Language Viruses - Improving Results Through Language

I recently attended a leadership workshop hosted by the Legal Marketing Association on behalf of its current and incoming chapter and international volunteer board leaders.  Beth Ruske, managing partner of Tiara International LLC and co-founder of ClearSpace LLC, spoke to the group about producing results as a True Leader, with particular emphasis on improving results through language.  Beth’s remarks were adapted from the work of Fernando Flores’ “The Effect of Communication.”  I found Beth's presentation fascinating.  I searched for more background afterward and discovered some excellent insights about Flores’ work from Matthew Budd and Larry Rothstein in their “You Are What You Say.”  I’ve summarized some key takeaways here. Flores believes there’s a fundamental connection between language and actions, and what we say strongly influences how we feel and how others around us feel.  Language used effectively can overcome challenges and biases, change moods and physiology, create positive outlooks and ambition.  Used poorly, language can have long-reaching and long-lasting negative effects, to ourselves and others.  Without delving into the psychological aspects of Flores’ work, it’s safe to say that many of us fall short of effective communication because our language is imprecise – what we say is not what others hear, and vice versa.

Flores identified several “linguistic viruses” that infiltrate our daily speech, creating confusion rather than clarity, impeding collaboration and causing frustration.  By better understanding the common mistakes we make when communicating with others, leaders can improve their effectiveness in establishing a vision and creating momentum toward achieving the vision.

Here then, are the top 10 language viruses.  Some refer to more precise language; others refer to better communication in sticky but predictable situations.

1.      NOT MAKING REQUESTS

We want or need something from someone else, but we don't ask for it. Why? For some of us, this fear of asking is to avoid feeling rejected. In sales training parlance, overcoming “call reluctance” involves understanding that a no to a request is just that  -- a ­no to the requested action, not a rejection of the person.

Others fail to ask for fear that others will deem them incompetent. Anyone who has presented to a group of lawyers on a topic out of the lawyers' comfort zone knows that they will generally not ask questions if subordinates are in the room, or if the answer might be so obvious as simply asking might make the lawyers look silly.  In reality, those with true comfort in their position often have no fear of asking questions.

And others fail to make requests because they fear imposing on others.  In fact, many people thrive on helping others and being asked to contribute is a high form of flattery as it acknowledges another’s capabilities.

 2.    LIVING WITH UNCOMMUNICATED EXPECTATIONS

Countless cartoons have played out this theme, where one spouse has an entire two-sided argument in his or her head while the other spouse is blissfully unaware. Whether at home or at the office, sooner or later we all feel that someone else “should have known” what we wanted, or we’re faced with someone taking us to task for not taking some action that was obviously needed.

This variation of "not requesting" happens when someone has a vision for what others should do, but doesn’t express this thought as a request.  Inevitably, when others don't do what we expect, we're disappointed, resentful and angry.

3.    MAKING UNCLEAR REQUESTS

Imagine the basketball coach exhorting his players to “help out on defense” when facing a superior team. Does this mean I should leave my opponent open while I double-team another opponent? Does this mean I should guard the opponent closest to me, expecting one of my teammates to switch and cover my assigned opponent?  Coaches know that vague advice leads to poor play, so good coaches give specific guidelines on playing help defense.

Many requests at home or at the office rely on vague language.  There’s as much wiggle room when asking a teen to “be home at a reasonable hour” as there is when asking a colleague to “take a look at this and let me know what you think.”

Asking very specific questions is not insulting because it allows both to have a shared vision of the expected outcome.  It’s not enough to have the desired outcome in our own minds; we must express this outcome to others so they share the vision.  Beth offered some excellent advice to guide us: Every request should include some form of “will you…” and “by when” to ensure clarity on what is requested and when it’s due.

4.      NOT OBSERVING THE MOOD OF YOUR REQUESTS

Our demeanor when asking questions shapes the outcome.  If every request is a command, subordinates will be compelled to complete the request but they are unlikely to go the extra mile.  Others who are not required to act may choose not to when faced with a demanding and commanding request style.

By contrast, pleading desperately for help is unlikely to foster the desired outcome long-term.  Many will help you once, even twice, but obtaining help from others out of a sense of guilt is not sustainable.  This is, incidentally, why charities see a steep drop off from contributors who become weary of incessant solicitations.

Be aware of your demeanor, and the recipient’s, when asking.  The old adage still applies: you will catch more flies with honey than with vinegar.

5.      PROMISING EVEN WHEN YOU AREN'T CLEAR WHAT WAS REQUESTED

In the hierarchical structure of a law firm, when a partner requests something of an associate or staff member, there is little room for saying no.  Unfortunately, at times there is also little room for requesting clarification.  It’s the responsibility of the receiving party to clarify when the request is vague.  Clarifying an outcome that is unclear is not a sign of weakness.  In fact, it’s a sign of thoroughness and attention to detail.

6.      NOT DECLINING REQUESTS

This is easy to explain.  We can’t accept every request lest we become overburdened and ineffective.  Many say yes for fear that saying no will disappoint the requester.  But imagine the requester who is disappointed with an insufficient outcome, or an outcome that comes too late to be helpful.  Avoid this disappointment by not over-promising and under-delivering.

7.      BREAKING PROMISES WITHOUT TAKING CARE: UNDERMINING TRUST

It’s unfortunately not uncommon for some who are extraordinarily overburdened to put their heads in the sand and hope deadlines go away.  Not surprisingly this rarely works!  But hiding from responsibility takes many forms, it’s not always as obvious as shirking responsibility.

A common complaint from in-house counsel is that outside counsel aren’t responsive.  Outside counsel may feel this is unjust, as they are working dutifully on the client’s matter but don’t yet have “the answer.”  To clients, managing expectations is about communicating progress, confirming that we’re on track for established deadlines and providing early warning when something goes awry.  What frustrates clients more than anything is surprise.  If lawyers were to give advance warning when the matter is trending over budget or some new uncertainty has occurred, the client can adjust plans beforehand.  Adjusting after the fact is always much more challenging.

When commitments need to be broken, it’s critical to be up front and open, apologize for the impact, offer a new commitment and help fix any mess that results.  It is fairly uncommon for those who break commitments to do so elegantly, so handling the situation with care can still be a positive differentiator.

8.       TREATING OPINIONS OR ASSESSMENTS AS FACTS

As I write this during a presidential election season, my voice mail and email inbox and Facebook wall are full of political ads, commentary, solicitations and diatribes.  In politics and in religion, many have an absolute conviction in their beliefs but are unable to objectively quantify and prove to others the merits of their position.  This is a desirable outcome of a free society, notwithstanding the noise pollution in election years.

However, imagine the same mindset applied to more mundane business or family issues.  When one is convinced an opinion is fact, it can create dissension.  “We must double down and invest more in this product if we want to win in the market” and “What we need more than anything else is more rainmakers” and “I believe we spend too much already so I’m going to vote no on this funding proposal” and “Our clients want more of X, not Y” and countless other conversations take place every day in businesses and law firms.  When held up to scrutiny, many assertions lack a factual basis, but strength of will or organizational authority can often overcome lack of facts.

But that doesn’t make it right.  As we’ve learned in politics, you may not be able to convince others they’re wrong.  But we can do a better job of ensuring that our views are grounded in fact, not opinion.

9.       MAKING ASSESSMENTS WITHOUT RIGOROUS GROUNDING

Not all judgments can be supported by incontrovertible facts.  Still, there should be a certain rigor applied in making a case even when some of the facts are missing or in dispute.  Evidence and supporting documentation are always more helpful than mere opinion.

I recall a new CEO sitting through a review of our company’s technology spending.  We had spent five years investing in significant technology upgrades that automated multiple manual systems, improved quality and increased logistical supply chain throughput.  We had substantially reduced overall operating expenses and improved profits through strategic technology investments.  The new CEO spent just a few minutes reviewing the coming year budget submission before opining, “It feels like we spend too much on technology. I think companies this size should spend less. Please take another pass at the budget and reduce the spend considerably.”

We would have welcomed benchmark studies that put our technology spending in context.  We would have welcomed a healthy debate on the substantial improvements we had made, which perhaps to a more seasoned eye should have resulted in even greater profits.  What we didn’t welcome was a poorly supported argument that impaired the new CEO’s credibility.  And once credibility is lost, it’s hard to regain.

10.    MAKING FANTASY AFFIRMATIONS AND DECLARATIONS

I’ve spent a lot of time in law firm practice group retreats discussing business development strategy.  I’ve never characterized them as fantasy, but I’m quite familiar with the unreasonable, unsupported and improbable declarations that mark such occasions:  “We will grow the practice by 25% next year by bringing in new clients and getting more work with existing clients.”  Flores treats such assertions as fantasies when the goal itself is unreasonable and there is not even a vague plan to achieve it.  The outcome won’t produce itself.

Contrast the fantasy with a realistic declaration, perhaps a reality that doesn’t yet exist but is attainable through a series of reasonable steps.  It’s a bit distant now, but the assertion in 1962 by President John F. Kennedy that the US would put a man on the moon by the end of the decade was grounded in the country’s then-current science and technological capabilities, even though to the average observer it seemed outlandish.  As such, it may have been a stretch goal but it certainly wasn’t fantasy.

 

Timothy B. Corcoran delivers keynote presentations and conducts workshops to help lawyers, in-house counsel and legal service providers profit in a time of great change.  To inquire about his services, contact him at +1.609.557.7311 or at tim@corcoranconsultinggroup.com.

Embracing the New Normal - The College of Law Practice Management's Futures Conference

Calling all lawyers, law firm managers, consultants and vendors! The College of Law Practice Management and Georgetown Law invite you to the 2012 Futures Conference, October 26-27, at the Georgetown Law Center, Washington, DC. Where better to examine leading-edge law practice management issues than to tap our Fellows and guests who are making the future happen now? We’ll discuss:

  • The New Model of Law Firms
  • “Value” From the Eyes of Different Beholders
  • Managing Partners of the Future
  • The Myriad Challenges of Diversity
  • The Consumer Law Revolution (and What It Means for Biglaw)
  • 2012 InnovAction Awards Presentation (hosted by yours truly, the awards chair)
  • New Normal from the GC Perspective
  • Also, for first time, the Legal Academy Practice Research Report —where academics cast a cold eye on your most vexing issues.

The roster of speakers and presenters is unprecedented and includes Jim Sandman, Susan Hackett, Eric Margolin, Amar Sarwal, John Michalik, Thomas Grella, Fredrick Lautz, Charles Vigil, Ward Bower, Aric Press, Toby Brown, Mark Chandler, Tanina Rostain, Stephanie Kimbro, Michael Mills, Marc Lauritsen, Mitt Regan, Juliet Aiken, Heather Bock, Lisa Rohrer, Verna Myers, Ron Friedmann, Mark Cohen, Ben Lieber, Andy Daws, Patrick Lamb and Steve Nelson.  For more details on each speaker, visit the conference website.  If you don't know most, or even many, of these speakers, then you can't possibly be serious about adapting to the new normal.

Learn more about the sessions from conference co-chair, Ron Friedmann, here.

Download the complete Futures Conference brochure here.

Expect a lively and engaging event. Panel presentations with active audience input will combine with breakout sessions to help you understand the forces jolting the legal market today.

Registration is Open 

Register online here for the Futures Conference. Be sure to watch the Futures Conference 2012 meetings page for more information on the program schedule, speakers and special events.

Special thanks to event sponsors (Platinum) Greenfield Belser, Attorney at Work and Practical Law Company, (Gold) American Bar Association's Law Practice Management section, the Canadian Bar Association, International Legal Technology Association, Ricoh Legal and Thomson Reuters and (Silver) Alexander Open Systems, Altman Weil, Inc., Association of Legal Administrators and the Legal Marketing Association.

LMA Southeast presents Legal Project Management for Law Firms

I'll be in New Orleans on Friday, October 12, to join a fantastic roster of presenters as we share best practices in Legal Project Management for law firms.  The day-long conference is hosted by the Legal Marketing Association's Southeast chapter and is one of several mini conferences the group is producing this year. The program kicks off with Catherine MacDonagh of the Legal Lean Sigma Institute, who will discuss the essentials of process improvement and project management for law firms. Monica Ulzheimer of Sutherland Asbill & Brennan will share learnings from the firm's significant investment in Legal Project Management.  Suzanne Donnels, the Chief Marketing Officer of Chicago's Jenner & Block, will present on content hygiene and optimizing marketing systems and processes.  After lunch Deborah McMurray of Content Pilot will discuss how Legal Project Management techniques can drive revenue and help manage the law firm business.  I'll contribute commentary on the business development aspects of Legal Project Management.  And Michael Webb of Jaffe PR will discuss the importance of strategic communications for project management.

The program will be hosted by Harrah's New Orleans, in the midst of the central business district and a short walk from the famed New Orleans French Quarter.  Registration and breakfast are offered starting at 8 AM CT, the programs commence at 9 AM CT, and the program concludes at 4:45 PM CT, immediately followed by a networking reception.  For those arriving from out of town the night prior, there will be a group dinner on Thursday evening at 7 PM CT at Drago's.

Legal Project Management is a relatively new but critical frontier for law firms, and everyone has questions.  While the session is produced by the LMA, the content is directed to all law firm leaders, including chairpersons, managing partners, practice group leaders, practice group managers, alternative fee and pricing analysts, chief financial officers, chief marketing officers, finance and marketing managers, practicing lawyers and even in-house counsel.  Based on my email inbox and client engagements, the common questions range from "What is it?" to "Is this additive or dilutive to profits?" to "Is LPM a fad that I can ignore when the economy picks up?" to "Isn't LPM just for commodity practices?" to "What's the difference between process improvement and project management?" to "How will LPM help me communicate more effectively?" to "What software must I install to run LPM?" to many many more.

Flights are inexpensive, the gumbo is fresh and while you may not want to relive your college days one Hurricane won't impact the diet. Plus, you can hear from several noted experts on a topic that is fundamentally changing the business and practice of law.  What are you waiting for?  Register here.

The Butterfly Effect of Delays and Overbilling

In a recent Legal Project Management workshop that I conducted, several law firm partners and I were discussing the importance to clients of predictability in their legal budgets.  Most agreed that if a couple dozen outside law firms submitted invoices that were delayed and over budget by even a modest amount, the aggregate impact would be troubling to the client.  However, few agreed that on an individual basis, any one invoice could cause much harm.  I explained that something as simple as a $15,000 surprise on a legal invoice on a $100,000 matter could have far-reaching impacts.  Those familiar with chaos theory recognize the butterfly effect as the potentially large impact of seemingly innocuous small actions, popularly characterized as the flapping of a butterfly's wings leading some weeks later to a hurricane in another corner of the globe. There was also a popular film of the same name demonstrating this concept.  The partners found it helpful for me to illustrate mathematically how this concept plays out in a corporation. I won't go into great detail into corporate budgeting here, but let's stipulate that businesspeople spend a lot of time building budgets for every function, for both the cost and revenue sides of the ledger.  And then they hold periodic "re-forecast" reviews to address the inevitable changes that take place, such as revenue for Product A coming in under budget, revenue for Product B trending well above budget, personnel costs below plan, supply chain costs above plan, and so on.  Imagine it's late November and Big Co. has just concluded its final re-forecast session of the year and all changes have been noted and locked in.

Smith & Jones LLP, is one of Big Co.'s trusted law firms, and has been handling a thorny litigation matter for the better part of a year.  The firm sends Big Co. an invoice for $55,000, which is $15,000 more than the relationship partner estimated at the last budget review meeting in September.  There has been no update since.  The invoice reflects billable hours conducted in September and October, and because of the usual delays in collecting daily time entries and the arduous pre-bill review process, the invoice isn't sent to the client until late November.  The General Counsel is aghast and reacts pretty strongly, even though the invoice reflects reasonable fees for legal work that was essential to achieving a favorable outcome in the litigation, though admittedly this includes some work that the firm did not anticipate back in September.  The billing partner is baffled by the GC's reaction, because the firm achieved the outcome that Big Co. wanted.  Let's examine the chain of events this delayed over-billing triggers.

First, the GC's compensation includes a meaningful portion based on the ability to remain within budget.  Had the GC been aware of the potential over-billing even a few weeks earlier, she could have worked with the Chief Financial Officer to shift priorities and funds to address the need.  Now, sadly, the GC is likely to lose some personal compensation because the surprise occurred so late in the fiscal year... there goes the shore house rental next summer!  Secondly, the GC has to visit the CFO with hat in hand and sheepishly admit that she didn't really have a handle on the legal budget that was reviewed in exhaustive detail mere weeks before.  By contrast, her colleagues managing Big Co.'s supply chain were able to reasonably estimate the immensely variable costs of shipping, manufacturing and labor, and her colleagues managing Sales were able to forecast revenue in a very competitive marketplace within a small margin of error.

What options does the CFO have at his disposal to deal with the overage?  Most good CFOs employ clever hedging strategies that can produce emergency funds in a pinch.  But so late in the fiscal year, there aren't a lot of options.  He can consider a layoff, but to net $15,000 in payroll savings in the coming month, after severance costs, would require a fairly sizable layoff of junior employees, or showing the door to a highly compensated individual or two.  But Big Co. doesn't relish the optics of conducting a layoff in the middle of the holiday season, so that option is off the table.  The CFO then looks at other expenditures to see what can be eliminated, but his insistence that every function phase the budgets precisely means that no functional budget has any excess unspent funds at this late date.  So we have to look at generating new revenue to cover the shortfall.

Let's imagine Big Co. operates with a gross margin of 10%.  This means that to cover a $15,000 expense overage, it must generate $150,000 in gross revenue. If Product A has a unit price of $10,000, Sales must move 15 new units in the next four weeks. Of course we can't forget the 5% commission associated with the sale of each new unit, so we need to bring in another $7,500 in revenue, for a total of 16 units, to cover this cost.  As it turns out, the sales cycle for Product A is typically 3 months, and the Sales team has by this point in the year picked all the low hanging fruit.  To move new units in the compressed time frame of one month requires an additional 5% commission incentive and a 10% price break.  Now we need to sell 18 units to cover the legal invoice over-billing.  But let's not forget that revenue for Product A can't be recognized all at once.  This product has a revenue recognition schedule of 50% at sales closing and 50% at final delivery, which is typically 6 months later.  Since only half the revenue can be immediately recognized, now we must sell nearly 40 units or almost $350,000 in the next four weeks.  Imagine the delight of the Vice President of Sales when the CFO calls to demand 40 additional sales of Product A with less than a month left in the fiscal year, a period which includes a fair amount of down time due to the holidays.

The CFO is not pleased with the GC's performance; the Sales VP is extraordinarily displeased with the GC -- the department that already slows down every sale by requiring grueling contract reviews; the GC's family is unhappy because the summer break will now consist of a staycation; and the GC is unlikely to retain Smith & Jones LLP again because of this transgression.  Yet the the billing partner remains blissfully unaware, because in his mind the firm achieved the desired outcome through good lawyering, which is what should matter most to the client.  Had the partner alerted the GC in September, or even October, that some additional wrinkles in the litigation would incur some additional hours, then this overage could have been addressed in the re-forecast exercise.  Had the firm employed some process improvement techniques to reduce the delays between posting time and invoicing, the GC would have had an early warning.  Had the firm relied on a budget and legal project management tools, the deviation from the expected course would have been obvious to all immediately, not months later.

When I walked through this anecdote with the partners at my workshop, I relied on several pages of a flip chart, lots of barely legible scribbling and some off-the cuff calculations.  We had some fun doing the math and acting out the reactions of the various parties.  But make no mistake, this is a deadly serious issue.  As a Chief Legal Officer reported in a client interview I conducted for a law firm client some months ago when we discussed billing policies, "The first time a law firm makes the mistake of over-billing without notice, I'll scold them and give them another shot.  If they do it again, I'll write down the invoice and simply refuse to pay it.  If they do it a third time, I will not use the firm again and I make it a point to tell my colleagues in other companies of my experience."  I asked the CLO if he tells firms when they're fired under these circumstances.  "Never," he declared.  "They probably assume they're still on the short list but that I just don't have any relevant matters.  Or maybe they assume some competitor has undercut them on price.  Rarely do they even call to find out why I haven't hired them lately.  And those that do call, I don't have the time to explain how their delays and over-budget fees complicate my life. Instead I just tell them their rates are no longer competitive."

Law firm leaders, as you look at your own operations, it's important to know the consequences of your firm's actions.  Like the butterfly flapping its wings and causing a tsunami a world away, do your actions -- or inactions -- create devastation that you never see or hear?

 

Timothy B. Corcoran delivers keynote presentations and conducts workshops to help lawyers, in-house counsel and legal service providers profit in a time of great change.  To inquire about his services, contact him at +1.609.557.7311 or at tim@corcoranconsultinggroup.com.

2012 InnovAction Awards announced!

For the eigth straight year, the InnovAction Awards have recognized outstanding innovation in the delivery of legal services, demonstrating what can happen when passionate professionals, with big ideas and strong convictions, resolve to create effective change. The College of Law Practice Management is please to announce that Littler Mendelson, PC and Seyfarth Shaw LLP are the two recipients of the coveted 2012 InnovAction Awards. Littler was selected for Littler CaseSmart™.  In response to a client challenge, Littler Mendelson developed Littler CaseSmart™, a solution that combines a re‐engineered legal process (deployed in a client‐dedicated, team‐based model) that is built on a technology platform that allows for the strategic management of a high ‐volume of administrative agency charges (such as federal, state, and local charges of discrimination), at a fixed, per‐charge fee. Littler CaseSmart™ provides transparent, privileged, and real‐time online access to the status of the client’s legal matters, as well as a dashboard of key performance indicators, visual graphics, and reports. The Littler CaseSmart™ approach completely re‐engineers the way in which matters are handled, maximizing the use of technology to anticipate attorney needs as they conduct research, prepare responsive documentation and perform legal and risk analysis in order to enhance efficiency while maintaining firm profitability.

Seyfarth Shaw was selected for its SeyfarthLean program.  Well before the fall of the financial markets, Seyfarth leadership anticipated the need for better ways for a law firm to meet its clients’ rapidly evolving needs for value, efficiency and continued high quality of legal services. Based on that simple goal, we have become the only large law firm to build a distinctive client service model – called SeyfarthLean – that combines the core principles of Lean Six Sigma with robust technology, knowledge management, process management techniques, alternative fee structures and practical tools. The broad, systemic use of such a model across multiple      practice areas is unique to the legal profession and reflects a fundamentally different way of thinking about how to deliver legal services.

The awards will be presented on Friday, October 26, at a special session during the 2012 Futures Conference, held in conjunction with the Annual Meeting of the College of Law Practice Management in Washington, DC.

There were a number of other impressive submissions from law firms and legal organizations this year, including Ulmer & Berne LLP, Sutherland Asbill & Brennan LLP, New Family, McAngus Goudelock and Courie, Lawyer Metrics LLC, Hinshaw & Culbertson, LLP, Fish & Richardson, P.C. and Baker Donelson.  See here for more details on these initiatives.  For the InnovAction Hall of Fame which includes information on past winners, see here.