Temptation to Tally
Recently, my friend Freta asked my advice about something that was bothering her. She was confused. It seemed she didn’t know what to count anymore.
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TEMPTATION TO TALLY
Change Your Definition of Wins and Losses to Find New Meaning in Your Practice
STEVEN KEEVA
Recently, my friend greta asked my advice about something that was bothering her. She was confused. It seemed she didn’t know what to count anymore.
I’ll explain.
For the last 15 years or so, she had been counting what is probably the most common thing lawyers tend to count: wins, whether in the form of favorable jury verdicts or judges’ rulings in her favor. When it came to winning cases, size mattered, and was also eminently countable.
But Greta had reached a point in her life at which the whole exercise had come to seem rather empty. For one thing, it was getting old, and was no longer capable of motivating her the way it once had. Besides, the satisfaction she had derived from watching her numbers had become diluted, as it grew increasingly obvious that many factors leading to both good and bad results were simply beyond her control.
In the legal profession, the temptation to tally is palpable, particularly if you’re a current or incipient star, defined nowadays by a bulging book of business, a solid streak of wins in the courtroom, or a monthly total of billable hours that exceeds the amount of time most people are awake.
It may sound crazy (it certainly does to nonlawyers), but it is part of what defines the legal landscape. Look around:
Who among you is above the occasional temptation to carve a notch, figurative or otherwise, in your belt or briefcase to remind yourself and, perhaps, to show the world, that you’re someone to be reckoned with? It’s only natural. But so, I think, is the tendency to wonder what it’s all about, at least at some point in one’s career.
Although Greta always enjoyed having something to count, winning had come to feel less and less like an accurate yardstick of how she was really doing.
We talked about her memories of law school, where grades and making law review were the markers that mattered most, and success was measured by class ranking. That, we agreed, is related to the fact that few students seem to leave law school having been sensitized to alternative sources of satisfaction—things that don’t fit neatly into the win-lose/zero-sum model of legal reality.
Recent research shows that students who come to law school with a strong sense of intrinsic motivation—helping others or making a difference—very often experience a dramatic shift toward extrinsic motivations during law school.
Their focus then tends to be on such factors as making a lot of money and impressing other people. What one ultimately chooses to count, if anything, will likely be closely connected to these sources of motivation.
Greta understood this and was now, as a veteran attorney, ready to explore other ways of gauging success.
That’s where I thought that maybe I could help.
MEANINGFUL CRITERIA
Here’s what I did. I contacted lawyers I knew who had found ways of keeping score that gave them both new criteria for success and a greater sense of satisfaction in their work. It seems to me that what is particularly important is that the criteria be truly meaningful to the lawyer who adopts them.
In other words, counting any given item will be valuable to the degree to which it reflects what is important to the lawyer, regardless of what the larger culture deems important.
A particularly creative example comes from UCLA law professor Gary Blasi, who has spent considerable time litigating class action cases for the homeless of Los Angeles.
“I had very good access to the government’s data,” he says, “and I kept a running tally of how many nights had been spent in a bed and not on the streets of L.A. as the proximate result of orders our litigation team had obtained, and the dollar value of benefits obtained for people who had been wrongly denied them. My recollection remains hazy, but I remember that the former number was in the hundreds of thousands and the latter number in the hundreds of millions.”
Another lawyer, who preferred that his name be withheld, describes the fluid nature of his criteria for success and how it caused him to revise over the years what he kept track of.
“When I started practicing law the scorecard was primarily about the wins … . But later in the game my definition of win moved into a more malleable framework involving best options and best outcomes on an ethical scale.
“At that point, I kept score by how many wrongs had been chipped away by argument, trial record and decent options for appeal. The formerly simple elements of a win had become inapplicable. I started caring more about breaking the cycle of inequality, inept argumentation, and acceptance of systemic infirmities. Today I see the scorecard as being one of titration and incremental change. Anything I can do to improve an imperfect system is a win.”
Maureen Holland, a holistic lawyer at Holland & Associates in Memphis, Tenn., says that for a great many lawyers, telling stories is a way of keeping score, as the stories tend to demonstrate success, however it is defined.
“Holistic attorneys like stories, too,” she says. “They tell of how they won by not using humiliating, purposely embarrassing or argumentative tactics, but by showing the truth and how the truth corrected a horrible wrong. They tell stories of how they didn’t lose their tempers in the face of outrageous behavior.”
COUNTING COMPLIMENTS
Lawyer and mediator M. Beth Krugler of Fort Worth, Texas, keeps score the usual ways, she says. “How much revenue did this week produce?” is an example. But what really makes her feel like a winner, she says, “is when a lawyer tells me I’m really creative or that I have a lot of good ideas. Hearing something like that totally floats my boat—for days.” While she may not actually count these compliments, their frequent iterations have a significant impact on her sense of how well she is doing what is most important to her.
And for Elizabeth A. Alston, an attorney and ethics adviser with Alston Law Firm in New Orleans, the counting is all about the personal side of practice. “I keep score with a collection of thank you’s from clients, such as, ‘You are correct—sometimes an apology goes a long way,’ or, ‘Thanks. You are a lifesaver,’ or ‘I am grateful you are my lawyer.’ ”
Although there is clearly nothing revolutionary about this, it speaks to the importance of consciously choosing where to look for value.
“For success measuring, I don’t pay attention to billable hours and my wins are at best Pyrrhic victories,” says Paul Mones, a Los Angeles attorney who is best known for representing abused children who kill their parents. “Just getting a better sentence than the maximum indicated is a win. After having a homicide trial in Texas result in a hung jury and a subsequent plea, my co-counsel sent me a framed poster of a gunslinger with the caption, ‘Gunfighters Don’t Charge by the Bullet.’ That seems to say it all on a certain level.”
As it happened, none of these hit the mark exactly for Greta. But that pleased her, as it made it necessary to do some soul searching and arrive at a system that would bring out the best in her. She’s still working on it.
Finally, I told Greta to keep this in mind: You may develop the ideal scoring system, one that inspires you to do your best and stay unwaveringly on task. That’s good. But remem- ber, too, that you have access to something that, while a bit more earthy, will usually tell you what you need to know: a simple gut check.
And who knows, maybe it will tell you at some point that counting is no longer necessary.
Steven Keeva is the author of Transforming Practices: Finding Joy and Satisfaction in the Legal Life.
