They say that justice is blind, but law firm operations shouldn’t be. We talk, through articles and CLEs, about the challenges with talent retention, but it seems that we stop at stating the issue and don’t take time to understand the employee’s experience and address the causes. Often, the issue is the elusiveness of time.
Hillary Clinton’s biography recounts a story of how when Clinton was a law student, a practising lawyer asked her about the type of law she wanted to practise. She responded that she wanted to be a litigator. He replied that she couldn’t because she wouldn’t have a wife at home to organize her life.
Although the story is used to illustrate sexism in the profession, I recount it to illustrate the difficulty of being a practising lawyer and having a family. This is no longer a gender issue, as most modern families have dual incomes and men are increasingly involved in child or parental care and home economics.
Many of us do both, but it is difficult and it is accompanied by constant guilt — and stress. There’s guilt at work because you’ve missed the class trip or dinner again. There’s guilt at home because there is so much more to do at the office. The result is that you are never fully present anywhere and both work and home suffer.
Most workable solutions are on the personal side. Hiring a caregiver is popular, but it’s almost impossible to find a caregiver in Toronto unless you sponsor one from overseas. This is also hard on personal relationships. Establishing and maintaining relationships with your family is difficult when you work 80 hours a week.
Some firms have taken the progressive step of creating part-time or flex-time options for lawyers. Part time may mean working half of the required billable hours, but when you include unbillable hours, it can still result in a 50-hour work week.
Certain practice areas don’t facilitate part-time work options, such as in my specialty of corporate immigration. The pace of the practice is so fast that it is almost impossible to run a part-time practice. I have seen several colleagues try, only to spend non-work days responding to email and being resentful. They inevitably quit.
Based on the above, these are the challenges to maintaining talent in private, legal practice:
1. Lack of work-life balance
2. Unachievable time expectations
3. The demanding nature of the practice and clients
In addition to talent retention, many of these issues also contribute to higher levels of drug abuse, alcoholism and divorce.
The unifying factor here is time. There isn’t enough of it. What can we do? We can look at operational structures that consume time:
1. Workload and staffing
2. Billing procedure and performance evaluation
3. Inefficient processes
If we can find time through effective operational support, we can create efficient and profitable practices while removing reasons for leaving private practice.
Workload and staffing
For solicitor-based practices, working in a fluid, group dynamic with effective backup may be an option. For example, Jane and Harriet are both lawyers who want to work on a part-time basis. They are placed in a job-sharing structure. Each works three days per week on the same clients with the same team. Clients know which days each is in the office and are confident that both are fully engaged. The lawyers work to communicate effectively. On the one day a week both are in the office, they meet to confirm case strategy and team instructions. On this day, they also hold team meetings to ensure everyone is on the same page.
With current technological advancement, this should be easy to implement as client demand for transparency and good communication mandates that case notes are kept up to date in real time.
This option also has the added advantage of collaboration. Two sets of eyes on a case significantly decrease the potential for errors and mistakes.
Billing and evaluating performance
Let’s consider the effect of the billable hour. The billable hour can lead to inefficiencies in the interest of meeting billable-hour requirements. It also lacks cost predictability for clients. Fee-for-service structures and contingency fees are potential alternatives. These structures have the benefit of promoting efficiencies while balancing financial windfalls and losses and increasing capacity. It can be a riskier structure, but it can also mean increased returns.
Performance reviews are often based on a lawyer’s ability to achieve billable-hour targets, encouraging more hours to be worked. Performance can also be evaluated by fees billed. Under a fee-for-service structure, the number of files billed is reviewed, as opposed to the time spent. The effectiveness of this approach depends on appropriately scaling fees to the services provided.
Some firms are putting lawyer evaluation into the hands of the client by using net promoter scores. This can be problematic when a client does not obtain a desired legal result, such as when the facts just don’t support a positive outcome.
Note that none of these structures effectively evaluates competency or mental capacity.
Many of us have spent too many unbillable hours manually filling client reports that were supposed to self generate. Ineffectively implemented data management and information-retrieval systems can hijack a day or even a week, hindering instead of helping time management. These experiences both frustrate and take a toll on legal practitioners.
Although operational systems often fall to the bottom of the to-do list, they are key to the health and productivity of a firm and its people.
To solve resource challenges in the legal system, we need to understand the human experience and address the underlying factors. The legal industry is currently undergoing significant and rapid change fueled by technology, client demands and social change. In order to move forward, we need to take a hard look at our resourcing challenges and be innovative with operational practices to support our human capital resources.