On a recent episode of his podcast, Cal Newport was asked how “deep work” plays out at a law firm.
Based on his discussions with lawyers at different levels in their careers — from new associates to equity partners — Newport believes law firms are “terrible places to work” when it comes to facilitating unbroken concentration and “cognitive hygiene.” As he sees it, this is particularly unfortunate in a field so purely cognitive in its pursuits.
For most lawyers, the fundamental problem is the demand for constant availability — usually through email — a problem I’ve written about before. The frequency of network switching affects the quality and rate of production.
Photo by Albert Barden. c. 1912, From the Albert Barden Collection, State Archives of North Carolina, Raleigh, NC. Photo: N_53_17_92, NC A&M Dairy Barn. Located on present-day site of the Reynolds Coliseum.
Judge Raymond M. Kethledge (by Abdul El-Tayef/WPPI) Via Above the Law.
How Lawyers Should Work
As an example of how lawyers should work, Newport cites the habits of The Honorable Raymond Kethledge, a federal judge on the United States Court of Appeals for the 6th Circuit and potential nominee to the U.S. Supreme Court. (Newport also features him in Digital Minimalism). Judge Kethledge likes to write his judicial opinions in a barn, which lacks an internet connection and is otherwise a distraction-free environment. Judge Kethledge describes the barn workspace as raising his IQ “a nontrivial number of points.”
Law Firms And Cognitive Hygiene
Unfortunately, private practitioners usually lack anything approaching the autonomy of federal judges and would struggle to excuse themselves to an internet-free barn — metaphorical or otherwise — despite many lawyers continuing to work from home because of the coronavirus.
Newport offers two reasons why law firms are such poor places to work when it comes to cognitive hygiene:
- The incentive structure is “warped.” Lawyers generally bill by the hour. So firms try to fill every waking hour with work (and then “try to reduce the number of non-waking hours.”) There is little incentive to do things efficiently, a business model he views as “unsustainable.”
- The legal professional is conservative. The law is “old fashion” and slow to change.
Let’s start with billable hours. It’s tempting to blame this structure for many of our ills. We all seem to hate it. But does it make lawyers less efficient?
The structure could make an unscrupulous lawyer less efficient if he lacks sufficient work, tempting him to draw out the work over more hours. But lawyers are often overwhelmed with work. They desperately want to get through it quickly. The incentive to be efficient is finishing the crushing amount of work left to do; the disincentive is more sleep deprivation.
There’s also a difference between the hours billed and the amount lawyers get paid. Corporate clients and insurance carriers readily cut hours they view as having been spent inefficiently. The same is true for courts reviewing fee awards.
So what about the second reason, the profession’s fundamental conservatism?
Lawyers indeed have a reputation for adapting slowly. Some individual lawyers find ways to practice essentially the same way they did twenty years ago. Law firms are usually led by other lawyers, individuals who lack formal management education or experience. In contrast to other business leaders, they may be less connected to institutions that emphasize adaptation, innovation, and improvement.
Yet both of Newport’s explanations feel unsatisfactory.
The fundamental reason, I believe, is cultural, and comes down to what I call The Response Time Fallacy: the erroneous argument that clients universally expect quick response times, so lawyers are compelled to do whatever it takes to meet these expectations.
A Culture Of Constant Availability
To the extent some clients expect lawyers to immediately respond to email (and other channels of digital communication), this is part of a broader problem of knowledge work culture. But as I’ve argued before, my experience is that most clients usually don’t expect lawyers to be constantly available.
Assume for the moment: a client has been receiving periodic updates or has ready access to the information they need, and has come to trust the next report will be of similar high-quality and on-schedule. Where is the need for immediate communication?
“Rainmakers” will argue that being constantly available is critical to maintaining their client relationships, and thus bringing in the business. Availability is part of their draw. But if these folks are so good at maintaining relationships, must they rely on such problematic communication habits?
As Newport hints, the big interruption problem is other lawyers, not clients. We must distinguish between client communications and internal communications. We will find that most of our interruptions are self-imposed.
And even if a client demands constant availability, the expectation should not filter down to every lawyer on the team through internal communications. Maybe some lawyers will interface with the client to ensure a high level of responsiveness. But other lawyers on the team can focus on their work.
Newport suggests other cultural problems in his discussion of law firm power dynamics. He sees a “Navy Seal-type mentality:” Partners remember how brutal it was climbing the ladder, so they keep the rungs slippery.
This mentality persists but is fading. Many firms have launched “life-balance” initiatives in recent years, aimed at attracting younger generations of lawyers, working parents, and other talented lawyers put-off by these attitudes.
Photo: U.S. Navy. A commander places a special warfare pin on a member of SEAL Qualification Training Class 336 during a graduation ceremony.
Taboos And Opportunities
Regardless of whether the interruption problem is exacerbated by law firm culture, the fear of not being constantly available is real. Lawyers are scared to talk about this publicly. They are terrified of being viewed as unresponsive or less service-oriented than their competitors. This is a brutal marketplace. To openly entertain a different way of working is to risk your livelihood, or so it feels anyway.
John Margolies Roadside America photograph archive (1972-2008), Barn billboard, for Jesse James Hideout in Missouri, Clyde, Ohio. 1980. Library of Congress
Newport views this as a huge opportunity: If a firm respected peoples' cognitive health — by minimizing distractions and keeping lawyers’ hours reasonable — top candidates would compete for positions there. The firm would produce better work, attract higher-paying clients, and a virtuous and profitable cycle would follow.
Unfortunately, this opportunity remains mostly theoretical: leaders at firms don’t want to discuss this topic, let alone acknowledge a problem and try to solve it. It’s more important to maintain the image of being hard-driving and strong. The idea of being thoughtful and strategic seems weak and dangerous.
So, before we can make these changes, we need to bust the taboo on this subject. We need a frank and open discussion — within firms, between lawyers and their clients, and publicly.