Kicking the Can

Performance problems are difficult.  Dealing with under-performing partners, associates who are not meeting the firm’s standards, or people who are “culturally challenged” is awkward, embarrassing, unprofessional and messy.  It is often easier to look the other way and ignore the problem with the hope that it will somehow go away – the law firm equivalent to what politicians call “kicking the can down the road.”

Unfortunately, the consequences of can kicking are precisely what one would suspect.  A leader’s fear of an ugly confrontation can result in years of turmoil and problems — as the German saying goes “a situation that ends horribly is better than one that is endlessly horrible.”  The issue seems not to be getting leaders to decide what must be done – they typically know that instinctively.  Instead leaders seem to have a tough time “pulling the pin” – getting past the ugliness of the action itself.  Oddly, leaders sometimes find themselves somewhat hoping for a crisis – a burning platform to force their own action.

There is no way to make difficult personnel actions easy.  But, there are some techniques that may help leaders sleep better the day before, and the day after, they take action.

1. Build the case.  It is important for a leader to be personally convinced that the action being contemplated is appropriate and necessary.  This is the simple process of creating a one-page narrative describing the problem, the difficulties or financial implications of the problem, and previous attempts at resolution.  THIS DOES NOT HAVE TO BE PROOF POSITIVE FOR A COURT OF LAW.  It is just a summary of the information at hand on which the action is being justified
2. Plan the action.  If the intended action is termination, layout a detailed list of the severance benefits.  Include face saving features such as the continued ability to have email and telephone messages forwarded to them (after screening).  Error on the side of generosity – it will relieve a lot of guilt and avoid ongoing negotiations.
3. Rehearse the conversation.  Create a list of the things you would say were you the person involved, and prepare responses (remembering that sometimes an appropriate response is to say nothing).  Get together with another partner and practice the conversation with the person you are working with being as truculent as possible.
4. Create leverage.  If the partnership agreement limits your authority in the situation, have some form of leverage to encourage the individual involved to not seek further appeal.  For example, in terminating a partner who can demand a partnership vote, offer the severance package only if they resign their partnership.  If the issue goes to a partnership vote and the partners vote for dismissal, it is doubtful they will offer as generous a severance package.

Finally, remember that you are not the person who created the problem.  If anything, you are the victim because you have to clean up the mess.  Don’t make the process more painful than it need be.