Gender Lawyers, and "legal throughput" - some heretical thinking
In his book, Undaunted Courage, about the Lewis & Clark Expedition (the first expedition to cross the United States by land in 1804), Stephen Ambrose wrote:
“A critical factor in the world of 1801 was that nothing moved faster than the speed of a horse. No human being, no manufactured items, no bushel of wheat, no side of beef, no letter, no information, no idea, order or instruction of any kind moved faster. Nothing moved any faster and, as far as Jefferson’s contemporaries were able to tell, nothing ever would”.
In 1977, when I began practising law, no original, copy or image of a document moved faster than the speed of a FedEx jet plane. No typed document was prepared or edited faster than the speed of a secretary’s fingers. When a lawyer left his or her office, the only way to reach that person was on a land line telephone. Opening the hard copy mail every morning took time because that was how you received information. If you rang someone on the telephone and they weren’t there, you either tried again later or left a message with another human being, as there was no voicemail. If you were working on an international matter, you communicated via airmail letters, with an occasional very brief phone call because international phone calls were exorbitantly expensive. There were no computers, no internet, no email, no scanners, and legal research involved walking around libraries and opening books.
When I think of technological changes, I think of them in the context of “legal throughput” – that is, the continuous flow of information, ideas and communication needed to keep things functioning in the practice of law. Legal throughput can occur either relatively slowly, or with incredible velocity and intensity as it does now. In 1977, legal throughput was a lot faster than it was in 1801, but not anything like it is today.
As lawyers, we are directly impacted by the speed of legal throughput. In 1977, I had to work hard to keep current as a lawyer and meet the demands of clients and senior partners. However, deals closed more slowly, documents were drafted and revised at a more leisurely pace, more communication occurred face-to-face and when I left the office in the evening, my work was done for the day in most cases. We worked hard, but we worked at a more human and humane pace.
Legal throughput, stress and gender
All of which leads me to the issue of why women are leaving the practice of law in droves and what can be done about it. There has been good research done on this and interesting articles have been written about it. It’s a hot topic for obvious reasons.
That said, however, I am going to say something that may be somewhat heretical. Although there are gender specific challenges women face in the practice of law (because we bear and raise children and often do more than our fair share of work around the home etc), there is a bigger issue here. I believe both men and women are under increasingly unsustainable workplace stress due to the technologically accelerating pace of legal throughput. The pace is no longer human or humane and we are all becoming symptomatic as a result.
It’s not that women are symptomatic and men aren’t, but rather that the symptoms are often different for each. Women typically respond by leaving the practice early in their careers, taking time off to be with family, working part-time and failing to achieve their full professional potential. This is not a new issue, of course. Women left the practice of law back in 1977, but it was less obvious because we represented such a small portion of the lawyers and managing family demands was somewhat easier in an environment of slower legal throughput. It wasn’t “easy” to do it all, but it was somewhat easier.
Men are equally symptomatic, but their symptoms can be more subtle, pernicious and potentially more damaging. They can experience physical or psychological problems (including depression), substance abuse, premature mortality, burnout, marital or other familial problems and so forth. Men stay with the practice of law, but sometimes pay a high personal price for doing so. Occasionally, I find myself thinking that the way women are responding makes more sense than the way the men are.
If the increasing velocity and intensity of legal throughput is not good for human beings, regardless of gender, then the issues and the solutions go well beyond part-time work, better daycare and flexible hours for mothers. The legal throughput “Pandora” is out of her box and I do not think there is any chance of putting her back in anytime soon. I am a realist, and I fully endorse the improvements that technology has brought to the practice of law. I don’t look back wistfully on the “good old days” when things moved more slowly in the practice of law. It’s not about that.
If one thinks making the practice of law sustainable is a “human issue”, rather than uniquely a “women’s issue”, one will likely consider different solutions. Conversely, so long as the issue is defined primarily as a women’s issue, the solutions are likely to be inadequate, “bolt-on” solutions at best.
Legal “on call”
If faster legal throughput is here to stay and if it is creating unhealthy stress for all lawyers, then innovative, adaptive approaches to how we practise law may make good sense. We lawyers, as a group, are a pretty traditional bunch and we don’t always welcome change. However, the costs of not changing may become so prohibitive that the costs of changing seem modest in comparison.
So, that said, here’s an idea. My husband is a physician and has been through arduous medical training, including working in intensive care units (ICUs). ICUs specialise in the treatment of very sick patients with complex and often long term medical problems. In some ways, an ICU resembles a legal team working on a complicated, lengthy piece of client work. ICUs provide sophisticated care 24/7 and it is critical that they do so professionally and consistently. If they “stuff it up”, patients die.
To provide such care while making it possible for medical personnel to have more manageable lives, ICUs (and other medical practices) use the “on call system”. Doctors are “on call” periodically, and when they are “off call”, they know they leave the medical work to others, except in real emergencies. To make the “on call” system work, despite changing staffing coverage, medical personnel use “chart notes” and “rounds”. Medical personnel are trained to document or chart a patient’s progress and developments, either manually or electronically. Everything that is important is noted down so that when others are on call, they will know what to do. “Rounds” consist of doctors who are going “off call” going around and checking in with each patient accompanied by the doctors who are coming “on call” so that there is minimal slippage in communication or treatment plan. Although these systems are not foolproof, they work pretty well most of the time.
In today’s highly technological, global legal practice, lawyers are available and often work 24/7. It’s 8:00 a.m. somewhere in the world all the time. I wonder whether the medical “on call” approach might have some application in the practice of law. Unlike doctors, lawyers, for financial and other “political” reasons, often want to retain sole control over a client relationship. However, at least in many legal practices, teams of lawyers work on client matters. Would it be possible to make their professional lives more sustainable through a structured call schedule including chart notes and rounds? Maybe partners could even be encouraged to be “off call” and share client relationships (and credit for legal fees) with their colleagues. A lawyer can still bill plenty of billable hours working “sustainable hours”, and clients will likely be better served by lawyers who are not chronically exhausted.
Toxic (as opposed to stimulating or positive) workplace stress typically occurs when people have a lot of responsibility and not much control over the conditions in which they work. Lawyers often have a lot of responsibility and are expected to work long hours over which they have little control. If lawyers, whether they be male or female, knew that they were going to be “on call” to work late on certain days, but “off call” other days, this would likely make the practice more sustainable. Although the speed of legal throughput would not be any slower, the individual lawyers might be less “symptomatic”.
Clearly, the medical “on call” model would need some fine-tuning to make it work in the practice of law. However, I think there could be some real benefit to looking at this model more closely.
Making cultivation and retention of younger lawyers a critical KPI
Much “lip service” is given to the importance of supporting the success of younger lawyers, particularly women, so they will stay in practice long term. However, as a practical matter, many senior level lawyers give it relatively short shrift because lawyers put primary focus on the billable hour. Especially with faster legal throughput, developing talent can take a back seat in the practice of law.
If a company really cares about identifying, cultivating and retaining high potential employees, senior management will need to build this concern into its reward system and set up a consistent way of monitoring progress. In Organizational Culture and Leadership, Edgar H. Schein, a leading organisational psychologist, described a company in which the CEO announced that henceforth, 50% of each senior manager’s annual bonus would be contingent on what he or she had done to develop his or her own immediate subordinates during the past year. The CEO added that he himself had no specific programme to do so in mind, but that in each quarter, he would ask each senior manager what he or she had done and hold them personally accountable for their own success. Schein writes, “One might think that the bonus was the primary incentive for the senior managers to launch programs, but far more important was the fact that they had to report regularly on what they were doing. Senior managers launched a whole series of different activities, many of them pulled together from work that was already going on piecemeal in the organization.” By consistently paying attention to the issue, the CEO clearly signaled that he considered personnel development to be a critical “Key Performance Indicator” or KPI for managers.
What would happen if law firms and corporations began to hold their partners and senior managers equally accountable for the development of more junior lawyers? I know of a firm that uses a similar approach in their partner review system, and it has generally worked well. The firm’s CEO is “walking the talk” and following through on this and the partners are mostly supporting it. Although this approach required a significant mindset change for everyone, some interesting developments occurred in the firm. Young lawyer retention rates (for men and women) increased, sick leave claims dropped and subjectively reported “satisfaction” levels went up. A few partners left in protest, but most either support, or at least accept, this new approach.
So, yes, the legal profession should and must accommodate the unique needs of women and their families. Admirable though that may be, in a world of accelerating legal throughput and increasing stress, this may not be sufficient for either men or women. More basic structural changes in how lawyers practise may be needed to make the practice of law sustainable in a human and humane way.
I’ve suggested a couple of ideas in this article and I would welcome any thoughts, comments, and other approaches that occur to you. Please do feel free to contact me; you can reach me at www.emilymorrow.com. You can also send Letters to the Editor to email@example.com.
Emily Morrow BA (Hons), JD (Hons, Juris Doctor), was a lawyer and senior partner with a large firm in Vermont, where she built a premier trusts, estates and tax practice. Having lived and worked in Sydney and Vermont, Emily now resides in Auckland and provides tailored consulting services for lawyers, barristers, in-house counsel, law firms and barristers’ chambers focusing on nontechnical skills that correlate with professional success; business development, communication, delegation, self-presentation, leadership, team building/management and the like.