It’s performance review time! Time for your boss to go on the record about how well he or she thinks you are doing your job. 

Corporate performance review programs set objectives and use metrics to measure your progress towards fulfilling the objectives. Setting objectives and measuring results avoids subjectivity.  Performance reviews can nevertheless leave your final rating to your boss’s personal discretion.

There are other problems with performance reviews. Business objectives can be overtaken by events—usually a cancelled project, a reorganization or a change in strategic direction. Setting objectives in advance also doesn’t account for the ad hoc problem solving that makes up a big part of in-house lawyering. 

Performance reviews often include evaluations by fellow employees, so called “360 degree” reviews. While soliciting input from customers is a well-established quality improvement tool, it isn’t always appropriate for in-house lawyers. The job of an in-house lawyer can resemble Orlando Bloom defending the walls of ancient Jerusalem in “Kingdom of Heaven”— boiling oil and all that.

The job of an in- house lawyer is not supposed to be a popularity contest. Properly judging the performance of in-house lawyers should be based on coming up with the right answers—including hard answers—not on giving answers co-workers want to hear.

My idea of a good performance review is for my boss and I to spend about 30 minutes reviewing the past year, agree we will carry on as usual, and then fill in the rest of the scheduled hour by making conversation. Still, I need to be prepared for possible negative feedback. If my boss were to express concerns with how I was doing my job, I imagine I would handle the situation in the following way. To begin, I would just listen. I would ask for an example or examples of what had led my boss to make the criticism, if he or she hadn’t said so already. At the end of the conversation, I would tell my boss I needed time to think the criticism over before responding. I would then genuinely think it over. There may be something to the criticism, and I would need time to get over the initial upset before I could accept it. Under no circumstances would I attempt to challenge the criticism in the midst of the performance review.    

We in-house lawyers have a particularly tough time dealing with performance reviews. Lawyers are taught to believe that life is a meritocracy. Thinking that life is a meritocracy is slightly less naïve than believing only the first 100 callers will get the two-for-one deal on the ginsu knives. As the saying goes, “It’s better to be lucky than good.”

But accomplishment is the mantra by which we lawyers live life: good grades, top of the class, job offer from the right firm. Nor are we in-house lawyers factory workers. We don’t spend our day waiting for the sound of the whistle so we can walk out the office door and leave our jobs behind. Our identities as people and as lawyers are highly assimilated. A negative comment about our job performance cuts to the bone. Our instinct is to react immediately and defend ourselves through argumentation. In a performance review, though, it’s not the smart response.

There is also the matter of money. It may be that, at your company, promotions and bonuses hinge on performance reviews. I am skeptical. I question how tightly any employee’s compensation and good job performance are connected. For example, it’s no secret that at some companies, where bonuses are tied to individual performance, department heads are instructed to only give out one excellent rating, a couple of very good ratings, and the rest either good or mixed results, to ration the amount of bonus money handed out. If the amount of bonus money being given is the real determinant of the performance rating, fine, then that’s the purpose, and you shouldn’t confuse the review with whether you are doing good work. I would never consider an upcoming performance review as the time to ask for a raise. Why, you ask? A couple of reasons: I don’t believe life is a meritocracy (see above); tactically, I don’t necessarily want to tie my asking with job performance; the timing may not be right.

As you might guess, performance reviews began in the early 20th century and were intended to manage semi-skilled workers in a manufacturing environment. Over the years, the question of whether performance reviews do more harm than good has been heavily debated. Without renewing the debate here, I will simply point out that lawyers have never been assembly line workers producing X number of widgets a day.

Some legal process outsourcing work—discovery, intellectual property searches—may be suitable for industrial-based management metrics. But this is not true for in-house legal work. Legal departments can set objectives in the form of service levels for responding to requests, e.g., call back in four hours. But the service level still only measures response time, not the quality of the response.

Performance reviews are, at their worst, a kind of MBA-inspired placebo for the coaching and teamwork that is necessary for any organization to perform well. What do I mean by coaching and teamwork? I will let the legendary American football coach Vince Lombardi describe it for you: 

Coaching: “A leader must identify himself with the group, must back up the group, even at the risk of displeasing superiors. He must believe that the group wants from him a sense of approval. If this feeling prevails, production, discipline, morale, will be high, and in return, you can demand the cooperation to promote the goals of the community.”

Teamwork: “Individual commitment to a group effort—that is what makes a team work, a company work, a society work, a civilization work.”

I am sure there are coaches in other sports in other parts of the world who have said the same thing. 

I’m not saying that lawyers are somehow above being judged. I’m saying that if legal departments are going to evaluate in-house lawyers, there is no point unless the evaluations make the lawyers better lawyers and accurately recognize effective in-house legal work. 

If I were a managing lawyer in a corporate law department, here are the essential criteria I would base my performance reviews on. If there were a way to measure these criteria using metrics, I would do that too, but I doubt that there is:

  1. Does the lawyer make decisions with a good understanding of the situation, the company’s strategic goals and policies, and the law, and does the lawyer do a good job of explaining decisions to internal clients?
  2. Does the lawyer take proactive steps to work leaner and to improve quality?
  3. Does the lawyer keep a smile on his or her face day after day? (Author’s Note:  I’m not so good at this one.)
  4. Does the lawyer’s membership in the law department make the sum of the department greater than its constituent parts?