The Sunk-Cost-Fallacy Fallacy

The Sunk-Cost-Fallacy Fallacy

Donald Trump made news when he suggested it might be time to pull American troops out of Afghanistan. U.S. military forces have been there about 18 years. That’s an easy number for me to remember because my daughter is 18 years old. She was born in 2001. Then 9-11 happened, and I’m kind of glad she wasn’t old enough to remember it.

Going into Afghanistan seemed like a no-brainer at the time. The Taliban controlled Afghanistan and were harboring Al-Qaeda. It seemed the only people who opposed President George W. Bush’s decision to send U.S. troops into Afghanistan were the kind you can count on to oppose virtually any U.S. military action (far left with a sprinkle of libertarian types). In the wake of the worst attack on American soil in my lifetime, W’s approval rating was high even among Democrats.

Of course, that didn’t last. Opinions on the Iraq war were more divided, and today it seems there is a broad consensus that Iraq was a mistake. Not only that, people are even questioning whether it makes sense to stay in Afghanistan. Eighteen years later the Al-Qaeda threat looks significantly diminished, yet Afghanistan seems like an endless quagmire.

More traditional hawks tend to reject this Afghanistan revisionism. If we leave Afghanistan now, aren’t we admitting that going in to get Bin-Laden and Al-Qaeda was a mistake? After all the dollars spent and American lives lost, how can we just give up?

This, of course, is the Sunk Cost Fallacy. It’s primarily a principle of economics, but it applies in a wide range of scenarios. The idea is that in deciding whether to spend additional money or resources on a project that is in progress, a rational actor should consider whether the future benefits are likely to outweigh the future costs. It is a fallacy to consider costs incurred in the past—the “sunk” costs—because there is nothing you can do to change them.

In other words, it’s a fallacy to continue pursuing a venture that is not going to be profitable on the ground that you’ve already invested time and money in it.

Sound familiar, litigators? If you have any experience with litigation, you have probably experienced the sunk-costs fallacy firsthand. Let’s consider an example from my favorite hypothetical lawsuit, Paula Payne Windows v. Dawn Davis.

The Sunk Cost Fallacy in Litigation

Dawn Davis was the top sales person at Paula Payne Windows, but she became disgruntled when her business development budget was cut and she couldn’t do her annual trip to Vegas with her best customers. So she accepted a job offer from Paula Payne’s fierce competitor, Real Cheap Windows.

Then Paula Payne sued Dawn, claiming breach of contract and misappropriation of trade secrets. But the judge thought the non-compete was too broad and denied Paula Payne’s motion for a temporary injunction.

Six months later, Paula Payne had obtained no relief and spent over $50,000 on legal fees. Documents produced by Real Cheap showed that Dawn had brought several customers to Real Cheap, generating about $100,000 in revenue. Paula Payne’s CFO estimated that Paula Payne would have made about $20,000 in profit on those sales if the customers had stayed with Paula Payne.

“Paula, we’ve got to make a decision,” the company’s lawyer said to the founder and CEO. “Our trial date is only six months away,” he said, “and we need to hire a CPA as a damages expert.” And here’s the kicker: “I know a good one we can use, but he’ll need a deposit of $15,000.”

Paula grimaced. “Ok, and how much are your fees going to be from now through the trial?” she asked. “Hard to say,” her lawyer said, “but you’re looking at paying us at least another $50,000.” “So you may want to think about settling,” he said, “especially considering your damages may be less than $50,000.” He added that Real Cheap’s lawyer already indicated Real Cheap would be willing to do a walk-away settlement.

“No way,” Paula shot back. “What was the point of suing Dawn and Real Cheap and paying you $50,000 if I’m just going to quit now?”

And there it is. The Sunk Cost Fallacy. A rational business person would coldly look at the cost of going forward (around $65,000), the potential benefit (let’s assume a recovery of around $50,000), and the chance of success. Even assuming a better than even chance of success, it looks like the smart move for Paula Payne would be to settle for whatever she can get, or even to walk away.

The Sunk-Cost-Fallacy Fallacy

But of course real people—even sophisticated business people—don’t think like that. It doesn’t feel right to spend $50,000 on a project and then decide to shut it down. It’s easy to understand that emotion.

If want to put it in economic terms, you could say there is a psychological cost to giving up on a venture when you have already invested your time, money, and energy in it. The mental pain that Paula will feel if she quits is real, and in theory you could assign a dollar value to it. Isn’t that similar to what juries do when they consider “mental anguish” damages?

When you take that pain into account, then maybe the economic critique of the Sunk Cost Fallacy is itself a fallacy. The economic problem with the critique is that it doesn’t take all of the relevant costs into account.

Putting aside economics, there’s a more practical problem for Paula Payne’s lawyer. If he approaches the issue from purely an economic standpoint, he’s going to under-appreciate the importance of Paula’s emotions, and he won’t have a happy client. In other words, presenting the issue to Paula as purely dollars and cents doesn’t reflect high “emotional intelligence.”

It turns out there is a second principle at play: the Sunk-Cost-Fallacy Fallacy. It’s a fallacy to think that a client who has sunk costs should make decisions based purely on a rational assessment of the future economic costs and benefits. After all, Paula’s not a robot. In the words of Bob Schneider, she’s only blood and bones.

The First Law of Holes

Let’s assume that Paula Payne’s lawyer gets that. He has high emotional intelligence and is aware of the Sunk-Cost-Fallacy Fallacy. That means he will not be too quick to dismiss Paula’s objection that she has already spent $50,000 on the lawsuit. He will understand that for Paula, simply giving up is not an option, even if walking away makes economic sense. He will “feel her pain.”

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I’m fixing a hole, where the rain gets in

So, full speed ahead! Forget the fact that Paula Payne may have to spend over $65,000 on lawyer and expert fees to go to trial on a $40,000 lost profits claim. At least she’ll be able to look herself in the mirror and know she stood up for the rights of her company. Right?

Maybe. But here’s the problem. Chances are, the case is still going to settle. I’ve taken a non-compete case to trial before, but it’s rare. A trial of any kind of case is rare. Nine times out of ten (or more), it’s just a question of when the case settles, and for how much.

Let’s assume that six months in, Paula Payne Windows decides to keep moving forward. Then she spends another $30,000 on legal fees over the next three months. At that point, Real Cheap offers $20,000 to settle the case. Now Paula has an even more difficult decision. Settling is going to be even more painful because now she’s spent over $80,000.

This brings us to a third principle: the First Law of Holes. The First Law of Holes says when you find yourself in a hole, stop digging.

Yes, the pain of walking away after spending a lot of money is real. But that pain is only going to increase after you’ve spent even more money. In our hypothetical, Paula would have been better off—and probably felt better about the outcome—if she had stopped digging at the six-month mark.

So we’ve come full circle. In a sense, the First Law of Holes is just a version of the Sunk Cost Fallacy. But the First Law of Holes brings home the crucial point that sunk costs keep increasing. Better to cut your losses now than later.

That doesn’t necessarily mean the U.S. was wrong to go into Afghanistan, or that Paula Payne made a mistake when she decided to sue Dawn Davis and Real Cheap Windows. She understandably felt she had to do something to protect her company. And it is not to say that business people should never press forward with a lawsuit. Then I would be out of a job.

But whether we’re dealing with litigation, foreign policy, or day-to-day business decisions, we should be self-aware enough to recognize when the Sunk Cost Fallacy is tugging at our heart strings. Even if it’s just human nature, we should resist that pull. And sometimes the right decision will be to stop digging.

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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.

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.

Do Narcissists Make Better Lawyers?

Do Narcissists Make Better Lawyers?

In Book III of his Metamorphoses, the ancient Greek poet Ovid tells the story of Narcissus, the child of a naiad, Liriope, and the river-god Cephisus. Narcissus was “most beautiful” but had a “pride so fierce no boy, no girl, could touch him.”

One day a rejected youth prayed for Narcissus to get his comeuppance, and Nemesis, the Goddess of Vengeance, “judged the plea was righteous.” So she cursed Narcissus to fall in love with his own reflection in a pool. Narcissus endlessly stared at the pool, even pressing his lips to the water to kiss his own image. But “the vision is only shadow, only reflection, lacking any substance.”

Eventually, Narcissus figured out what was going on: “The truth at last. He is myself! I feel it, I know my image now. I burn with love of my own self; I start the fire I suffer.” But it was too late. “As the white frost is gone in morning sunshine, Narcissus, in the hidden fire of passion, wanes slowly . . . fading away.”[1]

This of course is the origin of the Klingon expression “revenge is a dish best served cold.” See Star Trek II: The Wrath of Khan (Paramount 1982). It’s also where we get the term narcissism, which Webster’s defines as “excessive interest in or admiration of oneself and one’s physical appearance.”

Narcissistic personality disorder

The Greek myth of Narcissus is also the origin of a modern medical term: Narcissistic personality disorder. As with any psychological condition, it is largely a matter of degree, and there is no single dispositive factor.

But while there is no single defining characteristic of narcissistic personality disorder, the Mayo Clinic publishes this list of symptoms. I’ve grouped them into four categories:

  1. What a narcissist thinks about himself
  • “Inflated sense of their own importance”
  • “Have an exaggerated sense of self-importance”
  • “Have a sense of entitlement”
  • “Believe they are superior and can only associate with equally special people”
  • “Fragile self-esteem that’s vulnerable to the slightest criticism”
  1. What a narcissist desires from others
  • “Require constant, excessive admiration”
  • “Expect to be recognized as superior even without achievements that warrant it”
  • “Expect special favors and unquestioning compliance with their expectations”
  • “Insist on having the best of everything – for instance, the best car or office”
  1. How a narcissist feels about others
  • “Lack of empathy for others”
  • “An inability or unwillingness to recognize the needs and feelings of others”
  • “Envious of others and believe others envy them”
  1. How a narcissist treats others
  • “Troubled relationships”
  • “Exaggerate achievements and talents”
  • “Monopolize conversations and belittle or look down on people they perceive as inferior”
  • “Expect special favors and unquestioning compliance with their expectations”
  • “Take advantage of others to get what they want”
  • “Behave in an arrogant or haughty manner, coming across as conceited, boastful and pretentious”

One more thing. Narcissists tend to be of a certain gender. But I won’t open that can of worms here.

I just want to distill the essence of narcissism and figure out if being a narcissist makes one a better lawyer. Because I’m a lawyer, and I like distilling essences.

I think the essential features of a narcissist are the same flaws the mythical Narcissus had: excessive self-love and excessive pride. In the workplace, these essential features of narcissism manifest as (1) an excessively high opinion of one’s abilities in relation to others and (2) excessive concern for getting credit from others.

Now that we’ve got a more precise working definition of narcissism, we can figure out if narcissists make better lawyers.

Are narcissists better lawyers?

The short answer is no. I don’t think narcissists make better lawyers.

But all else being equal, I’d bet that narcissists make more successful lawyers.

I posed a similar question in my post Are “Aggressive” Litigators More Effective? In both cases, the difficulty is disentangling the trait at issue from other traits that tend to coincide with it.

So first let’s separate narcissism from some positive traits it often accompanies: ambition, drive, boldness, to name a few. Those things can make you a more effective lawyer, but you can have them without being a narcissist.

So the question becomes: is a narcissist likely to be a better lawyer all else being equal? Assume two lawyers have the same experience, talents, and intelligence, but only one of them is a narcissist. Would you pick the narcissist to be your lawyer?

When we put it this way, I say no, for three reasons.

First, the narcissist’s inflated sense of self-importance is not helpful to the kind of work lawyers typically do. Despite what you see in movies and TV shows, good lawyering is not all bluster and bluffing. It takes discipline, organization, and diligence. The lawyer who thinks he’s hot shit—pardon my French—is less likely to be patient and methodical.

Second, narcissists just rub people the wrong way. A pompous or arrogant lawyer is usually a less persuasive lawyer.

Third, at the risk of mixing ancient Greek metaphors, lack of empathy is the narcissist’s Achilles’ heel. This is not to say that narcissists don’t get what makes people tick. I would bet the narcissist is better than most at understanding how to manipulate people. But the narcissist doesn’t really understand—or care—how other people feel. And that’s a big disadvantage. Excellent lawyers have a keen ability to put themselves in the other guy’s shoes.

But if I’m right, why does it seem like so many successful lawyers are narcissists?

Adam Grant may have some answers. He’s the top-rated professor at the Wharton School of Business and has written extensively on personality types in business leadership. In his article Tapping into the power of humble narcissism, Grant says “narcissists are more likely to rise up the ranks of the corporate elite and get elected to political office.” He chalks this up to the fact that people are drawn to the confidence that narcissists exude.

So should we strive to be more narcissistic to get ahead? Not necessarily. Grant touts a kinder, gentler version of narcissism: “Humble narcissists bring the best of both worlds: they have bold visions, but they’re also willing to acknowledge their weaknesses and learn from their mistakes.”

Makes sense to me. But to paraphrase another ancient text, what does it profit a man to be a narcissist, if he loses his own soul? On this question I think it’s useful to consult another ancient Greek, one who is less entertaining than Ovid, but perhaps more insightful.

Is narcissism a character virtue?

In his bestselling Nichomachean Ethics, Aristotle doesn’t address narcissism per se, but he does discuss vanity.

Vanity comes up in the course of Aristotle examining the major character virtues. Aristotle sees each virtue as a mean between two opposite vices. So, for example, with respect to how one responds to danger, the two extremes are cowardice and foolhardiness. Courage is the golden mean between them.

When it comes to claiming external rewards for oneself, vanity is the obvious vice:

Vain people . . . are foolish and do not know themselves; and they make this obvious. For they undertake commonly honored exploits, but are not worthy of them, and then they are found out. They adorn themselves with clothes and ostentatious style and that sort of thing; and since they both wish for good fortune and wish it to be evident, they talk about it, thinking it will bring them honor.

It’s easy to understand why vanity is a vice. But what’s the opposite of vanity? Aristotle uses a word usually translated as “pusillanimity,” which means timid or cowardly, but that’s really not the opposite of vanity, is it?

No, we don’t have a simple modern English word for the opposite of vanity. And that tells us something: we don’t think of the absence of vanity as a character flaw.

Aristotle, on the other hand, thought failing to claim the honor you deserve is a real character defect:

For the pusillanimous person is worthy of goods, but deprives himself of the goods he is worthy of, and would seem to have something bad in him because he does not think he is worthy of the goods. Indeed he would seem not to know himself; for if he did, he would aim at the things he is worthy of, since they are goods. For all that, such people seem hesitant rather than foolish.

But this belief of theirs actually seems to make them worse. For each sort of person seeks what [he thinks] he is worth; and these people hold back from fine actions and practices, and equally from external goods, because they think they are unworthy of them.

While we don’t tend to fault people for a lack of vanity, we can at least grasp Aristotle’s point. We see a version of this idea in contemporary self-help advice for professionals, especially women. See, for example, the bestseller Knowing Your Value: Women, Money, and Getting What You’re Worth by Mika Brzezinski.

So, while we don’t like vanity, we understand why hesitating to claim the “external goods” you are worthy of is a problem.

But don’t most people–men and women–have the opposite problem? You see this sentiment in the clichéd lament that Millennials are too “entitled.” And it’s not just Generation Y. It feels like it’s human nature to claim more than you deserve, not less. So you’d think vanity would be more common than pusillanimity, and worse.

But surprisingly, Aristotle says precisely the opposite. He claims that pusillanimity arises more often, and is worse.

To understand why, consider what lies between vanity and pusillanimity. Remember, Aristotle defines each character virtue as a mean between two vices. In this case, the Greek word for the mean between vanity and pusillanimity is megalopsychia.

This word is often translated as “magnanimity,” which Webster’s defines as generous or high-minded. A more literal translation is “greatness of soul” (megalo = great, psychia = soul). This better captures what Aristotle means, but “great-souled-ness” is kind of awkward, so I’ll stick with “magnanimity.”

“The magnanimous person,” Aristotle says, “seems to be the one who thinks himself worthy of great things and is really worthy of them.” So far, this sounds ok to our modern ears, though maybe a little elitist.

But then Aristotle goes a step further. The thing the magnanimous person is most concerned about claiming is honor, “the greatest of the external goods.” “Hence the magnanimous person has the right concern with honors and dishonors.”[2]

Now he’s gone too far. This “magnanimous” person sounds a little, dare I say, narcissistic.

Today the prevailing attitude about claiming  honor is more egalitarian. Yes, we want people who have traditionally been oppressed to claim more external rewards. Know your worth! But at the same time, we bristle at the notion of “great” people claiming great honors. Who do they think they are?

I have to admit my bias tends to run in this direction too. But that’s all the more reason to ponder Aristotle’s view that magnanimity is a virtue and pusillanimity a greater vice than vanity. If you’re hard-wired not to make a big a deal about your own accomplishments, maybe you’re not “living your best life.” You may need to compensate by watching how successful narcissists do it.

Learn how to claim credit. Just don’t stare too long at your own reflection.

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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. His fragile self-esteem is vulnerable to the slightest criticism.

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] Translation by Rolfe Humphries (Indiana University Press 1983).

[2] Translation by Terence Irwin (Hackett 1985).

The Problem With “The Most Successful People”

The Problem With “The Most Successful People”

There is a story about a lady at a dinner telling President Calvin Coolidge she had wagered she could get the President to say more than three words. Silent Cal’s famous response: “you lose.”[1]

More about Coolidge later.

Over the summer you may have noticed that social media was abuzz with “the most successful people I’ve met” posts. Apparently it started with this tweet from a guy calling himself Pomp:

Pomp.png

Naturally this led to people posting their own lists. These fell into two categories: (1) earnest attempts to make a better list and (2) parodies.

Some parodies were funnier than others, but with thousands of people weighing in, the funniest ones were pretty darn funny. Twitter at its best.

I didn’t have an immediate tweet of my own, but my thoughts on “successful people” eventually morphed into a blog post called Successful Blogger Shares Secrets of Morning Routine. It was classic me: half-joking, self-deprecating, not really that funny.

But now I want to share my serious, deeper thoughts about this “habits of successful people” thing. If you’re like me, you probably want to be “successful” (whatever that means), and you like good tips on how to succeed. So does the recent “successful people” episode have any lessons of real value?

Let’s start with the list that kicked off the tweetstorm. It’s easy to make fun of it, and I am not above doing that, but does it contain any true insight?

This is a tough one. The most profound truths are often the simplest and most obvious. That means there is often a fine line between the profound and the banal. Or in the words of David St. Hubbins, “it’s such a fine line between stupid and clever.”

So let’s start by giving Pomp his due. We can concede that it’s good to do the things on his list. We can even acknowledge that most successful people do most of those things.

Now, with that out of the way, let the snark begin.

Many people pointed out the fact that successful people often have a head start:

Lucky.png

Others highlighted the fact that “successful” people can be selfish jerks:

Jerks.png

And some redefined success to favor cats and fuzzy fictional children’s characters:

Eat honey or marmalade

But for me, the funniest ones were the absurd non sequiturs:

Hamburglar.png

Jokes aside, there are also serious critiques. For one thing, many traits people put on these lists are tautological, i.e. true by definition. Saying that successful people “build great teams” or “demand excellence” is only slightly more insightful than saying “successful people tend to be very successful.”

But there’s a more fundamental problem. This tweet pointed it out:

Survivorship Basis.png

Survivorship bias is the logical fallacy of looking at the characteristics of people who survived some selection process and ignoring the people who did not. It is a form of selection bias.

Selection bias provides a meta-critique of the whole idea of identifying traits of successful people. When we select successful people and leave out unsuccessful people, we fail to make a comparison that would be useful. Plus, when we decide which successful people to study, we effectively predetermine which characteristics make one successful.

A trivial (?) example that makes the point: highly successful entrepreneurs who wear the same thing every day. Steve Jobs and Mark Zuckerberg did it and built multi-billion dollar empires. But wearing your sleeveless Def Leppard shirt and cargo shorts every day probably won’t guarantee success. Just like wearing the same white shirt and blue suit won’t make your YouTube series on non-compete litigation a viral sensation. Hypothetically.

This gets to the correlation versus causation problem. Let’s take another example. Does working out every day cause you to succeed? Or perhaps highly successful people have some other characteristic that explains both why they make partner at age 29 and the fact that they never miss their 5 am spin class.

If you really wanted to be scientific about it, you would identify a certain habit—such as reading a book every week—and you would compare a randomly selected group with that habit to a randomly selected group without that habit. Ideally, each group would be exactly the same but for that one characteristic. You would then see if the book-reading group was more successful than the group that watches The Bachelor every week.

Of course, this is virtually impossible to do in real life, which is why social science will never be as “scientific” as laboratory science.

No, understanding the secrets to success requires wisdom, not double-blind clinical trials. The scientific method has its limits.

And while the average individual is not very wise, there is a certain collective wisdom that can emerge from a community. Case in point: the nuggets of wisdom that can be panned from all the “successful people” parodies in the Twitterverse.

Just to name a few:

  • Many factors go into success
  • Success is not entirely within your control
  • Many successful people were born into wealth or privilege
  • People succeed by being in the right place at the right time
  • Some people achieve success through immoral, unethical, or illegal means
  • Successful people can have negative or self-destructive traits in addition to their positive ones
  • Sometimes the negative traits of successful people are inextricably intertwined with the positive ones (Nietzsche said, “Be careful, lest in casting out your demon you exorcise the best thing in you”)
  • Imitating the traits of successful people doesn’t guarantee you will succeed
  • “Success” isn’t everything

Wait a minute. One of these nuggets is not like the other. The last point—success isn’t everything—calls into question the whole premise.

This leads us to the most profound truth to emerge from the “most successful people” memes. The most successful people define “success” on their own terms.

If you define success as becoming a billionaire, a professional athlete, or a rock star, then your chances of success are pretty low. But if “success” for you means loving your friends and family and treating people well, your chances increase.

This is undoubtedly true, but it kind of dodges the question. What if we change the question to “what practice will help you succeed in your business or career?” That’s less important than “what is a meaningful life?” but still important.

And that brings me back to Calvin Coolidge. Here’s something we know he really said:

Nothing in this world can take the place of persistence. Talent will not: nothing is more common than unsuccessful men with talent. Genius will not; unrewarded genius is almost a proverb. Education will not: the world is full of educated derelicts. Persistence and determination alone are omnipotent.

My dad shared this quote with me years ago, and aside from the political incorrectness (we wouldn’t say “men” and “derelicts” today), it’s pretty good advice.

It’s also a great example of what I call “dad” advice. I don’t necessarily mean advice from my dad, and dad advice could come from anyone (including a mom). Personally, I’m more prone to make a dad joke than to give dad advice, but I have two kids of my own now, and on occasion I find myself dispensing some dad advice.

Dad advice has two main characteristics: (1) it’s somewhat obvious, and (2) it’s not fun.

Obviously, if you want to build wealth then you should save more and spend less. Obviously, if you want to lose weight you should eat healthier foods and exercise. Obviously, you do not want to emphasize the fourth when playing over a major seven chord.

This is dad advice. It’s kind of a downer.

If it wasn’t obvious, it would come from an expert, like Tony Robbins, not your dad. If it was fun, everyone would do it.

Persistence is like that too. It’s boring. But here’s the good news: it works. Recently I had a small but significant achievement that resulted from a couple years of steady effort. It really brought home to me the importance of persistence.

So yeah, the most successful people I’ve met are persistent. And most of them don’t wear the same thing every day.

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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. “Nietzsche says, out of chaos comes order.”

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

[1] The “you lose” story is probably apocryphal, but like most great stories, if it didn’t really happen it should have.

Successful Blogger Shares Secrets of Morning Routine

Successful Blogger Shares Secrets of Morning Routine

You’ve all read those “habits of successful people” and “best morning routine” articles. Is this just another one of those? Well, yes. But it’s a little different.

That’s because my morning routine doesn’t follow the conventional scripts. You already know the basic types.

First there’s the “Crunchy” kind: get a full night’s sleep, wake to the sound of birds chirping, practice “mindfulness” for 20 minutes, then do some yoga and meditation, drink green tea, and eat an egg-white omelette made with local asparagus and eggs from cage-free free-range chickens. Eventually get to the office at 11:00 am.

That’s not for me.

But I’m not big on the “Ironman” kind of morning routine either: wake to an alarm at 4:30 am, dunk yourself in ice-cold water for five minutes, run six miles wearing a weighted vest, then drink a cup of dark-roast coffee mixed with New Zealand goat butter. Then go to your job at the shoe department of J.C. Penney and kick ass.

No, I’ve got my own special morning routine.

The first thing you need to understand is that your morning routine actually starts the night before. If I want to have a super-productive day, I start by setting my iPhone alarm to go off an hour earlier than usual—for me that would be 5:00 a.m.

The alarm goes off at 5:00 am. I stagger over to the nightstand and hit the snooze button, which I think is set to nine minutes by default. There is probably some way to change that, but with my busy schedule I haven’t had a chance to research it. Anyway, over the next hour I hit the snooze button another six or seven times.

You might ask why I don’t just set the alarm for 6:00 am and get up without hitting snooze. What you don’t realize is that I’m not actually sleeping during that hour. Instead, I make productive use of that time by lying there half-awake thinking about the most stressful things I have to deal with that day. Scientists say this releases a special chemical in the brain that increases stress. And that helps me keep my mind focused.

When I eventually get up, I make my way to the bathroom, close the door so I won’t wake my wife, and sit on a stool in the closet. It’s a plastic stool that is just the right height. For a five-year-old. Then I open my Twitter feed and start scanning. This doesn’t help me wake up, but it does help me catch up on the latest salary increases for starting associates at big New York law firms.

Once it sinks in that third-year lawyers will be charging twice my hourly rate, I’m in just the right mood to step on the bathroom scale. “All right, that’s it, I’m starting my healthy eating program,” I say to our cat sitting on the counter. “Tomorrow.”

Then, after a shower, a clean, close shave with my Philips Norelco® 5850 electric shaver, and getting dressed, I’m ready to take on the day. But this is where I pause for some alone time in my study downstairs. It’s quiet in the house, my wife and kids are still snug in bed, and the morning sun is just peeking over the horizon. It’s a great time to sit alone and dwell on past regrets and failures.

IMG_5187
Behind the scenes at our photo shoot

I know, they say you should learn to let go of regret and learn from your failures. But I prefer to hold on to those regrets and to keep making the same mistakes. I feel this increases my empathy and “emotional intelligence.”

Once I’m feeling agitated enough, I’m ready to hit the road. I pull into the drive-through lane at the new Shipley Donuts just down the street. “I’ll have four—actually, make that five—original glazed, please.” While I stress-eat my donuts, I head towards Starbucks and turn on some sports-talk radio to find out for the final time if Lebron James is better than Michael Jordan.

Stopping at Starbucks gives me a chance to get out of the car so I can brush off those little shards of donut glaze. When I step out of the car, my glasses fog up, but it’s ok because I don’t need to see the menu inside. The guy at the counter has already put in my order and says “hey, Zach, that’ll be $4.17.” After I scan the front pages of the free newspapers, I grab my double-tall cappuccino.

I’m running late for work, but before driving off I have to vent some frustration about the political news of the day with a sarcastic tweet. “Ha, take that!” I say to no one in particular. You shouldn’t hold that emotional stuff inside.

I have a long commute, so this is the time to educate myself with a podcast on the latest law practice trends. But seven minutes in to “Best Practices for Law Firm Cyber-Security,” I get bored. I switch over to the “Bob Schneider’s Song Club” podcast, so I can hear some stories about B. Schnitty’s drinking days and how he came up with the lyrics to “Cap’n Kirk.”

After about 80 minutes on Houston’s fine freeways, I’m slouching over the computer at my office desk. This is crucial time. Researchers say you have the most mental focus in the first few hours of the work day. So I use that time wisely by checking my blog stats. I can’t wait to see how many people viewed my hilarious post about choice of law in non-compete litigation. The result is underwhelming: 17 views since Monday. And that’s just my family.

Dang it. It’s already 10:30 am and my morning mojo is shot. Time to hit Starbucks again. But maybe this time I should go with the green tea.

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IMG_4571Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation, but he’s angling for an endorsement deal with Philips Norelco. He also wants to kick out the jams and rock the block.

Five Minute Law assumes no liability for incidental or consequential damages that may result from following this morning routine. Photo credit: Eric Wolfe.

 

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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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. Since he wrote this post his daughter has turned 18 and graduated from high school.

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 $4.17 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.

If you’re more of a baseball fan, check out what Justin Verlander told Alex Bregman (“bro, you need to be sleeping 10-12 hours”).

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. 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?

kitten sleeping
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.