Managing Primal Instincts and Long-Standing Doctrine: The Attrition of Young Lawyers (Part Two)

By Cheng Shing Chow (e: shing@firstcapital.asia)

Part 1: https://www.firstcapital.asia/managingprimalinstinctspart1
Part 2: https://www.firstcapital.asia/managingprimalinstinctspart2
 

Facing Off: ‘Culture’ As A Much Abused Concept, Greenhorn Managerial Behaviour, Bottomline-Driven Survivability and the Changeability of Personality

 

In Part One of this essay Two of the Three Principles were put forth in framing a viable solution to arresting the attrition of young lawyers:

 

The First Principle: Recognizing The Unnatural Bedfellows Within You. The perennial battles, tension and conflict among the Three Personalities any law firm or lawyer possesses to varying degrees

 

The Second Principle: Breaking Down ‘Your Law Firm Practice Culture’ by Distinguishing Agreements, Conventions and Arrangements – An Arena Where Real Feelings and Real Stakes Are Present

 

I turn to the third and last of these principles.

 

The Third Principle: The Organizational Tuning of Behavior – A New Training and Thought Regime

 

From consistent practitioner and law firm feedback, one final challenge marks the biggest opposition organizational tuning of behavior of any sort will face: the inevitable routine of throwing new, junior lawyers ‘into the deep end’ out of apparent sheer necessity.

 

The chasm between law school and law practice cannot be understated. The then Dean and Professor of Law at Pace University of Law, Stephen J. Friedman began his article The Struggle Between Legal Theory and Practice: One Law Student's Effort to Maintain the "Proper" Balance [2005][1] with this sentence:

 

“No one expects a doctor to ‘think’ like a doctor when she leaves medical school. We expect her to be a doctor.”[2]

Writing a year into his role as dean[3], which by his own admission was a fascinating transition into academia and academic administration, he posits a challenge to The Classical Training Paradigm[4], with his thesis being: ‘law schools need to align legal education more closely with the realities of law practice or the gap will be closed by other institutions…’[5]

 

To him, at issue is the ordinary understanding of what ‘thinking like a lawyer’ amounts to: a mode of analytical thinking that fails to include a host of other purely intellectual skills that are important parts of the armament of a successful lawyer. He names a few of these necessary, but lacking, intellectual attributes:

 

1. the special kind of integrative thinking that makes for a good draftsman of agreements, statutes and rules;

2. the judgment to understand which results of analytical effort are logically accurate but unacceptable to most judges and other decision-makers;

3. and the ability to perceive areas of potential common ground between adversaries, both in intellectual constructs (an important strength for judges on multi-judge panels and lawyers who practice before them) and in emotional and intellectual approaches to problems (a critically important skill for negotiations of all kinds).[6] 

 

He makes particular reference to drafting:

 

“Similarly, many law schools view drafting contracts as a subset of legal writing. It is more properly viewed as a special kind of legal thinking; absolute clarity about the result sought to be achieved from a given clause, thinking through the widest range of possible intentional and accidental modes of evasion and providing for them in the broadest possible way without unduly hamstringing the other party in the conduct of its business (or his or her life) and then, and only then, expressing the rule and its exceptions with great precision. Not many students graduate from law school with sustained practice of that kind, but a broad swath of the legal profession is called upon to exercise those skills.”[7]

 

Changes to the legal profession: the rise in lawyer salaries and the cost of legal services, the enormous expansions of medium and large law firms, and the rise in complexity of the law and regulatory systems (which correspondingly required substantive sophistication and market practice knowledge in law practices) – these factors made on-the-job training uneconomical and gave added pressure for young lawyers to be productive fee earners as quickly as possible.[8]

 

The author goes on to make several suggestions on how law education should change, countering the expected criticism of these changes. He includes comparisons with the consulting, investment and commercial banking, and accounting industries which have increasingly longer formal periods of training. To him, financial transactional and corporate law were where the gap between law school and practice were biggest. Litigation on the other hand is already highly specialized in law schools with civil procedure, evidence, trial practice arbitration and mediation. The accusations of ‘over-specialization’ or ‘turning law school into trade school’ were to him specious.[9] 

Afterall, to him:
 

“Law schools are professional schools, and their educational mandate is to prepare students for entering that profession… Training lawyers are ultimately to service the needs of a complex, democratic society”[10]  

 

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What solutions portend in this ideological divide between legal theory education and legal practice effectiveness? Is the onus on law schools to provide increasingly specialized curricula and is it healthy for law students to be made to choose or specialize while still enrobed in their juris swaddles? Are all hopes dashed if a young lawyer re-chooses specialization post-graduation? Can formal training for young lawyers be instituted in firms amidst daily bottom-line pressures?

 

Of these very consequential questions of enormous industry impact, this writer opines that any solution will be a necessary mix of some or all of the above given the enormity of policy and institutional considerations. The ultimate solution however, must always begin with the intellectual qualities attributed to the necessary ‘thinking like a[n effective] lawyer’ Friedman referred to in his article. By this I mean the early, at-practice-inception, crafting of the effective lawyer’s analytical ability towards the correct legal conclusion in the context of daily workflow.

 

The guidance – indeed formal training – will most likely be within contexts foreign to general legal education (or foreign to that specific young lawyer’s law school curricula simply because those subjects were not taken): transactional drafting, highly specialized and technical subject matters most likely relating to specific sub-industries that are the subject of litigation, or as is typical in large law firms – delivering a small task within a far larger legal matter absent the surrounding evidential context and strategy.

 

In this mini mentor-mentee arena, the guidance-providing senior(esque) lawyer needs to be explicit in how his or her (the senior’s) analytical ability:

 

1. would have done that piece of work differently and correctly;

2. has changed over the course of the (senior’s) beginning months and years;

3. (very crucially) would be different from another senior or the ultimate-senior lawyer, both correctly or incorrectly;

4. is derived correctly despite absent information (or what information needs to be asked and obtained).

 

…instead of punctuating that junior’s entire task of that legal ‘research note’ or ‘first-cut draft’ by assigning a mental grade impacting his or her future ‘usability’ to that and other more senior lawyers.[11]

 

There is no substitute for the correct know-how, empathy, proviso support from the correct person at the correct time and place and ably provided. Even the smallest basic unit of a law practice needs to have the crucial staggered experience and relatable generational age-gap on-hand and ready to be deployed, when the junior person is in need of it. This having been said, this writer is not naïve to the fact that this is easier said than that, given the thinning ranks of mid-career lawyers, but amidst these difficulties, striving towards reducing attrition is a must, or law firms risk perpetual descension into a spiral of culturally-ugly work environments. 

 

The incredible challenge now is for law firms to reverse attrition rates whilst taking on the burden of initiating impactful organizational change – in areas of thought and training – which will no doubt affect the bottom-line. 

 

Yet, more negative news portends – specifically this school of thought: expanding a company beyond a certain size will cause social bonds to weaken. Robin Dunbar, an anthropologist at Oxford University, postulates that ‘magic number’ to be 150.[12] Max Ringelmann, 19th-century French engineer, found that adding more and more people to a rope-pulling team had an adverse effect on individual productivity. “The more people there were to tug on the rope, the less sense of responsibility each person felt for the outcome and the less hard they pulled. After all, Ringelmann’s insight is still valid. Subtraction has its attractions” the Economist recently wrote.[13]

 

In this writer’s view, a figure of 100-150 overall (fee-earning and non-fee-earning headcount combined) is an ideal target for current medium-sized firms to head towards, with an overall objective of attaining the trifecta of bottom-line survivability, successful curation and indoctrination of ‘thinking like an effective, practicing lawyer’, and emotional-mental-health well-being. The first such medium-sized firms with a successful assemblage of all three benchmarks will pave the way for more entrepreneurially determined and emotional-sensitivity-astute firms capable of cementing the proverbial physical, mental, emotional and spiritual pathways to success.

 

 

******

 

The good news is that some already believe in the entrepreneurial hands-on inventiveness of creating a staggered-seniority/experience team so guidance across generational and experience gaps can always be had.[14]

 

Is there enough in one’s tank to execute all of these activities within a restrictive time period, replete with bottom-line survivability, client datelines and the ever-beckoning time-horizon of a young lawyer’s (im)patience with the hopelessness of this legal industry’s problem?

 

In this writer’s opinion, the answer is Yes, but only with senior- and career- lawyers’ reconciliation that the essence of a services industry (such is law) is characterized by a marathon, and not a sprint (nor regular series of sprints): that it is incumbent upon any lawyer to be patient and humble and not cave to the cruel primal impulses (with accompanying heart palpations) of such negative emotional intensity that it drains the energy and spirit of a legal career from you and the junior lawyer you are confronting… that only with matured restraint and patience and tolerance of individual differences over the course of decades will you make a palatable and ideally fulfilling career for you and your successors-in-careers, no matter the intensity and difficulty of your journey. And that with trust, positivity and persistence, you will only get stronger, fitter, better and faster and teach others to do the same. And finally, that free-spirited and equilibrium-destined entrepreneurial free-market forces will be the ultimate decider of the longevity of your firm’s future and legacy.

 

How young lawyers have been feeling, and how they feel in today’s legal industry climate, is irreversible. Otiose efforts of the past must be stared squarely in the face and rejected. It is time for organizational behavioral change to impactfully lead the way to a new, profitable, entrepreneurially creative and emotionally-astute legal practice culture.

 

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Part 1: https://www.firstcapital.asia/managingprimalinstinctspart1
Part 2: https://www.firstcapital.asia/managingprimalinstinctspart2

 

End Notes

 

[1]The Struggle Between Legal Theory and Practice: One Law Student's Effort to Maintain the "Proper" Balance,  https://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1112&context=lawfaculty (2005).

[2]Ibid, quoting from Rapoport, Nancy B., "Is "Thinking Like a Lawyer" Really What We Want to Teach?" (2002) and see in particular footnote 5: “E-mail from Ben Turin, Atty., Vinson & Elkins L.L.P., to Nancy Rapoport, Dean & Prof., U. Houston L. Ctr., Thinking Like a Lawyer (July 19, 2001) (copy on file with author) [hereinafter Email, Turin I]… Perhaps [t]he differences in how the professions are taught are due more to the different natures of the practices, not [the] differences in educational goals. It is easier to bring the practice of medicine to the medical school[ ] than it is to bring the practice of law to the law school. In medicine it is possible for students to obtain exposure to the broad spectrum of medical problems and procedures in a teaching environment. In law, however, the legal exposure in the law school is limited to those areas of law that cater to the indigent (the typical clients of a law school clinic). This natural restriction prevents most students from learning that which they will practice inside the four walls of the law school. In place of intensive clinical exposure in law school, most law students obtain the hands-on piece of their education informally through employment outside the law school.”  It is my opinion that this medico-legal industry distinction has much bearing on the New Training Regime suggested in this essay.

[3] Ibid. Prior to becoming Dean of Pace Law School, he was a partner in the Corporate Department at Debevoise & Plimpton in New York. After serving three years as Dean, he was appointed the seventh president of Pace University, a position he served for 10 years: https://www.pace.edu/president/former-pace-presidents/stephen-friedman.

[4] Ibid at pg. 84: “The classical paradigmatic relationship between legal education and training to be a lawyer is simple: the most important function of law school education is to teach its students to think like lawyers," and law firms will do the rest.”.

[5] Ibid at pg. 81, where he also says: “Why should we be concerned about the gap between legal education and the practice of law? It has always been there. I believe that for most students and most law schools, the raison d’etre of legal education is to educate and train students to be effective new lawyers, not to teach them how to "think like a lawyer" or to give them substantive expertise or skills training. Thinking like a lawyer, substantive expertise and skills training are tools in achieving the goal of educating and training effective new lawyers, but they do not define the goal. Acceptance of a standard of creating effective new lawyers would be significant because it provides a basis for measuring the success of strategies for achieving that goal. It seems plain, however, the legal academy has not accepted this standard. If it had, there would be an ongoing dialogue between law schools and practicing lawyers about how to create more effective new lawyers-a dialogue that would benefit both parties. I have no illusions about the universal acceptability of this goal as a standard among law professors and deans…“.

[6] Ibid.

[7] Ibid at pg. 81.

[8] Ibid at pg. 85-6.

[9] Ibid at pg. 88-9.

[10]Ibid at pg. 93.

[11] The Great Resignation, https://lawgazette.com.sg/practice/practice-support/the-great-resignation/ (February 2022). As the author writes: “… some associates who underperform are quickly abandoned by their bosses. They are given the “cold storage” treatment and given minimal or less important responsibilities. It is stressful to be left out. Should senior lawyers be slower to give up on their juniors? Should they try to be more encouraging, remain hopeful, and help develop the associate? Associates need time to develop. I have seen associates whose morale was low in having been left out, but with encouragement and opportunities to develop under the caring guidance of mentors, they are now doing very well in practice.”

[12]The Magic Formula of Management, https://www.economist.com/business/2022/10/06/the-magic-formula-of-management (6 October 2022).

[13] Ibid.

[14] The Great Resignation, supra n 11 where the author, after over 20 years of practice has a current active team of eight, where younger lawyers may benefit from the greater attention and guidance of more senior lawyers. He writes “My team’s individual experience ranges from less than a year to more than 12 years. There is a good spread of experience, meaning that I do not have a top or bottom heavy team (I am not talking about physical attributes).