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High Power, Low Volume: The Dynamics of Feminenglish, Part II

Posted in Law firm practices, Legal Project Management

Unplugged MicrophoneTypical of the way catchy neologisms leap into common currency, there’s a hot new compliment making the rounds these days: “So-and-so speaks truth to power.”  The connotations of this high-powered compliment are rich indeed, suggesting here’s a person who is confident, courageous, smart, principled, forceful, truthful, and outspoken.

The so-and-so receiving this compliment is almost invariably male. That’s because it’s difficult – and frequently risky – for women in the business and legal world to speak truth to power.  And when they do, suddenly it’s not praiseworthy behavior. It’s…aggressive, confrontive, rebellious, self-aggrandizing and somehow inappropriate. For example, Academy-Award winning actress Jennifer Lawrence (the world’s highest paid actress in 2015) recently wrote:

A few weeks ago at work, I spoke my mind and gave my opinion in a clear and no-bullshit way; No aggression, just blunt.  The man I was working with (actually he was working for me) said, ‘Whoa! We’re all on the same team here!’  As if I were yelling at him. I was so shocked, because nothing that I said was personal, offensive, or, to be honest, wrong. All I hear and see all day are men speaking their opinions, and when I give mine in the same exact manner, you would have thought I said something offensive.”

Women in a Meeting – and Elsewhere

In the first post in this series (“Battling Law’s Second Language,”) we coined a neologism of our own, describing Feminenglish as a distinct intergender communication dialect, “a language of self-defense, of frustrated communication, of lost and stolen ideas … of stymied career progression.” We noted that it is most observable in group meetings.

Feminenglish is a complex, shape-shifting phenomenon, an exercise in constant situational adaptation, of flying below the radar. Men often deny that it exists (or if it does, it’s not through their manipulative motives). High-powered women in law and business know it exists, that it represents the omnipresent backbeat in the rhythm of group communication. For women, Feminenglish represents an added layer of discourse, the simultaneous translation of what you want to say into a mode that does not make waves.  As Washington Post reporter Alexandra Petri puts it, “you start with your thought, then you figure out how to say it as though you were offering a groveling apology for an unspecified error.”

Signature Symptoms

Although infinitely nuanced, Feminenglish frequently has a number of common “tells.”  The first and most frequent is simmering silence, a rapid intake of breath through the nose and a forward-leaning shift in posture communicating that we wish to speak…sometimes followed by a silent, discouraged sigh: Better to sit down and shut up. Sullen silence often is accompanied by other adjustments in posture intended to communicate a sense of “what’s the use?”: shoulders rolled forward, eyes lowered or averted, hands and arms held close to the chest. Later, when someone else trots out the idea that the frustrated speaker decided not to articulate, we see a pained wince, a rolling of the eyes.

Sorry I’m So Stupid

Feminenglish also builds on frequently employing a self-effacing disclaimer or apology, meant to signal acknowledgement that it is presumptuous and inappropriate to try to break into the flow of conversation:

  • I’m sorry, Stan, but if I might venture a thought… “
  • I don’t mean to speak out of turn, but…”
  • “Maybe I’m off-base here, but…”
  • “I don’t know. This may seem like a dumb idea, but…”
  • “Of course I could be wrong, but…”
  • “Maybe this would be better brought up later, but I just want to suggest…”
  • “Forgive me if this seems out of line, but…”

Note that the classic disclaimer construction always sticks the word “but” after the initial ritual self-flagellation. In common English usage, sticking “but” in the middle of a sentence negates everything that goes before it (“That was a pretty good presentation, Ed, but…”).  Not so in Feminenglish, where the use of “but” is intended to open a little teensy-weensy door through which the speaker might presume to push through a smidgin’ of substantive content.

Con Permiso

Closely related to the disclaimer is a respectful request for permission to speak, utter an idea, state an opinion, or ask a clarifying question:

  • “Can I possibly raise a concern here?”
  • “May I suggest an approach that we might consider?”
  • “Could I take a moment to respond?”
  • “I’m sorry to break into your train of thought, but could you clarify …”

Sadly, this conversational gambit frequently fails.  All the parental figure who has been asked permission has to do is say, “Maybe we can get to that later,” or “Sue, why don’t you and I discuss that off line,” or even, “Well, let’s move on.”  Boom. Total power asymmetry. Big time denial of respect in front of the group.  Loss of face.  Feminenglish speakers have learned that asking permission is dangerous unless you know you will be accorded attention and consideration – and how often is that?

Asking a Question?

Uptalk, a lift in inflection at the end of a phrase, is how we ask questions in English.  We laugh when millennials and other lower-order life forms default to uptalk for declarative statements (“He’s, like, so awesome?”).  Yet Feminenglish contains uptalk all the time, because its speakers have learned that asking a question can serve as an oblique way to state an opinion:

  • “Would it make sense to run that idea past the client?”
  • “Why don’t we consider using associates in our Houston office for the preliminary discovery?”
  • “Does it make sense to explore early settlement, since the client has emphasized real cost constraints?”

Hiding in the Tall Grass

In an effort to avoid the personal body shots that often come when they presume to speak for themselves or take a personal stand, Feminenglish speakers frequently use the nominative “we” rather than “I” to invoke the spirit of collaboration, consensus and team play. They have learned a basic rule of Feminenglish grammar: “I behind we, except after thee.”

Petri suggests, for example, that a Feminenglish translation of:

“I came. I saw. I conquered” would be:

“I don’t want to toot my own horn here at all, but I definitely have been to those places and was just honored to be part of it as our team did such a wonder job of conquering them.”

Who You Callin’ Passive?

The safest tactic, of course, is to eschew all reference to oneself (as part of a team or not) and hide behind the grammatical anonymity of the passive voice.  Thus, “I can’t do that” becomes “It will be impossible for that brief to be completed by Tuesday.”  Similarly, “I think that’s a really stupid approach” can be expressed passively as, “there is a significant likelihood that that approach might not succeed.”  The subjunctive voice is helpful too: it’s a lot less confrontive to say, “might” and “could,” than to assert “shall” and “will.”

Join the Discussion…Please

In our next post, we will discuss where Feminenglish comes from and where it is likely to lead.  As lawyers would put it, the issue will be joined. We hope for an active debate.  Meanwhile, please add your fuel to the Feminenglish fire – on one side or the other — by taking us up on our previous request to send us your own experiences, examples and, yes, opinions.

© 2016, Pam Woldow and Doug Richardson. All rights reserved. No part of this article may be copied or reproduced without prior written approval.

Battling Law’s Second Language

Posted in Law firm practices

Chalkboard FeminenglishAmericans are derided in foreign cultures because so few of us speak a “foreign” language. We simply figure that in light of America’s overwhelming economic, political and cultural power, we are entitled to demand that everyone around the world – particularly lawyers, business people and airline pilots — speak to us Americans in the way that is most convenient to us.  “Be reasonable,” we insist. “Say it our way.” And we marginalize those who don’t, consigning them to the realm of subtitles.

Yet a huge percentage of Americans do speak – actually are forced to speak — a second language, and the irony is that they are both compelled to speak it and yet are ridiculed for speaking it. Damned if they do and damned if they don’t.

What’s That You Say?

We speak, of course, of a language we might call Deferential English. Actually, because our national second language is so predominately expressed in the dialects and manners expected of the gentle sex, let us propose a more honest designation: Feminenglish.

This is the language imposed by men – with a wink, a steel fist (whether in a velvet glove or not) and feigned innocence – mostly on women, at least in the legal and business world.  While it may sound a lot like “regular” English, Feminenglish has a distinct and distinctive vocabulary, grammar, syntax, volume, gestures, mannerisms, timbre, and intonation. It is the dialect spoken by the legal and business world’s women. Often most notable in group meetings (The Washington Post’s Alexandra Petri describes “Women in a Meeting” as a “language of its own”), Feminenglish is no less common, and no less damaging in one-on-one male-female interactions.

Feminenglish is mediated discourse, a dialect that requires women to worry about dodging a bullet even as they try to make a point. It is the language of self-defense, of frustrated communication, of lost and stolen ideas, of stymied career progression…of resentment. It is a language that both reflects and perpetuates a profound socio-cultural imbalance of power – both in the legal profession and elsewhere.

Tellin’ It Like It Isn’t

If business English – essentially masculine English — is the language of power and dominance, the language spoken at the table by those who have won a seat at the table, Feminenglish is the language of deference to power; it is the dialect of circumscribed authority, of the overwhelming importance of not giving offense, lest one be humiliated, criticized, marginalized, ostracized or simply ignored in the course of important communications.

Let’s be clear: Feminenglish is a seriously compromised mode of communication. The effect of Feminenglish is to suck the energy out of communication content. To dilute the force of ideas in a fog of understatement and a veneer of apology. To compel oblique circumlocution and discourage a powerful thinker from claiming individual ownership of their intellectual currency. It’s not hard to understand why, by and large, even Feminenglish’s most adroit speakers don’t like Feminenglish.

Feminenglish perpetuates unproductive gender stereotypes. It’s also a huge waste: To the extent it encourages men to discount the contributions of women – to interrupt them, to appropriate their ideas, to demean them as weak, indecisive or passive – it reflects a huge disincentive for women of enormous talent to stand and deliver.  Strong women who do not wish to be forced to speak Feminenglish have the option to vote with their feet.  And they are, marching en masse out of law firms, out of legal departments, out of the legal profession altogether.

But They Do It

Other languages – German and French come to mind – also have multiple grammatical cases depending on who is speaking and who is spoken to, but they use variations in grammar, declension and conjugation to reinforce cultural norms of formality/informality and relative intimacy – irrespective of gender.  To our knowledge, the only formally “gendered language” where men speak like men and women speak like women is Japanese – not surprising in a culture based on its canons of deference, as well as the subservient status it has historically imposed upon women.

Supposedly those qualified to practice law speak their own arcane second language: Legalspeak. This is a gender-neutral language based on competency, a language that communicates mastery of subject-matter expertise, breadth of knowledge and business savvy and astute legal judgment. Supposedly Legalspeak is what clients are paying law firms for, the tongue in-house lawyers are salaried to speak. In the real world of interpersonal communication, however, all too often Feminenglish trumps Legalspeak.

What Are You Talking About?

It’s possible that you have read this far without a flash of recognition going off, particularly if you are of the male persuasion.  If so, quickly convene a group of women – any size group – and ask, “How many of you have heard described as ‘aggressive’ in women the same behaviors that are described as ‘assertive’ in men?  Raise your hands.”  We guarantee that the uplifted arms will block out the sun. For those of you in denial, this should serve as a practical demonstration that we are not whistling Dixie here.

Still can’t imagine what Feminenglish sounds like?  Here’s a couple of examples, courtesy of Alexandra Petri’s recent Washington Post article, “Famous quotes, the way a woman would have to say them in a meeting:”

“Give me liberty, or give me death!”

Woman in a meeting: “Dave, if I could, I could just – I really feel like if we had liberty it would be terrific, and the alternative would be just awful, you know?  That’s just how it strikes me. I don’t know.”

“I have a dream today!”

Woman in a meeting:  “I’m sorry, I just had this idea – it’s probably crazy, but – look, just as long as we’re throwing things out here – I had sort of an idea or vision about maybe the future?”

 We’re Baaack

You may ask why a couple of bloggers best known for expertise in Legal Project Management (LPM) have chosen to wade into the murky swamp of intergender dynamics.  Simple.  LPM is a discipline with a dual purpose: better legal service delivery and improved law firm-client relationships.  LPM promotes greater efficiency and effectiveness , but it is not just about methods and systems and budgets and metrics. LPM also is a communication engine, a set of practical protocols that drives better interactions. Anything that impedes clear and candid communication erodes efficiency and fosters discord is anathema to LPM, and that certainly includes Feminenglish.

In 2015, we published a series of posts about social science research demonstrating the damaging impact of Manterruption and Bropropriation, that is, the tendency of men to interrupt women in group communications and appropriate their ideas and insights as their own. Obviously, these communication habits foster Feminenglish and operate as performance disincentives.  We quoted researcher Dr. Arin Reeves: “We cannot talk about women’s retention, advancement and leadership in the workplace without exploring what happens when women are constantly interrupted. If women cannot even be heard, can they truly advance into leadership?” [emphasis added]

We took a lot of heat for those posts (“When did you become such whining feminists?”), but we also got an avalanche of thank you notes.  And friends, we’re at it again, because when it comes to Feminenglish, it is irresponsible – perhaps immoral – to let sleeping dogs lie.  In our next several posts in this series, we’re going to look first at how Feminenglish is spoken and then explore how to escape its debilitating grasp.

More important, we are asking for your help. We’re trying to open up discourse on this subject.  In future posts, we will share examples (anonymously, if preferred), in order to shine a light on the problem and support solutions to the current asymmetry in communications. Please share your experience with us. We’re happy to provide airtime, and we are all ears.

Please tune in for subsequent posts in this series.


© 2016, Pam Woldow and Doug Richardson. All rights reserved. No part of this article may be copied or reproduced without prior written approval.

Wishin’ and Hopin’ … and Sittin’ on Your Hands

Posted in Legal Department Management

heads-in-the-sandWhat if you invented a better mousetrap, but the world didn’t beat a path to your door? What if you developed a promising new medicine for a troubling condition, but when the doctor prescribed it, the patient refused to take it, simply sticking it in the desk drawer while continuing to complain about the malady?

At the very least, you’d lament lost opportunities.  At worst, your disillusionment and cynicism would drive you to check out of Frustration Hotel and repair to the nearest solo-occupancy desert island.  And so it is with many of us trying to improve the current state of the legal profession.

What If the Paradigm Doesn’t Shift?

Recently Stephanie Kimbro, a respected, gifted and innovative thought leader in the legal profession, wrote an utterly discouraged and discouraging blog post in which she threw in the towel:

I have written, researched, co-founded, created, evangelized, volunteered, taught and counseled lawyers and others in the legal profession…I was originally motivated by the idea that I could make an impact on the legal profession, educate lawyers to use technology to improve the delivery of legal services, and help increase access to justice…After fighting uphill battles and still seeing the pace of adoption and attitude change go at a snail’s pace, I’ve decided to stop trying.

The issue here is not simply the tragic loss of Ms. Kimbro’s wisdom and insights, the loss of a committed resource to the legal profession.  The bigger problem is the legal profession’s denial of profession-threatening  economic paradigm shifts and its resolute resistance to innovations, technologies and methodologies that could make legal service more effective, more efficient, and, above all, less costly.

In the face of forces, factors and developments that pundits told us would fundamentally alter – for the better – the law firm-client relationship and the modus operandi of legal service delivery, a profession still ruled by the nattering nabobs of negativism (Google it) continues with its head stuck firmly…in a state of denial. The sleeping giant simply will not wake up.

Who Is to Blame?

The malady is confined neither to lawyers in law firms nor lawyers working in-house.  All too many still sit passively as momentous events and forces threaten to steamroll them.  There are innovative law firm leaders who are attempting to lead, but the rank and file simply are not following. Most law firm lawyers still swear that the billable hour – which equates value conferred with the amount of time spent delivering service – will have to be pried from their cold, dead hands.  And game-changing technology?  If a new software tool requires more than two key punches, fuhgeddaboudit.

Still, when it comes to assigning responsibility for antediluvian legal business practices, we must cast the lion’s share of the blame on the client – on in-house counsel responsible for selecting, managing and, if need be, imposing discipline on outside counsel.  Law firms’ resistance to change can be understood, if not forgiven, because they are simply clinging to an historical economic and bargaining imbalance that long gave them the upper hand and made them a lot of money.

Oh, Poor Pitiful Me

Harder to fathom is the lethargy of in-house counsel. Sulking on the other side of that wall between firms and clients (a wall that many optimists like ourselves hoped could be demolished by improved techniques for law firm-client collaboration and communication), the in-house folks continue to wail and rend their garments in response to the draconian cost pressures they are experiencing, all the while proceeding to do nothing about it except demand discounted billing rates from their outside counsel (a stratagem shown to play well with the execs in the C-suite, but produce absolutely zero reduction in overall legal costs).

William Henderson, a professor at the University of Indiana’s Maurer School of Law and a pioneer in the rapidly evolving discipline of Legal Project Management, recently simply could not contain his astonishment at the inability and unwillingness of in-house counsel to exercise the negotiating leverage that the global financial crisis has bestowed upon them: “I overestimated the ability of in-house lawyers to effectively use their purchasing power in their own long term interests.”

It’s All a Matter of Will

As we see it, this problem basically is a matter of will —and will not:  1) In-house counsel lack the will to compel beneficial changes. 2) Law firms will not change.  Oh, they would if enough important clients imposed sufficient disincentives to their inflated billing practices and  inefficient, hidebound service delivery methods.

But clients can’t…or won’t…or don’t know how.  As a result,  a variety of proven innovations – including requiring accurate budgeting, alternative fee arrangements, using e-billing for data mining firm billing practices,  RFPs with real pricing teeth, Legal Project Management,  Legal Process Improvement, Legal Process Outsourcing, integrated budgeting and project management software,  to name but a few – have failed to gain traction and enjoy wide acceptance.  For the moment, it appears to us as if the Luddites are winning.  Ms. Kimbro’s frustration is understandable.

In an email stream attendant to the 2015 annual conference of the Association of Corporate Counsel, consultant Susan Hackett, former General Counsel of the ACC, tweeted about “VMWare’s wish for firms to stop charging as if every matter is one of first impression; stop charging to re-invent the wheel.” When I responded that “the solution is for clients to decide and reinforce what they WILL pay, instead of making the same time-worn complaint,” one in-house counsel (and I trust he was just being sarcastic) responded,

I wish the lawyers whose huge bills I keep paying without question would suddenly start charging me less without me asking.”

When Pigs Fly

Oh, sure, that’s gonna happen (just beware of all those flying pigs). Dusty Springfield once sang a pop ballad called “Wishin and Hopin’,” the refrain of which was that “wishin’ and hopin’ and thinkin’ and prayin’, dreamin’ every night of his charms, won’t get you into his arms.”  In other words, to get what you want, you have to take some action and create meaningful incentives in order to compel needed change. For in-house counsel, it really is time to stop wishin’ and start taking action.

One would think that today’s economic imperatives and drastic budgetary complaints would impel in-house counsel to exercise their newly-acquired leverage.  So far, sadly, inertia is winning out over pain.


© 2015, Pam Woldow and Doug Richardson. All rights reserved. No part of this article may be copied or reproduced without prior written approval.

Strategic Pricing: Creating Conditions to Succeed

Posted in Law Firm Profits



The difference between pricing legal work the way law firms have always done it and strategic pricing is simple: The former looks at the price tag from the law firm’s point of view, focusing on revenue and profitability.  The latter focuses not on how much clients can be convinced to pay, but on perceived bang for the buck, that is, how the client looks at value in the context of its overall business. 


The Plan, Boss, The Plan!

Every year, most law firms undertake a strategic planning process, and every year their top three goals are the same:

  1. Generate more revenue
  2. Become more profitable
  3. Make certain we have (or go get) the right talent to achieve items 1, and 2.

If you read further into the strategic plan summary that every partner parks in a bottom desk drawer, somewhere waaaaay down the list of firm objectives you may find some vague reference to measuring client satisfaction or client performance management.

These plans – wish lists, really –  tend to be perennial exercises in futility: they neither serve as practical roadmaps for lawyer behavior nor provide practical steps for revenue-enhancement, increased profitability and sophisticated talent management.  As a result, they serve as poor foundations for internal pricing practices.

The Tendency Toward Navel Staring

Unfortunately, all too often law firms treat pricing as an inwardly-oriented activity that generates a price-point that then is imposed on the client. This fosters a mindset that asks only, what will the traffic bear?  Today this mindset is not working.

Every law firm managing partner will tell you that it is becoming progressively harder to land work – new work or repeat business — in today’s competitive marketplace.  Fierce competition for a piece of an essentially fixed pie has triggered an all-hands-on-deck approach to business development. No more trichotomy between finders, minders and grinders.   Today, every partner must go beyond being a profitable individual contributor.  To avoid being marginalized or “made available to the market,” he or she must also be a successful rainmaker and a mini-P&L center.

And even putting all the troops on the front line is not maintaining – much less growing – the revenue stream. Despite their yearly plan to make more money, today many law firms are struggling to stay even: 35% of large law firms’ revenues are declining.

It’s surprising that more firms don’t consider an obvious truism: if clients are not satisfied – if they don’t think their interests are being given top priority by outside counsel – goals 1 and 2, above, are unattainable; clients will take their work and money elsewhere.  As for goal 3, merely having a lot of skilled bodies on the bus will not automatically realize the firm’s financial goals – not unless the clients feel they have received fair value for the cost of services and continue to engage that talent.

This intense emphasis on BD means that most law firm’s strategic plans look through the wrong end of the telescope, concentrating on sending more feet out on the street to beat more bucks out of the bushes. What should be happening is that pricing, revenue and profitability should be looked at through a broader lens: a shift in focus toward a client-centric view of the legal world in which alignment with client goals is Priority One, Job One, and Metric One.

Client-Centric Thinking

In an era where law firms no longer call all the shots in the law firm-client relationship and where bargaining leverage has shifted to the client, law firms’ cards-held-close-to-the-vest orientation does not foster client satisfaction or trust. In negotiations, an adversarial backbeat persists, the client constantly worrying, are we going to be paying too much for this outcome?

On the other hand, strategic pricing, which is built on a detailed inquiry into how the client defines value, can become the keystone for a relationship where the client feels that the costs relate fairly and efficiently to his needs.

Instead of asking, “How much money do we want to take in this year?” and “What rates and pricing structures are necessary to hit our numbers?” law firms should be asking “What can we do to more fully understand not just our clients legal needs, but also their business needs?” That question answered, firms should then ask themselves, “How can we meet those needs more consistently, efficiently, and predictably?”

Framing the Strategic Context

Before the firm fires off a pricing proposal, its lawyers need to find out what the client really wants and expects from the work they are considering  sending  to the firm.  Unless a lawyer is performing true commodity work, where each matter is exactly like the next and the desired outcomes are identical, the firm’s pricing experts must first ask the client some key questions to create a strategic context for the legal work:

  • What are the client’s primary goals – the key deliverables — for this matter? What constitutes a win from the client’s point of view? What are the stakes?
  • If these goals are achieved, what benefit will that provide the client?
  • What budget do they have in mind? (And be clear: clients always have a budget number in mind.)
  • What criteria do they use to evaluate outside counsel?
  • As members of the in-house legal team, how are they evaluated for how well they manage outside counsel and outside legal spend?

These framing questions are entry-points for further nuts-and-bolts pricing discussions. The client’s answers to these threshold inquiries will, in turn, shape and direct further questions that lead to accurate and comprehensive understanding of the engagement.

Now It’s Numbers Time

It is only when  a lawyer fully understands the full sweep of client goals and priorities that strategic pricing can begin.  That is one reason why simply pulling a budget from a prior matter off the shelf so often leads to disaster.

For example, if an earlier budget was formulated around the goal of resolving a dispute as rapidly as possible, that budget might be heavily front-end loaded with partner time to bring an early-stage full-court-press to bear.  If, on the other hand, the goal of a new matter is to put the brakes on a matter, drag it out, and wear the other side down, the budget naturally will look substantially different.  Bear in mind too that there may be many client voices and interests to be considered:  Lawyers may want to make law and establish precedents, whereas business unit heads who are footing the tab may want to minimize outside legal spend at all costs. Different goals have markedly different budgetary implications. If the lawyer doing the pricing has no idea what the client’s goals are, the budget is likely to be an unrealistic estimate, bad fit, or recipe for overruns down the road.

It is no accident that the Association of Corporate Counsel, in creating their suggested Outside Counsel Scorecard, listed the following service quality criteria for outside counsel (listed in order of importance):

  1. Understood Client Goals
  2. Legal Expertise
  3. Efficiency
  4. Responsiveness
  5. Predictive Accuracy
  6. Effectiveness

Note that understanding the client’s goals is listed first. That understanding is the starting point for having firm lawyers  select the right team, craft the right budget, and achieve an effective (for the client!) resolution of a matter. All other desiderata flow from there.

If firms want to achieve their financial goals, they must support true strategic pricing by incentivizing lawyers to focus on the value they can provide to clients — not just the hourly rates du jour.  That does not mean tickets to ball games or fancy dinners or sending newsletters.  It means talking with clients in meaningful ways – day in and day out, not just when a fee estimate is being prepared — about their business contexts and their goals for the work they are outsourcing to firms. When clients are truly the first priority, the conditions for law firm financial success fall right into line.

© 2015, Pam Woldow, Doug Richardson & Legal Leadership LLC. All rights reserved. No part of this article may be copied or reproduced without prior written approval.

Five Critical Questions Every Client Should Ask Law Firms About Budgets

Posted in Legal Department Management

imagesAlthough dramatic changes in law’s economic landscape have conferred far greater bargaining leverage and purchasing power on clients, in budget discussions with outside law firms, many in-house counsel just aren’t asking the right questions. Clients simply cannot optimize budget planning and management without  knowing the answers to these five questions:

  1. Has the Budget Process Included Input from Primary Client Stakeholders?

Going beyond negotiations among lawyers on the law firm and client side, the budget must reflect input from client constituents who have “skin in the game.”  This is especially important where a client business unit is paying for the legal services even though the company legal department is assigning the work to outside counsel.  What may seem important (or acceptable in cost) to in-house counsel may not have the same level of acceptance by line management and business group “clients.”

  1. Does the Law Firm Have Appropriate and Adequate Resources to Deliver the Work Described in the Budget?

Many clients take the competency of outside counsel as a given. But there may be gaps in the capabilities even of well-respected firms, in terms both of subject matter expertise and “person power.” Partners in law firms are ambitious people, and in today’s competitive environment, there are times when the “promise” of services evidenced in the budget exceeds the firm’s “power” to deliver them.  That may mean, for example, that associates assigned to certain matters have insufficient knowledge and experience, which can lead to considerably more partner time than was contemplated by the original budget.

Another common resource allocation issue is law firm turnover.  For example, a particular practice group may have 15 – 20% annual turnover of associates (not uncommon), which leads to a constant and expensive (in terms of delays and costs) “churn” of the team working on a client matter.  The client is entitled to understand how the law firm will select and manage the team in order to stay within budget and achieve the client’s goals.

  1. Does the Budget Reflect Risk Management as well as Just Getting Tasks Done?

A good budget should include both a thorough exploration of client goals and a clear-eyed assessment of legal risks.  The budget should identify potential risks and unexpected events, determine the likelihood of their occurrence, and evaluate the anticipated financial impact of each risk to the client.

  1. Does the Budget Include Legal Work That Is Not Essential to the Client Goals for the Matter?

Law firm lawyers often have a hard time distinguishing between fundamental and incidental legal work, between what must be done to reach the client’s goals and turning over every rock along the path. Historically, firms have been driven to take every step, conduct all research, look at every case, and explore every rabbit hole in order to deliver legal services – and to keep the billing clock running, as well.  That may be appropriate in some matters, but more often exhaustive lawyering just is not needed.  And in today’s cost-constrained legal environment, clients view “overlawyering” as a cardinal sin.

  1. Does the Budget Include a Mechanism for Effective Communication and Keeping Key Client Stakeholders Appropriately Informed of Matter Status?

Budgets are not just about numbers; they’re also about when and how those numbers are communicated to the client. Excellent communication takes time, and clients may have specific needs about how and when they need status updates.

If the client needs reports in certain formats, wants reports to include cost and risk projections, or wants outside counsel to participate in weekly telephone check-ins, the budget should include line items for the needed communication. By including the communication as a separate budget item, the clients can assure themselves that their outside counsel are focusing on their specific needs and that there won’t be complaints (and requests for budget changes) about how much time updates are taking.

© 2015, Pam Woldow and Doug Richardson. All rights reserved. No part of this article may be copied or reproduced without prior written approval.

Manterruption III: Reader Responses & Connecting the Dots

Posted in Legal Project Management

connectthedotsIn several recent At the Intersection posts, we commented on some important social research discussing men’s pervasive tendency to interrupt women in group meetings or settings where the power stakes were high (“manterruption”) and to appropriate women’s ideas as their own (“bropropriation”).  We did not conduct this social research; we just reported on it. Yet these posts triggered a torrent of response, some of which was gratifying to us and some of which was pretty bewildering, given that it came from  a group supposedly known for its commitment to rules of law and principles of fairness.

You Got That Right

First, we want to express our appreciation to the many lawyers – both female and male – who wrote to thank us for shining a light on a very common and significant problem that all too often gets swept under the rug. We heard numerous war stories and horror stories, examples of oppression and suppression that basically said, “yeah, the researchers are right on the money: women’s professional leverage, leadership and advancement really are obstructed by their inability to get fair and respectful air time.”  We heard from women in both law firms and legal departments, as well as from women who had left the legal profession because of their inability to be heard and get traction among dominance-seeking male colleagues.  One typical example:

I would like to send your article on “Are You a Manterrupter?” to the group of young women I mentor.  And I’ve spent the last two days dealing with a man who keeps mansplaining to me.  It’s exhausting.

One of the most poignant of these responses came not from a woman, but from a male Practice Group Leader in a 500+ lawyer firm (his comments have been slightly edited to preserve confidentiality):

My daughter, who is an associate in another firm, sent me the link to your posts and asked me to read them because she said they captured exactly what women – including her – commonly experienced at her firm. My reaction to the posts was, “Nah, this can’t be.  I guess this is the new hot topic for feminists to spout off about.” However, I did start observing the gender interactions in my firm more carefully.  At the next few practice group meetings, I kept tabs on the interactions and interruptions on the edge of my legal pad. The results of my ad hoc research were sobering, because they revealed levels of ‘manterruption’ and ‘bropropriation’ that were far worse than those the social service researchers noted in their interviews.

Stifle Yourself, Edith

By way of counterpoint, we also received responses awash in heated denial asserting, in effect, that we were slandering men, that either manterruption doesn’t happen, doesn’t happen much, or is simply a cost of doing business in a competitive, power-oriented professional environment (you know, the old “if you can’t stand the heat, get out of the kitchen” argument). Should we have been surprised that articles about how often women are told to sit down and shut up were greeted with catcalls suggesting that the articles’ authors should sit down and shut up?

The “protesteth too much” tone of these responses suggests to us that they were probably written by inveterate manterrupters, rather than by lawyers with superior emotional intelligence, keen active listening skills, and the predilection to respect other people.  In pleadings parlance, many of these responders issued a General Denial.  We do not expect the resesarch or our comments to change their minds.

And Most Surprising of All…

We were prepared to be told that we might be wrong about the whole manterrupter controversy.  We were not prepared to be attacked personally, to be told that we lacked the standing and objectivity to write about compromised communication between genders.

“You guys are supposed to be experts on Legal Project Management, not diversity and gender issues,” came one response. “What qualifies you to play social scientist? Why don’t you just stick to your own knitting?” Another wrote, “When did you become such feminists?”

Okay, Here’s the Connection

For those folks who feel we should silo our expertise and our opinions, let us connect the dots between effective communication needed in Legal Project Management (LPM) with the research. We are indeed staunch advocates of LPM as a discipline that sharpens legal service delivery and aligns law firm-client relationships to produce better collaboration and better results for all concerned.  And, we have the opportunity to see many, many dysfunctional legal service delivery teams.  The research of Professor Adams, Dr. Reeves and others piqued our interest because it spoke to one of the dysfunctions we have observed repeatedly: crippled communication.  When you silence, interrupt or appropriate ideas from team members, you destroy team communication.  When there is a disproportionate impact on female lawyers, it is not surprising to see their early departures from law firms.

As we so often assert, LPM is not simply a mechanistic system of procedures, methods and metrics.  Done well, it also is a powerful communication engine, a common sense and intensely human approach to breaking down the walls that have traditionally put clients and their outside counsel at odds. In our minds, the word “relationship” is a functional description, not a touchy-feely talisman.

A fundamental axiom in LPM is “all of the players must be kept in the loop all of the time.”  In other words, communication is crucial – candid, complete, and timely communication.  And, oh, yeah: respectful and receptive, too.   Any set of biases and attitudes that systematically stifles communication is profoundly counterproductive and erects a barrier to efficiency and productivity.  It is vitally important to get sand out of the gears, wherever and however it may sift in; there is no benefit to driving efficiency into some areas of legal service delivery while tolerating inefficiency in others.

© 2015, Pam Woldow and Doug Richardson. All rights reserved. No part of this article may be copied or reproduced without prior written approval.

ValoremNext: A Better Mousetrap…And Beyond

Posted in Legal Department Management

ValoremNextTwo lawyers well known for their innovation, and perhaps for their iconoclasm, are going beyond trying to invent a better mousetrap. Today they trotted out the design for a new mouse.

Jeff Carr and Pat Lamb have long collaborated on efforts to reshape the law firm-legal department relationship, and in so doing have not hesitated to reimagine both law firms and legal departments. Jeff was a well-known change catalyst during his 13-year tenure as General Counsel of FMC Technologies, Inc. [FMCT] (during which he reduced legal department spend by over 40% even as FMCT’s revenues increased fourfold), and Pat (a former BigLaw partner) is a founding member of and a driving force in the now 7-year old Chicago-based Valorem Law Group, a New Model litigation firm noted for providing clients with new approaches to defining, pricing and delivering value in legal service delivery.

Thought Leaders Thinking Alike

Today they announced that Carr, who retired from leading FMCT’s legal department in 2014, will join Valorem, an exciting but unsurprising development inasmuch as Valorem and FMCT have enjoyed a long and effective law firm-client relationship. While developing a singularly effective working collaboration over the years,  Carr and Lamb established themselves throughout the legal world as thought leaders both in what they call “Engaged Law,” which emphasizes addressing business problems more than simply selling traditional legal services, and in “Next Law,” which emphasizes preventing various kinds of legal problems before they occur.

Carr and Lamb share an intense focus on value as perceived by the client, a perspective championed by Carr in his work on the ACC Value Challenge while a member of the Association of Corporate Counsel’s board. At the same time, Lamb became a fierce proponent for value-based billing in the form of alternative fee arrangements for high-stakes litigation that were not predicated on any form of hourly billing. His passion led him to pen two books: Alternative Fee Arrangements: Value Fees and the Changing Legal Market and Alternative Fees for Litigators and Their Clients. His intense client focus is apparent both in his blog, In Search Of Perfect Client Service, and his regular ABA Journal column, The New Normal.

A New Mouse Trap

But Carr is not joining Valorem as a litigator or litigation manager.  Instead, he will head up a distinct service platform called ValoremNext, in which he will advise legal departments in preventing the kinds of problems that both wallop outside legal spend and adversely affect their companies’ business operations. Many of these problems focus on litigation and its enormous costs, but Carr emphasizes that ValoremNext will also advise clients on avoiding issues relating to corporate contracting and business operations, as well as best practices for legal departments.

We asked Lamb if it was not counterintuitive, if not potentially suicidal, for a litigation firm to offer sophisticated litigation prevention services.  “Look,” said Lamb, “let’s be clear: there will always be litigation.  The plaintiff’s bar is not going away, and there will always be unavoidable breakdowns in business transactions. We can hold our own in the litigation marketplace, especially with our cost-effective approach to value-based billing and more efficient management of litigation.”

 Redefining the Mouse

“But beyond that,” Lamb says, “ we’re convinced that our long term interests lie in showing clients not just that we are skilled litigators, but that we are wise collaborators in meeting the needs of both the legal department and the business as a whole.  ValoremNext’s strategic goal is to foster the kind of relationships we enjoyed with FMCT over the years – relationships that start with the client, end with the client, and have the client deeply involved in every stage in between. Who can do that better than Jeff Carr?”

Carr concurs that the prevention platform makes solid strategic sense and represents a fundamentally different way of looking at legal service delivery. “The best legal problems are the ones you don’t have. We are going to provide the kind of common sense and managerial tools that are common in the business world, but not so common in the parallel universe of ‘Lawland.’ In working with legal departments, ValoremNext will emphasize that in-house counsel should not operate as lawyers – not legal content and process people; that’s what outside counsel are for. In-house people instead should be business counselors who help clients achieve business success. ”

Points of Entry

“So what will ValoremNext consulting look like?” we asked. “Where will it start and what will it do?” Having long preached that a crucial part of legal project management is rigorous post-project review,  we nodded in agreement when Carr suggested that with many clients he would work first to establish a disciplined After Action Review Process. “Only through this process can a legal department identify the root causes that give rise to problems, as well as defining what has worked well in the past.”

Carr expects to find a second point of entry in legal departments, especially small or relatively budget-constrained ones, that lack the resources, tools or savvy to implement best practices and engineer intra-departmental changes in roles and attitudes. “Our role will not be to lecture legal departments on theory, but to get familiar with their potential issues at the ground level, whether they be environmental, products liability, contracts, regulatory or problems caused by others outside the company. Think of it as ‘hands-on thought leadership.’”


Lamb and Carr acknowledge that it’s too early to tell the directions in which ValoremNext will evolve.  “Any assistance we provide obviously will build on our legal department experience and judgment,” says Carr, “but that may come to include many roles, including ‘Board Whisperer,’ ‘GC Whisperer,’ ‘GC in a Box, or even legal outsourcing resource for certain kinds of hands-on work.

“Two principles impacting legal departments are clear to us, however. First, in the pressure-cooker of providing more with less, more keeps getting more and less (particularly outside legal spend) will keep getting less. While promoting efficiency and consistency will always be a good sell, the step change in cost reduction comes from prevention of problems to handle in the first place.  Second, as the legal profession becomes increasingly client-driven, it will become increasingly value driven. That is our brand, and it is fertile territory for a First Mover.”

© 2015, Pam Woldow and Doug Richardson. All rights reserved. No part of this article may be copied or reproduced without prior written approval.

Manterruption, Part II: The Quest for a Cure

Posted in Law firm practices

Don't InterruptIn our last post we discussed the widespread tendency of men to interrupt women in settings where the power stakes were high (manterruption) and their tendency to appropriate women’s comments and ideas as their own (bropropriation).

This Really Does Matter

We emphasized that this is not a minor impediment to women’s career advancement. As Dr. Arin Reeves states, “We cannot talk about women’s retention, advancement and leadership in the workplace without exploring what happens when women are constantly interrupted.  If women cannot even be heard, can they truly advance into leadership?”  We will leave to another day the question of whether asymmetrical communication correlates directly with the abysmal level of women partners and law firm leaders. But there is no doubt that women are seriously frustrated and disadvantaged by this all-too-common phenomenon.

What’s This Really All About?

Interruption may have many causes or represent a combination of ingredients. Some experts consider a lot of interrupting to be a conversational habit, a byproduct of men historically talking more and women being regarded as having less to say. Or maybe in part it’s a geographic or cultural artifact, not necessarily dismissive or unfriendly. Famed linguistics guru Deborah Tannen has pointed out, for example, that fast-talking New Yorkers interpret any pause as a sign that the speaker has finished.  Others say interruption may actually signal intimacy, kind of an ‘I interrupt because we’re such close friends’ theory.

But our concern should be with Intrusive Interruption intended to perpetuate power disparity. Since most men can sincerely deny malicious intent, what triggers this interruptive urge? Some experts suggest that the problem may not simply be a power thing, although certainly “interruptions can be used to display or gain dominance,” as George Washington University linguist Adrienne Hancock has said. At the more conscious level, interruption may be a behavioral artifact of the whole men-are-from-Mars-and-women-are-from-Venus thing. Communication scholar Stanley Deetz notes than men may be more likely to see conversation as “a competitive game, while women see discussions as being collaborative, hence expecting and giving space for interruption.”

Many researchers, especially experts in diversity, fasten firmly on the unconscious bias explanation, seeing interruption as a culturally learned response that provides the interrupter with some unexpressed but desirable advantage. Interestingly and ironically, research also has shown that when people believe they are not being biased, they frequently exhibit behaviors that are in fact more biased; whereas people who are willing to examine their behaviors for unintentional bias, become less and less biased.  Put differently, people who believe they are not sexist or racist are more likely to make biased decisions because they are not examining their decisions for bias.

How About Some Behavior Mod?

Since we work mostly in the world of law and lawyers, frankly we like the response of one high-powered female litigator: “Let’s cut out all the apologist BS about intentions and attitudes,” she says. “For both men and women, we need to focus on behavior change – on what must be expected, accepted, or rejected in a professional workplace.”

Behavior mod focuses on creating powerful incentives for appropriate social behavior (and disincentives for bad acts). Asking people to simply be something — more virtuous or less destructive – is, in our view, a totally ineffectual tactic. Grown people do not willingly undertake personality transplants, and men will not become less aggressive and self-aggrandizing simply because some “touchy-feely bleeding heart type” asks them to.

Similarly, we see little benefit from bland injunctions like “men need to talk less and listen more” or that women at the table need to “lean in” more, while men should somehow magically become more comfortable “leaning back.”  In our view, conversational parity is a matter of learned behaviors, that is, techniques that can either be learned and reinforced by incentives or extinguished by some form of pain.

In A list of practical things we can do to reduce gender bias at work, Elba Pareja-Gallagher cited a list of constructive actions – targeted to men – and developed by Terry Howard and Claire Brown and posted in Catalyst’s MARC (men advocating real change) site. Frankly, a few of these seem a bit naive and unrealistic: “Do not interrupt,”  “Take turns talking,” and (our favorite) “Incorporate more nonverbal behaviors that facilitate interpersonal communication, support, and interest.”  Oh yeah, that’s easy.

But other items on the list seem like perfectly practical action tactics: “Invite women to meetings that usually are ‘inner sanctum’ only.” “Introduce women into your network.” “Send women to represent the company at a conference.” “Reach out to women to discuss their career goals, instead of waiting for them to come to you.”

Researcher Sheryl Sandberg (see Post I in this series) has some eminently practical suggestions for slowing the cycle where men assert conversational dominance, women hold back, relinquish credit, let their ideas be poached or attributed to males…and then eventually shut down, become more passive and less creative, feel less engaged, and experience anxiety because they fear that somehow they are at fault.  Some of her ideas (listed below with a few added ingredients of our own):

For Everyone:

  1. Get Honest: Admit that unconscious bias and communication role stereotyping exists in both men and women. That is, set the stage for addressing the issue and rejecting the flawed communications status quo. We all need to own up to the problem.
  1. Ban Bad Behavior: Create a “no asshole” rule in your conversational circle or cohort (now sometimes called a “No-Kanye” rule) that explicitly addresses interruption. The idea is that where an explicitly articulated rule is being broken, the group has the authority to call foul. The group sanction is against the behavior, not the communicator’s intent.
  1. Intervene actively. Stop interrupters in the moment. Tap the table. Hold up your hands in a “stop!” gesture. Nudge interrupters or put your hand on their arm.  Better still, speak up: “Wait, please let her finish” or “Hold it, I really want to hear what Donna is saying.”  Rehearse some good interrupt-the-interrupter phrases – and have them locked and loaded.
  1. Applaud: As soon as a woman makes an insightful comment, jump in: “Yes! Good idea, Sandra.” (Don’t forgot to say her name; name recognition goes with respect)
  1. Support Virtue: Praise and support clients, companies, teams and groups that are led strongly by women. Highlight exemplars – and let them know you are supporting them publicly.

For Women in Particular:

  1. Enlist a Male Buddy: Find a sympathetic male who realizes how you’re being shut out and make a clandestine pact: ask him to backstop you in meetings – nodding, agreeing, and calling out male interrupters as needed.
  1. Defend Other Women: Women are shockingly unsupportive of other women publicly. Stand up for female colleagues; if they are going to label a woman as “difficult” or “aggressive,” make them label you that way, too. Let’s #staynoisy like Liz Dolan and identify situations when bias rears its head.
  1. Practice Power Postures: This does not mean acting like John Wayne. It means to study and practice gestures – “leaning in,” standing to speak (and standing firmly on both legs when you do), gesturing with your palms down, steepling your hands, keeping your hands and arms within your body frame – that convey confidence and authority. Develop a “hold that thought” hand gesture to stop interrupters before they gain momentum. This initially may be uncomfortable, but as confident-appearing trial lawyers would say, “fake it ‘til you make it.”
  1. Eschew Conditional Statements: Dispense with “Maybe I’m wrong, but…” or “Should we consider this?” Don’t use questions to make statements; make statements.  Minimize questions designed only to signal how consensus-oriented you are.
  1. Find Your Voice: Don’t try to talk like a man. Talk like a strong woman: No uptalk (interrogatory inflection).  Use short sentences. Practice a clear drop in pitch at the end of a thought to signal you’re done thinking/speaking (the Brits call this a “full stop). Give inspiring speeches to yourself in the car (including practicing being angry or offended). Join Toastmasters or take a public speaking course if your voice is soft or your manner demure.

Bonus Tip:

Name the Frame:  Politely but firmly call out manterrupters and bropropriators as soon as they trespass, emphasizing their behavior but not impugning their intentions: “Gary, I’m being cut short here. Please let me complete my thought.” “Mel, I’m glad you like my idea. You’ve paraphrased my previous comments very succinctly.”

BTW, yelling STFU!, no matter how gratifying, is probably not a successful behavior modification tactic.


© 2015, Pam Woldow and Doug Richardson. All rights reserved. No part of this article may be copied or reproduced without prior written approval.

FLASH UPDATE: No Seat at the Table

Posted in Law firm practices

Life Imitates Blog

3d Office chair in spotlightOnly a few days ago we posted a blog post, Are You a Manterrupter?, in which we discussed how unconscious gender biases of men may compromise leadership communication and result in female colleagues being marginalized, shut out, interrupted and generally frustrated in the exercise of senior-level professional responsibility.  A second, related post about how to address the impact of unconscious bias is scheduled to be posted next week.

Wow, talk about timing: today’s headlines threw the spotlight on some extraordinary true-life breaking news. Fox International Channel’s CMO Liz Dolan published a scathing article entitled “Gender Bias Forced Me to Quit Quiksilver’s Board.”  It turns out that Quiksilver, an action sports and apparel company, had completely excluded board member Dolan from the decision-making process that led to firing its CEO. Dolan first learned about the change in management while on an airplane, when she opened an email containing documents for a clandestine board meeting taking place while she was in the air. The quickie board meeting was to ratify what was already a done deal following 10 days of secret conversations among the other – and entirely male – board members.

As former CMO of Nike and the OWN channel and hardly a junior-varsity talent, Dolan was proud to be one of the few women on the board of a publicly-traded company. She had earned her spurs as a heavy-hitter, and she had passed board interview muster as someone with the chops to make tough decisions.  Yet she was totally cut out of the loop of a 10-day discussion about terminating the CEO, who had been a senior executive colleague of Dolan’s when they both earlier worked at Nike. When Dolan left the board on May 28th in what lawyers call a “noisy resignation” (meaning that the company has to release the resignation letter), she said:

“I was given many explanations, but I think it boils down to a single answer: unconscious bias. And what I learned is that even when a woman earns a seat at the table, the men can put you in a soundproof booth.” (emphasis added, and much deserved)

“Because I had a previous professional relationship with the (now former) CEO at Nike, the board assumed they knew how I would have voted based on the biased assumption that I’d vote to keep my ‘friend.’ Because that’s what girls do, right? They make emotional decisions about friends instead of strategic decisions based on business facts. Girls can’t keep a secret. Girls are too emotional. Girls can’t make tough calls. And, thank goodness, girls won’t speak out when we marginalize them.”

This exemplar of male thinking, arrogance and dominance – which seems to us more evidence of conscious bias than unconscious bias — is bound to be embarrassing for Quiksilver. But they’ll survive, right?  They’ll duck their heads, decline comment, and elect a replacement board member.

How much do you bet it won’t be a woman?


© 2015, Pam Woldow and Doug Richardson. All rights reserved. No part of this article may be copied or reproduced without prior written approval.