller is one of these types: a mild-mannered gentleman who will gut you like a fish in court. (Just ask Paul Manafort if he misses his Persian rugs sitting in a jail cell.)

On the other hand, there does seem to be some connection between an aggressive personality and an aggressive approach. For starters, people with more aggressive personalities are probably more likely to pick litigation as a practice area. And I would be willing to bet that all else being equal, a litigator with a more aggressive personality is a little more likely to favor aggressive tactics.

But here again, it depends on how we define aggressive. I say an “aggressive” approach to litigation essentially means two things: having courage and being proactive.

The aggressive approach to litigation

Courage in litigation translates to a willingness to assert “creative” factual or legal theories and a willingness to fight out disputes in court, even if there’s a decent chance you’re going to lose.

But does it really take courage to do these things? The lawyer is trying to make money, and if anything, taking these risks means more billable hours.

True, but if there’s one thing that motivates lawyers more than money, it’s fear. Specifically, it’s the fear of losing, fear of getting embarrassed in the courtroom, even the plain-old fear of looking like you don’t know what you’re doing. These fears are what will stop litigators from taking a stand for their clients.

The second part of an aggressive approach is being proactive. This is the opposite of being reactive. You won’t find the adjective “reactive” in any lawyer profiles, but the reactive approach to litigation is common. A reactive litigator just reacts to events in the lawsuit, particularly deadlines and actions taken by opposing counsel.

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Litigation requires courage

Unfortunately, you often see lawyers who combine a reactive approach with an aggressive personality. They lurch from one crisis to another. They may go weeks without devoting any attention to the case, and then when a deadline is a few days away, they suddenly go on the warpath.

Many litigators get by and make a good living with this approach, especially if they master the art of appearing “aggressive,” managing client expectations, and taking credit when good results happen.

But this “aggressive-reactive” combination is not optimal for getting good results.

Fewer litigators are genuinely proactive, because being proactive requires discipline, and discipline is well, you know, boring. Being proactive requires a plan, a methodology. “I love it when a plan comes together.” Otherwise you’re just bouncing from one crisis to another. “Putting out fires” is not being proactive.

In short, I define an aggressive approach to litigation as being courageous and proactive. But we still haven’t answered the question: is an aggressive litigator better for the client?

Pros and cons of the “aggressive” litigator

Here we must be careful to correct for our biases. Lawyers with aggressive personalities are likely to believe that having an aggressive personality makes a lawyer more effective, and vice-versa.

What type am I? A guy with a highly aggressive personality is not going to sit down and write an article over-analyzing the concept of aggressiveness, so you already know the answer. Don’t get me wrong, I like to duke it out in court. But that’s because I like competing and, honestly, “performing” for a crowd, not because I like personal confrontation.

So, I want to adjust for my own bias and give aggressive personalities their due. I’ll acknowledge three main advantages to an aggressive personality in litigation.

First is the simple fact that aggressive people often get their way—especially with little things—simply because dealing with them is a pain in the ass. If you know opposing counsel is a jerk, you’re more likely to say “ok, fine, we’ll do the deposition at your office.”

Second is the fact that appearance can be reality in litigation. The vast majority of cases settle, and settlement expectations can be shaped by personalities. A lawyer with a genuinely aggressive personality is probably better at putting on a show that conveys the appearance that “we’re not afraid to fight this out in court.”

Third, there is some connection between anger and courage. Maybe anger is the wrong word. I’m thinking of what the Greeks called thumos, which might be translated as “spiritedness.” It’s the feeling that takes over when someone has physically threatened your loved ones or, in this case, financially threatened your client. Generally, a more spirited lawyer will be more willing to take a risk to defend a client.

Yes, in some ways an aggressive personality can make a litigator more effective, but overall, I think the benefits are minor. And there are drawbacks.

The biggest problem with lawyers who have “aggressive” personalities is that they’re not in control of their emotions. They let pride and anger cloud their judgment, and that causes mistakes. An angry lawyer can do OK if he’s just blocking and tackling. But do you want your quarterback to be angry? Or do you want a Joe Montana with ice in his veins?

On the whole, I think it’s a wash. An aggressive personality will be a benefit in some litigation situations and a hindrance in others. If anything, it’s a slight negative. In any case, I tend to favor lawyers just being themselves. If there’s one personality trait that will make you unpersuasive in litigation, it’s being a fake.

But what about aggressive litigation tactics? Regardless of personality, will a lawyer who takes an aggressive approach to litigation get better results?

If we stick with my definition of aggressive as being courageous and proactive, then I think the answer is a tentative yes. (How’s that for a non-aggressive answer?)

Litigation is not a tennis match (no offense to tennis). It’s more like tackle football. A lawyer who isn’t willing to get his nose bloodied is less likely to get good results. You need the courage to take the risk of losing. And proactive lawyers who push a lawsuit forward are usually going to get better results than those who just react to what others do.

Being aggressive in the right way at the right time

But what about the recent experience I mentioned? Does my successful experiment with  a “passive” approach call into question the aggressive approach to litigation?

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Litigation is not tennis

To some extent, yes. Here was the situation. My client was a business that got dragged into a lawsuit with multiple defendants. The plaintiff’s damage theory against my client was fundamentally flawed. We pointed that out early in the case, and the plaintiff indicated he might just voluntarily dismiss my client from the case.

So I waited. The last thing I wanted to do was bill my client a lot of money for taking discovery that could end up being unnecessary.

But you have to understand. This was hard for me. I wanted to do something.

Weeks went by with no activity. I couldn’t stand it. I suggested asking for the plaintiff’s deposition to try to prompt some action. But my client wanted to sit tight and wait. So I waited some more.

A couple weeks later the plaintiff dismissed my client from the case. It was over. Naturally, I took credit for our wise strategy of doing nothing.

But seriously, in hindsight my client made the right call. If I had been aggressive, it would have cost the client more money, and who knows, it might have irritated the plaintiff to the point of keeping my client in the lawsuit just to be difficult.

That got me thinking. Truth is, an effective litigator is aggressive about the right things, for the right reason, at the right time.

That reminded me of something I read in college. This is precisely what Aristotle said about the virtue of bravery.

You know Aristotle. He’s the guy who said: “We are what we repeatedly do. Excellence, then, is not an act, but a habit.”[1] This is the most popular philosophical quote in pop culture outside of Nietzche’s “that which does not kill me makes me stronger.”

But I digress. Aristotle had a lot to say about bravery in his Nichomachean Ethics, including this: “Whoever stands firm against the right things and fears the right things, for the right end, in the right way, at the right time, and is correspondingly confident, is the brave person; for the brave person’s actions and feelings reflect what something is worth and what reason [prescribes].”

This is a strikingly sober definition of a brave person. One might even object that this takes all the zing out of bravery. Imagine Mel Gibson in Braveheart exhorting his men to “stand firm for the right end, in the right way!” It doesn’t exactly get the blood boiling.

But Aristotle understood this. He did not want to reduce bravery to just another form of knowledge, as he said Socrates did. Instead he tried to strike a balance. He wanted to distinguish the virtue of bravery from raw emotion, but without denying the physical and emotional nature of bravery.

“Brave people act because of what is fine,” Aristotle said, “and their emotion cooperates with them.” In contrast, people who “fight because of their feelings, not because of what is fine or as reason [prescribes]” have “something similar” to bravery. This bravery caused by emotion is “the most natural sort,” but it is not true bravery until “decision and the goal have been added to it.”

In other words, the right kind of brave person doesn’t seek out danger just for the thrill of it, but when achieving the right goal requires bravery, the brave person’s emotions cooperate.

I think that’s a pretty good definition of the kind of “aggressive” litigator a client should want. If I have to take an aggressive position or take a risk in court to defend a client’s interests, I want my emotions to cooperate. But I want reason, not emotion, to drive the decision and the goal.

Because losing in court may not kill me, but it doesn’t make my client stronger.

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IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. He uses *** for bad words because hey, this is a family blog.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

[1] This quote is actually misattributed to Aristotle, as explained here, but it’s close enough to the point Aristotle was making.

 

 

Top 5 Productivity Tips for Lawyers and Other Humans

Top 5 Productivity Tips for Lawyers and Other Humans

This is a special day. It’s my first new blog post of 2018. On top of that, my daughter is 17 years old today. More about that later.

Do you want to be more productive in 2018? Start by reading How to Be More Productive Without Burning Out by Matt Plummer in the Harvard Business Review. Plummer recounts a productivity experiment he started with bi-weekly meetings with a co-worker at a consulting firm.

The key to the experiment was the counter-intuitive way they measured productivity: reducing the number of hours worked per week. Over six months they reduced their average weekly hours worked by 15-20% and considered that a success.

But here’s the kicker. Plummer says “we were still getting just as much done as before.”

That’s productivity.

This is not the typical way law firms measure “productivity.” The vast majority of law firms generate the vast majority of their revenue through hourly billing. Not surprisingly, this results in measuring productivity by billable hours.

This, of course, is not true productivity. And tracking productivity this way contributes to some familiar pathologies law firms are known for: overbilling, inefficiency, lawyer burnout.

This is not to say that lawyers should ignore billable hours. Every good business has to watch its revenue like a hawk. Whether you’re an associate trying to make partner, a partner trying to stay a partner, or a managing partner trying to keep a firm afloat, you ignore billable hours at your peril.

But don’t start thinking that increasing billable hours—at the individual level or at the firm level—equals increasing “productivity.” That’s a lawyer-centric definition of productivity. It would be better to adopt a client-centric definition of productivity.

Of course, this advice is not limited to lawyers. Any profession that provides services to clients can benefit from focusing on generating quality work for the client in less time.

Increasing Your Productivity

Ok, you say. This year I will measure my productivity by overall work generated, not by billable hours. How do I increase that kind of productivity?

One option, of course, is to work more hours. Generally, if you spend more time working, you will increase the amount of output you generate.

But if you’re a lawyer or other professional, I’m guessing you are probably already close to your limit. As Plummer notes, a 2008 survey found that 94% of professionals worked 50 hours or more per week, and almost half worked more than 65 hours per week. That’s a lot of hours. And I doubt those numbers have dropped much in the last ten years.

pouring coffee
Trying to do too much can decrease your productivity

Plus, there is the problem of diminishing returns. People are not robots. Initially, when we increase the number of hours worked, we increase output. But eventually mental and physical fatigue sets in, and each additional hour produces less and less output (diminishing marginal returns).

And here’s the somewhat surprising news: as we get close to our upper limit, our marginal output actually falls close to zero. As Stanford economist John Pencavel detailed here, a classic study from World War I found that for most people, this starts to happen around 55 hours per week, and I doubt that has changed much in the last 100 years.

The 60/70 Rule

I find the 55-hour figure interesting because it roughly correlates with a way I’ve always looked at work hours. You might call it the 60/70 rule.

You hear a lot about “work-life balance.” I find that phrase too abstract. For most people, it comes down to two questions: do you see your kids for dinner, and do you see your kids before they go to bed? (I don’t mean to exclude you if you don’t have children; it’s just that this is the issue for most people.)

When you have young children, the length of your work day really comes down to two things. If you work more than 60 hours a week, you probably don’t get home for dinner with your kids most nights. If you work more than 70 hours a week, you probably don’t even see your kids before they go to bed most nights.

Now, if you’ve made a conscious decision that getting ahead in your profession is worth sacrificing that daily time with your kids, that is fine (I guess).

But for those of you who don’t have children yet or have children still in diapers, let me mention something you may have heard before: They grow up fast.

Yeah, I know, you say. Everybody knows that.

No. Really. They grow up fast. I’m serious. You won’t really understand that until it has happened.

And here’s something to consider that may be less obvious. Working 60+ or 70+ hours a week during that 17-year blur is no guarantee that you will achieve whatever professional success you were hoping for. You just may find that you missed your child growing up and don’t have that much to show for it.

With that in mind, let’s get back to the research finding the point of diminishing returns starting at 55 hours per week. If working more than 60 hours per week doesn’t materially increase your productivity, is it really worth it not to see your kids?

Of course, the 55-hour threshold may not apply to you. Your number may be less or more. The point is that the threshold exists, and I would be willing to bet that most of you are already at or above the threshold.

If I’m right, then working more hours is not a sustainable strategy for increasing your productivity.

I’m also guessing that Plummer’s experiment—increasing productivity by reducing your hours worked while maintaining the same output—is not a viable option either. You just have too much work you need to get done each day, and that’s before you take your kid to ballet class, coach the basketball team, or sew the costumes for the school play.

That means the challenge for most of us is to maintain the same basic number of hours worked per week while accomplishing more work during those hours. To do that, we have to identify the things that reduce our productivity.

Top Five Productivity Killers

So I looked back at 2017 and did a little self-assessment. I tried to identify the things that reduce the amount of work I get done while I’m at the office and narrowed it down to five things. (Obviously, I have a thing for the number five.)

  1. Interruptions

This one is pretty obvious. Read just about any article about workplace productivity and you’ll see something about interruptions. The classic examples are phone calls and people walking into your office needing something. And today, of course, we have emails.

Smarter people have studied the psychological reasons that interruptions hurt productivity, so I won’t belabor the point. Suffice to say that interruptions are a major productivity killer.

  1. Social Media and Internet

You could look at this as a sub-category of Interruptions, but I think social media and Internet are important enough to get their own category. How many times during a work day do you get tired or bored and click on Facebook, Twitter, Instagram, Five Minute Law, whatever?

This is not necessarily a bad thing. If you actually use social media to interact with people, that can have professional benefits. And even if you’re just mindlessly surfing, that can serve a purpose too. Everybody needs little breaks to stay fresh and productive, and checking out cute photos of your niece on Facebook is better than taking a smoke break.

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Too much surfing can kill your productivity

But have you ever tracked your social media and Internet time and added it up? I have. Believe me, it can take up a bigger chunk of your day than you expected. To be more productive this year, you need to keep it under control.

  1. Disorganization

This one sounds really boring, but it is critical. Being disorganized will kill your productivity.

If you’re not organized, how much time do you spend each day looking for whatever document you need at the moment? How many times have you sat in a meeting where an important question came up that could be answered in seconds if someone in the meeting just had a laptop—or even a good old-fashioned three-ring binder—containing some basic working files?

The trouble is that most lawyers and other professionals are not naturally organized. I certainly wasn’t when I started law practice. I kind of looked down on “organized” people. When I saw the rare lawyer with a neat and tidy office, I would think, “that guy obviously isn’t a litigator” or “he must not have much work to do.” When you’re a very stable genius, you don’t need to be organized.

How wrong I was. If you spend chunks of your day searching through piles of documents scattered around your office, you are wasting time. It’s hurting your productivity, and it’s probably costing your clients money they shouldn’t have to pay.

  1. Fatigue

This one overlays the others. Think about your work day and what causes you to stop working on something productive. In most cases, it’s because you’re mentally and/or physically fatigued. And the main reason you’re fatigued is that you didn’t get enough sleep. I definitively covered this topic in I’ll Sleep When I’m Dead: The Ignored Epidemic in the Legal Profession.

I think fatigue is also the main explanation for why returns start diminishing, for most people, around 55 hours per week. If you’re working more than 55 hours per week, you’re probably not getting enough sleep, and if you’re not getting enough sleep, you’re getting less done per hour, whether you know it or not.

  1. Boredom

But it’s not just fatigue that causes us to stop working on the tasks we need to accomplish for the day. I know, we all love our jobs and can’t wait to get to work in the morning, but let’s face it. Sometimes we get bored.

No matter what your profession, there are probably some things you have to do that are simply boring. For litigators, the usual suspects are document review and legal research. That’s partly why these tasks are often assigned to young associates.

Personally, I usually enjoy doing legal research, even after 20 years of practice. One of the great things about my profession is that knowledge really is power, and every time you research a new legal issue, you add another arrow to your quiver. Legal research is only a drag when someone orders “find me case law that says X,” and X is either so obvious that courts haven’t needed to say it, or X is the opposite of what courts have said.

Same thing with document review. Sifting through boxes of documents produced by your adversary—or the digital equivalent—can be fun detective work, at least when you are looking for evidence concerning substantive issues. It’s more of a drag when you’re just mechanically reviewing documents, e.g. to identify documents that are attorney-client privileged.

In the inevitable situations where the work really is boring, it’s hard to stay productive. It takes an enormous amount of discipline to keep plugging away hour after hour at a really tedious task.

The Solution

So those are the five things I find hurt my productivity the most. Are they the same for you? Post a comment and let me know.

And now that we’ve identified the top five productivity killers, we can increase our productivity by eliminating them. All we need to do this year is (1) minimize interruptions, (2) put a reasonable cap on our daily social media and Internet time, (3) get organized, (4) get enough sleep every night, and (5) find ways to make our boring tasks more stimulating.

Easy, right? The hard thing is finding a way to turn the clock back 17 years.

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head-shot-photo-of-zach-wolfeZach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. This post is dedicated to Hailey. 

These are his opinions, not the opinions of his firm or clients. 

 

I’ll Sleep When I’m Dead: The Ignored Epidemic in the Legal Profession

I’ll Sleep When I’m Dead: The Ignored Epidemic in the Legal Profession

TexasBarToday_TopTen_Badge_VectorGraphicThere is an epidemic in the legal profession, one we don’t like to talk about. It affects other professions as well. It stresses our minds, weakens our mental and physical health, and strains our relationships with family and friends.

Alcoholism? Drug abuse? Depression? Yes, those are serious problems that disproportionately afflict lawyers. But I’m talking about something else: sleep deprivation. You know the problem is real when a prominent law firm installs napping pods in its break room.

We just don’t get enough sleep. See Law Is Second-Most Sleep-Deprived Profession. And usually our sleep deprivation is coupled with a physical addiction to caffeine or other stimulants. Now, being addicted to a double tall cappuccino is not the worst thing in the world (it’s $3.95 with tax), but it’s an addiction nonetheless.

The curious thing about this epidemic is that it is widely acknowledged but just as widely ignored. Imagine you’re the managing partner of a law firm. Would you allow lawyers to work while drunk? Of course not. But see Studies Show Sleep Deprivation Performance Is Similar to Being Under the Influence of Alcohol. When was the last time you heard a law firm partner say “listen, John, I’m really concerned about you coming to work without getting enough sleep”?

Lawyers react to the epidemic

If you tell a lawyer he or she is not getting enough sleep, you’re likely to get one of these reactions:

The “NSS” response. This stands for, as we used to say in junior high, “No S**t, Sherlock.” This response acknowledges the problem but shrugs and says, “hey, that’s life, what are you gonna do?”

The “Macho” response. This one sounds like a lament but actually celebrates the problem. “Yeah, last month was rough, I billed 250 hours and only slept four hours a night.” It wears sleep deprivation as a badge of honor, like a commando talking about sitting in frigid water for hours during Navy SEAL training.

Denial. “I know I should be getting more sleep, but I get by once I’ve had my morning coffee. It’s not that big a deal.”

And you can just imagine the lack of sympathy you’ll get from a non-lawyer. “Yeah, it must be tough making $250K a year and not getting enough sleep. Well, my dad was a bricklayer and worked two full-time jobs just to put food on the table.” Or the white-collar version: “You lawyers should stop whining; try working an overnight shift in the ER.”

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Liquid job performance?

Ok, I respect that (sort of). But the thing I find most interesting about these typical responses is that they ignore a crucial question: how does sleep deprivation affect job performance?

People tend to look at sleep and work as competing priorities. It turns into a debate: sensitive souls who say you shouldn’t sacrifice your personal life to get ahead in your profession vs. tough guys who say “I’m going to grind while you sleep.”

But what if we’re looking at this all wrong? What if getting more sleep would improve job performance?

Another paradigm: professional athletes

There’s a different profession that takes a fundamentally different view of sleep and job performance: professional sports. Most elite athletes take sleep pretty seriously.

Granted, even in professional sports, there is some celebration of sleep deprivation. This is especially true of NFL quarterbacks. We venerate the QBs who supposedly get to the team facility every morning at 5 am and stay up late at night watching film.

But that’s the exception, not the rule. Most professional athletes understand you can’t stay in peak physical shape on five or six hours of sleep. They also know that getting enough sleep is crucial to mental sharpness. In fact, many professional athletes are almost obsessive about getting an amount of sleep you might consider excessive. Houston Texans superstar JJ Watt reportedly tries to go to bed at 7:30 pm during the season.

Even quarterbacks, the guys we picture staying up until 2 am breaking down defenses, understand this. One NFL quarterback said, “I think sleep is so important because I break my body down so much with my sport.” He said he usually goes to sleep by 9 pm, and even earlier during the season. His name? Tom Brady.

So what if lawyers and other professionals approached sleep and job performance like athletes do?

Unfortunately, the legal profession tends to measure performance by the number of hours worked. This insidious notion is embedded in everything lawyers do. To wit: when law firm accounting software generates a “productivity report,” it’s just a tally of the number of hours lawyers billed. That’s obviously not real productivity.

In contrast, no one really cares how many hours an athlete works ahead of time. Productivity in sports comes down to one thing: winning. And sleep-deprived athletes are not going to win. At least not consistently.

And by the way, athletes are not the only ones who get more sleep. Would you believe that Senior Executives Get More Sleep too?

“Overworked associates of the world, unite”?

Some of you are rolling your eyes. You’re thinking this sounds like just another touchy-feely article calling for “work-life balance” and criticizing big law firms for working lawyers too hard.

But my point is not to take up arms with BigLaw associates against management. Lawyers at big law firms get paid a lot of money and usually know what they’re getting into.

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What if lawyers approached sleep the way elite athletes do?

I’m more concerned with another constituency: clients. Clients are to law practice what fans are to professional sports. They pay the bills, and they suffer when the team doesn’t perform at its best.

When sleep-deprived lawyers bill hundreds of caffeine-fueled hours doing mediocre work, it’s not the clients who benefit. Generally, clients would be better served by razor-sharp mental focus and efficiency.

That’s where the professional athlete paradigm is superior. The application to trial lawyers is obvious. Clients don’t care how many hours you worked leading up to the trial; they want to see you perform your best and win on game day, when it really matters.

But the professional athlete model isn’t limited to trial work. Every significant client “deliverable” is like a mini-game day, whether it’s drafting an agreement, taking a deposition, or arguing a hearing. Instead of racking up hours, lawyers should be focused on winning each game.

Objections to the professional athlete paradigm

So what are the major objections to my proposed paradigm shift? Here are the things I expect lawyers to say.

1. My job is mental, not physical.

An athlete who repeatedly shows up to games physically exhausted is not going to perform well. But admittedly, this is not a perfect analogy. Lawyers don’t have to be in elite physical condition to get their work done. (But see 7 Things Physical Fitness Teaches You About Professional Success.) Their job is primarily mental, not physical.

So, there is a grain of truth to this response, but the problem with it is obvious. Nature doesn’t respect the physical/mental dichotomy the way we do. Your brain is physical, and it’s not going to fire on all cylinders when you don’t get enough sleep.

*UPDATE: Need proof? As Julian Hayes II reported in this Inc. article, one study found that two weeks of sleeping six hours of night decreased cognitive performance as much as not sleeping at all one night.

2. There is no way I can get enough sleep and get all my work done.

Hey, I get it. Sometimes you have 18 hours of work to get done and only 24 hours to do it, whether it’s filing a brief in an appeal or finalizing a contract for a major transaction. Getting a full night’s sleep is just not an option.

But in the long run, is getting less sleep really helping you get your work done?

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Not going to hit my billables this month

Let’s say you typically sleep 6 hours and spend 11 hours at the office. I bet you’re tired and not all that focused during those 11 hours, and you probably waste a couple hours doing unproductive stuff because your mind is weary.

What if you slept one more hour and spent one less hour at the office? I’d be willing to bet that with the energy you gain from one more hour of sleep, you could get the same amount of work done in less time.

3. But there is no way I can get enough sleep and meet my billable hours requirement.

If this is true, then you’re probably working for the wrong law firm. Find a firm that values doing excellent work on time, not filling a billable-hours quota by doing busy work.

4. To get more sleep, I would have to sacrifice family time or some other personal priority.

This is the toughest one. The reality for many of us is that spending more time sleeping would mean no time for coaching our kid’s soccer team, meeting friends after work, exercising, reading, doing a hobby, etc. We don’t want to be robots who do nothing but work, eat, and sleep.

But I’m not necessarily saying you need to sleep more (although you probably do). I’m proposing a change in your mindset. Lawyers and other professionals would improve their job performance—and make clients happier—by thinking less like assembly-line workers and more like professional athletes.

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IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Dallas Cowboys fan who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. 

These are his opinions, not the opinions of his firm or clients. Citations to Tom Brady do not reflect endorsement of the New England Patriots, although a team that wins that many Super Bowls in the salary-cap era deserves a little grudging respect.

Stop Using These Corporate Buzzwords. Except When They’re Effective.

Stop Using These Corporate Buzzwords. Except When They’re Effective.

TexasBarToday_TopTen_Badge_VectorGraphicApt metaphor or annoying corporate buzzword?

Workplace buzzwords. We’ve all heard them. Travis Bradberry, author of Emotional Intelligence 2.0, says you need to stop using them. He provides a list of 25 corporate buzzwords you need to stop saying and gives this absurd example to make the point:

Listen Ray, I don’t have the bandwidth for it with everything that’s on my plate, but ping me anyway because at the end of the day it’s on my radar and I don’t want to be thrown under the bus because I didn’t circle back around on this no-brainer.

What’s the problem with using trendy expressions like these? Bradberry explains with a technical term from clinical psychology: they “annoy the hell out of people.” (You can find out the most hated buzzwords here.)

I agree that overuse of workplace buzzwords is annoying. I also agree that it matters. While trying to sound current and communicate more effectively, you can actually undermine your credibility and sound like a lightweight. Think about a great leader you respect. Does that person use a lot of trendy phrases like “take this offline” and “drill down”?

But I have two reservations about the critique of trendy buzzwords. First, all of us have certain phrases we like to use. Bradberry himself admits a fondness for “low hanging fruit.” Must we give up our favorite expressions just because someone might be annoyed?

Second, the best communicators use metaphors and expressions all the time. The right metaphor can instantly communicate an idea more effectively. Take the “low hanging fruit” example. In just three words it conveys the abstract concept that “we’re going to focus on the tasks that are easily accomplished first, and then we’ll get to the more difficult ones.” Why is that so bad?

This points to the larger question: How do you know the difference between an apt metaphor and an annoying buzzword? Because effective communication is such an important part of my job as a litigator, and because I like to overanalyze things, I will take a stab at answering this question.

Wolfe’s Unified Theory of Expressive Language

Let’s start with a taxonomy of expressive language. Consider these alternatives for saying essentially the same thing:

1. Non-expressive: I will communicate with my client about this issue and then communicate with you again.

2. Clichéd expressive: Let me get on the horn with my client so we can try to put this to bed.

3. Trendy expressive: I will ping my client to touch base and then circle back.

4. Concrete: I will talk to my client about this and then get back to you.

I admit the “non-expressive” example is a little artificial. Hardly anyone talks like that. It sounds like something a robot from a 1950s sci-fi movie would say. But the point is that using literal language sometimes sounds stiff and unexpressive. There’s a reason the instructions for putting together your kid’s swing set are literal while great poetry is metaphorical.

Yes, poetry is nice, but the two “expressive” examples just seem to be trying too hard. They strain to substitute an expression where just saying what you mean would suffice.

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The “clichéd” expressions can be annoying because they are overused. They’ve been around as long as anyone can remember. The “trendy” expressions are even more annoying, because they are overused and trendy. They haven’t been around that long but have suddenly become ubiquitous, like a viral YouTube video.

In contrast, there is nothing irritating about the “concrete” example. It’s not as stiff as the “non-expressive” example, but it gets right to the point, without any overused buzzwords. In most situations, it’s probably the best of the four alternatives.

Also, notice that there is more than one kind of buzzword. Some, like “move the goalposts,” express an abstract concept in concrete terms,  Others just substitute a trendy word for an ordinary one, such as “ping” instead of “email.” Or they use a fancy word like “synergy” to make something sound more complicated than it really is.

Five Buzzword Commandments

Manners and other social conventions cannot be easily reduced to logical rules. If they could, a show like Seinfeld wouldn’t be so funny. But I’m a lawyer, so I like rules. What rules can we take away from this analysis of workplace buzzwords?

First, the most annoying buzzwords are the ones that merely substitute a trendy term for an ordinary one. These terms don’t add any value. In contrast, an expression like “elephant in the room” at least adds some value by quickly conveying an abstract concept. (Plus, any expression George Washington uses in Hamilton is ok by me.)

The problem, of course, is that even the most apt metaphor can become clichéd through overuse. This gives us the second rule: stop using an expression when you see that everyone else is using it too much.

Third, trendy expressions are generally worse than traditional clichés. For example, compare “hit the ground running” with “I don’t have the bandwidth.” Both of these have become clichés. But “hit the ground running” has been around so long—and expresses the concept so effectively—that it has become a basic part of the language. In contrast, “I don’t have the bandwidth” is just annoying. You could just say “I’m too busy.”

The fourth and probably most obvious rule is that you should use expressions in moderation. Even the trendiest buzzword can be effective if used sparingly. Just don’t overdo it.

Wait a minute, some of you will say. Why should I care so much about what other people think about the way I talk? Using trendy expressions is just how I roll. Why should I change my style just to fit someone else’s narrow conception of effective communication?

Ok, I respect that. If using trendy metaphors is part of your DNA, then don’t stop. Just don’t start talking like that because you think it will make you sound clever. If these phrases don’t come naturally, you will sound even more ridiculous when you strain to use them.

In other words, the fifth rule is to be yourself. At the end of the day, that’s a no-brainer.

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Zach Wolfe (zwolfe@fleckman) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. 

He often writes about issues in departing employee litigation, but this time he decided to think outside the box.

7 Things Physical Fitness Teaches You About Professional Success

7 Things Physical Fitness Teaches You About Professional Success

It turns out people can change

I’m sure you’ve seen those articles about the health benefits of physical fitness. They have headlines like “Researchers Find That People Who Exercise Live Longer.” You wonder if the study was commissioned by the University of the Obvious.

This is not one of those articles.

I’m not here to convince you that you need to exercise to be healthy, or to make you feel bad if you don’t get up at 4:30 every morning to go for a 10-mile run.  You already know exercising is good for your health, even if you have one of those bumper stickers that says “0.0.”

The point I want to make is that you can learn a lot about professional improvement by making a serious effort to improve your physical fitness. You could also “learn” these things from reading some self-help articles, but sticking to a serious physical fitness regimen teaches these lessons in a more concrete way that will stick.

So what will you learn?

1. Discipline isn’t always rational

You know it will take discipline to go from struggling to jog around the blog to running a seven-minute mile, but people often misunderstand the nature of discipline.

The problem is that we tend to think of reason and discipline as allies. After work, you would rather sit on the couch and watch Fresh Prince reruns than go for your daily run. You try to overcome your laziness by reasoning that you won’t reach your goal by the end of the year if you don’t go on that run.

Swimmer

But here’s the problem: you’re reasoning is wrong. From a purely rational perspective, skipping that one run will not materially affect your long-term goal. If you’re trusting your rational mind to get you to run, it will fail you.

You need to enlist passion on the side of discipline. Emotion says, “get off that couch, lazy!” You need an ethos of discipline fueled by pride, not by logic.

Make a schedule for when you’re going to exercise and get almost fanatical about staying on the schedule. Your friends, family, and co-workers may think you’ve joined a cult, but your new schedule will become a habit. And habit is stronger than reason, whether the goal is doing handstand pushups or getting more clients.

2. If it’s not fun you won’t stick with it

Unfortunately, your new obsession with discipline will only take you so far. If running isn’t fun for you, then you’re not going to do it consistently. I don’t mean it needs to be fun every time you do it, or that it should be easy and care-free. But at some level you have to enjoy the kind of exercise you do, or you won’t keep doing it.

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So if you don’t like running, then find some other kind of exercise you enjoy. Lift weights, do Pilates, play basketball, ride a bike, whatever.

The same thing is true in your professional life. Let’s say your goal is doing more public speaking, but after several attempts you still just hate it. Stop and reconsider. Maybe you don’t really need to do that. Perhaps there is some other professional goal you could pursue instead. Like learning to clear a paper jam.

3. Improvement is gradual

So now you’ve found a “fun” exercise program you follow like your life depended on it. In six weeks you’re sure to look like a fitness magazine cover model, right? Well no, of course not. You probably will notice some difference within six weeks, but reaching your goals will take longer.

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Don’t get frustrated when you don’t see the results you want immediately. Celebrate the small victories and stick to the plan. Your fitness level will improve. It just takes time.

Professional improvement usually works the same way. If you have no management experience, for example, don’t expect to become a great manager overnight. Focus on improving your skills a little each day.

4. Don’t skip rest day

Once your fitness activity has become a habit and you start to see results, you may get a little greedy. You’ll tell yourself, “I lifted weights three times a week for two months and got stronger, so if I do it six times a week my results will be twice as good, right?”

Don’t get caught in that trap. Most good exercise programs have rest days. Lately I’ve been following the daily workouts posted by crossfit.com. It’s three days on, one day off. Sometimes I’m tempted to exercise on the rest day because I’m impatient to improve my results. But skipping the rest day is a mistake.

Koala sleeping

In physical fitness, the rest day has both physical and mental benefits. The physical benefit is obvious. Your muscles need that rest time to rebuild. But the mental benefit is even more important. When you take a day off, you come back the next day with greater mental sharpness.

Taking the “rest day” is just as important in our careers. We think that if we work more nights and weekends, we’ll get ahead faster. Sometimes putting in that extra time does pay off, or it’s just something we have to do. But don’t think your job performance will improve simply by working more. Routinely skipping your time off will cause you to lose mental focus, which will undermine your performance, not improve it.

5. Learn to deal with setbacks

Injuries from exercise are especially demoralizing because you feel like you did something to get stronger, and instead it made you weaker. And it may take you weeks or months just to get back to where you started.

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Hmm. Has anything like that ever happened in your professional life? Maybe you took a new job hoping it would improve your career, but you got laid off six months later. Or you took on a new responsibility at work, only to be thrown under the bus when it went south.

Coming back from an injury teaches you something about overcoming setbacks. You learn that it takes even more discipline and determination to recover from an injury. But if you stick to the plan, you will come back stronger than before.

6. You’re not too old

First the bad news. If you are an NFL running back, you are probably “over the hill” by your 30th birthday. Your body has taken such a pounding that it just can’t do what it used to do. You can’t burst around the edge for a first down the way you used to.

Unless you’re Emmitt Smith, who ran for an incredible 18,355 yards over a 15-year career.

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But the good news is that most of us are not NFL running backs, or any kind of professional athlete. Unless you were an elite athlete in college, you can probably get in the best physical shape of your adult life in your 40s, 50s, and beyond. Yes, it gets harder, but it can be done.

And if age doesn’t prevent you from improving your physical fitness, then you know it can’t prevent you from improving your other skills. There is no reason getting older should stop you from becoming a better public speaker, a better salesman, a better manager, etc. You can even learn how Twitter and Periscope work.

Which leads me to . . .

7. People can change

If you have a daughter in the 10-18 year age range, you probably know the line “we aren’t saying you can change him, ‘cause people don’t really change.” And if not, you’ve still encountered the sort of pop psychology that says after a certain age people don’t really change.

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But physical fitness teaches you this isn’t necessarily true about skills and talents.

Recently I decided at the last minute to run a five-mile race. I didn’t win any awards, but as I ran the course, I realized running five miles without doing any specific training for it was pretty easy for me. (This is what the kids call a “humble brag”).

Here’s the cool thing. Ten years earlier, it was a challenge just to run three miles without stopping. But since then I had done a lot of running, biking, strength training, you name it.

That’s when it really hit me. People can change. And they can learn a lot in the process.

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Zach Wolfe is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC.

Rumors that he recently injured himself attempting to clean and jerk his own body weight are exaggerated.

The Five Goal-Setting Mistakes You Must Avoid

The Five Goal-Setting Mistakes You Must Avoid

Confessions of a Recovering “Goal-aholic”

“What are your New Year’s resolutions?” When I hear that question, I want to say, “I don’t make New Year’s resolutions, I just set goals.” That would ring true, but it would also make me sound like kind of a jerk.

Better to quote a gentleman who was most definitely not a jerk, but highly successful. Tom Landry was the “Dean of NFL Coaches” in his day. He had a record-setting 20 consecutive winning seasons and took his team to five Super Bowls. He said this: “Setting a goal is not the main thing. It is deciding how you will go about achieving it and staying with that plan.”

I can’t improve much on that goal-setting advice. You can Google all kinds of material explaining why setting specific written goals is generally a good thing. Breaking down the goals into specific action items on a monthly, weekly, and even daily basis is even better.

But I will be the first to admit that setting annual goals and making specific plans to achieve them doesn’t always go the way you planned. It can leave you feeling discouraged when you repeatedly fail to meet the goals you so painstakingly outlined.

I should know. I’ve been there. You might even say I’m a recovering “goal-aholic.”

At one time I was almost obsessive about keeping detailed goal spreadsheets broken down by category, month, and week. It didn’t really work out. Too many times, my frazzled self would just put off that week’s goals to the next week, or just ignore them. At one point I got frustrated enough that I just stopped bothering with the written goals entirely.

But my goal-setting mistakes can be your goal-setting lessons. Here are my top five goal-setting mistakes and what you can learn from them.

1. Setting too many goals

Specific, measurable goals are usually better than general goals. So, rather than making it a goal to “get in better shape this year” you might make it a goal to “do 15 pull-ups in a row,” “run a mile under 8 minutes,” etc. You might even break these down into smaller goals, like “do 10 pull-ups by April 1,” etc.

healthy-person-woman-sport
When you set too many goals, you lose focus

But when you make too many specific goals, you lose focus. I got to the point where I had so many different goals in different categories that it diluted my mental focus too much. I got burned out on the goal setting and tossed the whole list.

Now, for 2017, I’m rebuilding with a more focused list. Experts say don’t weigh down your list with goals you don’t really care about. My own list is still longer than any sane human being should have, but I have tried to eliminate anything unnecessary or unrealistic.

2. Setting goals that are really just things you have to do or like to do

Speaking of unnecessarily cluttering your goal list, I realized that one problem with my goal-setting was that many of the goals I would routinely check off as accomplished were just things I either had to do or liked to do.

For example, I like exercising. It’s actually fun for me. (Don’t hate me, there are probably productive things you like to do that I don’t like.) So making a goal like “do CrossFit five times a week” is not that helpful for me. It’s something I’m going to do anyway.

There are other things I don’t necessarily like to do but must do whether I like them or not. For example, “respond to all discovery requests on time” is certainly a good practice for a lawyer who handles litigation, but it’s not the kind of thing that belongs on a list of goals. I know that one way or another, I’m not going to miss a deadline like that.

So get rid of things on your goal list that are just things you like to do anyway, or that you already know you have to do. Because the main point of your goals is to help you stretch to do things you wouldn’t naturally do. To get out of your “comfort zone,” as they say.

3. Setting goals that are not realistic

While I have sometimes gone wrong by padding my goal list with tasks I know I’m going to accomplish anyway, I have also made the common mistake of setting unrealistic goals.

It’s easy to do this, especially with self-help gurus telling you to dream big, shoot for the stars, etc. The idea is that you need something grand to inspire and motivate yourself. Don’t get me wrong. I like the idea of setting a bold, audacious goal as much as the next guy. But the hard reality is that there is a big difference between a dream and a goal.

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Don’t ignore reality when setting your goals

You want to set a goal that is difficult enough to require some striving, like “invent the flex defense.” But you don’t want it so unrealistic that it becomes a joke, like “securing the border” or “winning the war on drugs” in politics. If your football team’s record was 1-15 this year, setting a goal of winning the Super Bowl next year is probably not productive. How about setting a goal to have a winning season next year? Still difficult, but not impossible.

So go ahead, hold on tight to your dream. But don’t confuse your dream with your goals. Look at your goals as the building blocks for achieving your dream.

And don’t beat yourself up when you don’t meet every goal. I bet you performed better than if you had set no goals at all.

4. Not setting aside time to work on your goals

So many times I would come to the end of the week or month and find I had neglected many of my goals. The problem was that I did not set aside time to work on those goals. This mistake is the most obvious, but also the most common. Like that song says, “the hardest to learn was the least complicated.”

I like my advice of setting goals that are not things you already have to do, but one downside of this approach is that it allows you to procrastinate. If your goals are discretionary—if they are things you are not required to do—then it will be easier to put them off when you get busy. And you will always be busy with something.

Achieving goals takes work, and work takes time. If you don’t set aside time to work on your goals this week, you will probably put them off until next week. And then next month. And so on.

So take some time each week to review your goals, and block out time on your calendar to work on them. Simple, right?

5. Setting goals that are largely out of your control (?)

This one has a question mark by it because I’m still on the fence. But I’m leaning to one side.

A perennial goal-setting dilemma is whether to include goals that you can’t really control, or to stick to the things that, even if they are difficult, are largely under your control.

I say “largely,” because God has a way of reminding you that nothing is totally under your control. Like John Lennon sang, “life is what happens to you while you’re busy making other plans.”

I got this reminder big time in 2016 when I was briefly hospitalized (it turned out fine). Sometimes people have to take time away from work to care for a sick child, or an aging parent. They get laid off. Someone accidentally trips you as you were about to cross the finish line and qualify for the Olympics. Your B-17 bomber runs out of fuel over occupied France. Stuff happens.

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Focus on goals you can control

But most of the time you can set goals, even ambitious ones, that are largely under your control. If I set a goal to “do a blog post on Five Minute Law once a week in 2017,” it may be a lot of work, and it may be difficult, but barring a major crisis it’s an action I can control. On the other hand, if I set a goal to “get a new client every quarter in 2017,” there is a lot I can do to make that result more likely, but I really can’t control it.

Similarly, if my goal is “exercise three times a week,” I can usually control that, but if my goal is “do 10 handstand push-ups in a row by the end of the year,” that’s harder to control. Genetics and age may limit my results no matter how hard I work.

It comes down to the difference between process goals and results goals. The process is largely under my control. The results? Not so much.

So I say focus on the process, and the results will tend to take care of themselves. Smarter people who have actually researched this stuff agree with me (see Big Goals Can Backfire).

But that question mark still lingers. If I don’t pay attention to results, how will I know if my process is working? If I don’t set some results goals, what is my motivation to do the hard work to meet the process goals week in and week out? So maybe a few result goals are ok. I don’t know. I wish I could ask Coach Landry.

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Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. His long-term goal is to play the lead role in a production of “Hamilton.” Or maybe that’s more of a dream.