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When A LeaderNeeds To Confront Underperformance

By Patrick J. McKenna-


One of the more difficult decisions that any firm leader or practice leader will be faced with, is when you have to confront and possibly remove someone on your team who is no longer “pulling their weight.”


When you are faced with this challenge (and you definitely will be at some time in your leadership tenure) you need to understand that the consequences of taking decisive action are rarely as dire as they might seem to you at first glance. Nevertheless, there are numerous reasons why intelligent and capable leaders will go to great lengths to avoid taking any action. In reality, not taking action is the same as announcing that you will continue accepting unacceptable performance.


Therefore, you need to recognize each of these actions, or lack thereof, as significant traps:


• Propensity to give the situation a bit more time.


Situations in which sufficient data demonstrates that a particular professional is no longer doing the job is not always easy to accept. Some leaders are inclined to hold back, waiting for even more information that a colleague is not performing in the role. Yet other leaders have a high need to be loved, admired and respected by everyone within their group. This is an important part of their personal makeup and what attracted them to take on the position of being a leader in the first place. This need makes it particularly hard for them to deal with conflict of any kind and the thought of having to confront a colleague and peer is an especially painful situation.


I worked with the managing partner of one firm who had put off dealing with a underperforming senior partner for over a year, continually rationalizing (mostly to himself) how this guy was slowly coming around. You have to ask yourself: What are you seeing that makes you think that things are really going to get better without some intervention? What are the specific signs that this individual is making progress?


• Fear of how the professional involved will be impacted.


If you are like some leaders you will find it natural to be concerned about how the impact of being told that you are underperforming is going to be accepted. You are well aware that you are dealing with a professional where this may be seen as the first major failure they have experienced in their career. The shock of that failure, combined with any possible peer embarrassment, may be a crushing blow. There is an internal tension and huge reluctance to confront these people.


Yet at some point you do have to ask yourself how long you, and the team afflicted, can reasonably be expected to continue to tolerate underperformance or disruptive behavior. And in many cases, we are talking about situations where decisions taken or avoided can have measurable economic consequences.


Concern for how confronting the underperformer will be viewed by others.


There is also a profound fear that having to confront the underperformance is not only likely to provoke embarrassment on the part of the professional involved, but it will also potentially stimulating other partners to be concerned about their own personal worth.


You need to realize that even if the situation ultimately results in the departure of a firm partner, or even a couple of departures within a relatively short period of time, it is not going to destabilize the entire partnership. As you put in place a carefully developed remedial plan for addressing the underperformance, your fellow partners soon realize that are transmitting a powerful signal about how the firm is enforcing standards and about the level of performance that is required of all lawyers.


• Your sense of personal failure.


It is not unusual for an experienced leader to entertain some feeling of having personally failed at preventing the underperformance. It may be very natural for you to harbor remorse at not knowing how to turn this individual around or fix the situation. You believe that if you had only given this lawyer more guidance, clearer direction, or spent more time in providing personal coaching that none of this would have happened.


Your self-imposed guilt ignores a couple of considerations. In most every case I’ve observed this partner knows full well that they are not performing in accordance with the standards or with the level that they had performed in the past. The truth is that you can only do so much. For you to personally think that you can help make every professional a ‘Star’, is simply not realistic.


• You cannot delegate the responsibility to take action.


One of the benefits of being a leader is that you can delegate some of the more mundane or distasteful tasks to others. But, unfortunately this is not one of them. The unavoidable fact is that some responsibilities cannot be delegated, and dealing with performance issues is one of the key tasks of any effective leader.


That all said, before one takes corrective action it is essential to identify where the problem lies and whether there is any rational way to fix things. Very often we just rush into assumptions about why people are underperforming.


Assuming that your strong preference is to provide the underperformer with coaching and remediation to help them succeed, then diagnosis is the starting point. The diagnosis may point to areas where your coaching might be highly productive – having this individual develop a meaningful plan to get back on track, and then thinking through together how that plan might best be implemented.



CONSIDER WHY HE OR SHE IS UNDERPERFORMING

A common mistake in dealing with underperformance is rushing to talk to the underperformer without pausing to consider why he or she is underperforming. At a recent workshop session with a group of practice leaders, department heads and managing partners, they were asked to list the common reasons why their colleagues may underperform.


Here was their list:

1 Trouble at home or other personal problems (divorce, alcoholism, depression, etc.)

2 “Burnout” — no longer finding the work interesting or challenging

3 Fear of failure in trying something new and reaching for career progress

4 Quality-of-life choices — lack of desire to contribute more energy or time to the practice

5 Externally driven reasons such as the loss of a recent client or downturn in their chosen sector

6 Failure to keep up in their field; being less in demand

7 Struggling because of poor time management or other inefficiencies

8 Lack of knowledge about what they should be doing to succeed

9 Being poorly managed

10 Insecurity due to things like firm merger discussions, and withdrawing into their shell, pending resolution of unresolved firm issues


As you review this list, you can add any other possible causes that you think are missing, and then ask yourself: “which of these reasons are the most common in your real world?”


This particular collection of leaders selected: burnout, loss of enthusiasm, quality-of-life choices, personal / family issues, and externally driven market changes – as the major reasons for underperformance in their groups.


One of the participants added:

It all ties together. The work is so demanding, and it is so hard on you, that the result is that you ultimately say, “I just don’t like to do this anymore.” That can also spill over into personal and family issues, and it can also make you say you really want a different quality of life.


The reason people are not performing is rarely because they don’t know what to do. Nor is it that they don’t want to do it. The incentives to do it are probably there. If they aren’t doing what they should, it is probably due to something deeply personal in their lives. The only way to find out what it is, and to deal with it, is to talk about it.


You are now faced with two critical questions. Does you diagnosis indicate that this professional’s performance shortcoming lie in a coachable area? Second, what results can be expected from you (or someone) coaching this individual and over what period of time – is the result worth the expenditure of professional time and effort to get there?


Those are very tough questions. Over the years I have counseled a number of firm and practice leaders on how they might deal with the challenge of either coaching or removing some underproductive professional. I don’t ever want to underestimate the complexity or the intense emotional investment involved in making a decision to take action.



BE CAREFUL HOW YOU APPROACH THE DISCUSSION

Meanwhile, I have witnessed this same scenario play itself out, time after time, and we never seem to learn.

Imagine this: The practice leader has their attention drawn to the fact that one of our beloved partners is underperforming. This leader knew that the particular partner was underperforming. It didn’t come as a shock. But they were content to let the situation drift without resolution, rather than have to confront the ugly reality of the circumstances. But today we have the situation, the statistics, the facts thrust before us and now something must be done.


Our devoted leader, unaccustomed to having to deal with an interpersonal situation of this nature, makes a case for simply leaving the underperforming partner alone and instead sending this individual a message via the annual compensation review. The rationale is that by cutting this person’s compensation they will quickly come to the realization that they had “better pick-up-their-game and get with the program.”

Given that we are dealing with rational people the leader’s argument reaches sympathetic ears and after some months, the compensation adjustment is finally executed. No effort is ever made to fully explain the compensation adjustment or to inquire as to why this partner’s performance has declined. Has work dried up in their area of practice? Are they experiencing some personal problems, perhaps afflicted with burnout? Are problems at home creating a distraction? All potentially temporary in nature and capable of being remedied. But no one bothers to ask, “what’s going on here?”


  • LESSON #1 – in an earlier era of lock-step compensation, if a partner was underperforming, it was quickly detected and resulted in someone discretely visiting with the individual to offer assistance to get him or her back on track. Today, when that happens, management simply abdicates their job under the guise of adjusting the individual’s compensation and sending them a message.

Now our underperformer has had their annual compensation adjusted downward. But after some months, there is still no change in performance. Did this underperforming partner really know that their performance had declined and was below expectations? Absolutely! I have never seen an instance where the individual was ignorant to the realities of their situation. Did this underperforming partner know what they should do to get their performance back on track? Who knows. Not likely. And, certainly, nobody has bothered to ask thus far.

Well, this situation continues to fester for some protracted period of time, sometimes for years (unfortunately) until someone in a leadership position finally (hopefully), decides that maybe they should talk to this partner. So a one-on-one meeting is scheduled.


Now because this situation has been allowed to drag on for a prolonged period of time, it can be far more difficult for our underperforming partner to take the kind of remedial action that might have delivered results, had the discussion happened when the underperformance was first detected.


  • LESSON #2 – difficult personnel or performance issues never get better with age. Nevertheless, our persistent leader sits down with the underperformer and points out the issue and asks the partner “what’s going on here?” The partner now recognizing that they are facing a time of reckoning. And at some point will inquire of the leader (guaranteed!) the most natural question, “what do you think I should do to get my performance back on track?”

Our naive leader, in an attempt to be of help and offer some genuine guidance, now outlines a number of alternatives that this underperformer might want to think about doing. The partner picks one of the alternatives, the leader is delighted to see that action is being taken, and everyone goes back to their office to let the situation percolate . . . for another six months; or year.


A year goes by, the performance has not improved and another sit-down is scheduled. Our frustrated leader asks the underperforming partner what happened. The partner responds, “I did exactly what you suggested, but it didn’t seem to work for me.” (Interpretation: It was your idea Mr. Practice Leader and now it is your problem, not mine. I tried what you wanted me to do . . . but it didn’t work.)


  • LESSON #3 – who really owns this problem, or – who’s got the monkey? It reminds me of an article written in the Harvard Business Review many years ago wherein the author asked his readers to imagine, that every time one of their people has a problem, issue or challenge to deal with, to imagine that problem as a monkey sitting on their shoulder. His message was that the next words out of your mouth will quickly determine who owns that monkey! In other words while you may, as a practice leader, want to be of help to your partner and indeed that is your highest value activity, by taking ownership of your partner’s problem you have actually hindered their development.


WHAT TO DO

STEP ONE: Practice how you are going to handle this discussion.

At some point you need to try doing a dry run on how you will actually explain to your colleague why it is necessary for them to step up their performance. It often helps to sit down and write out the specific reasons you would give. The resulting insight can be powerful. “When I looked at this list, “one leader confided to me, “I could not believe I had closed my eyes to this situation for this period of time.”


Take some time and have a trusted colleague work with you in allowing you to practice (role play) how your discussion with this individual might unfold. Very often practicing how you are going to handle the interaction helps you think through all of the optional ways in which this individual may react to your message and how you then need to respond. Whenever I have done this with a firm leader, invariably there is a sense of surprise at how “right” the discussion feels. In other words, this is a discussion that needs to happen.


STEP TWO: Confront the underperformance problem.

Have a one-on-one discussion with the individual to identify the underperformance. Ask first. Start responding later. Do not let the situation fester. Your leadership task is to figure out for each professional, as an individual, which reasons for underperformance exist. You must accomplish that before you can both work together to formulate any appropriate corrective action plan. For example, there is no point in talking about the meaningfulness of your group’s work if the problem is family trouble.


You’ve got to have a discussion and try to find out what’s going on. Say something like: I don’t want to get things wrong here, but I get the sense that you’re not fully engaged with your work like you used to be. You don’t seem to be showing the normal levels of enthusiasm you have shown in the past. Something is going on. I would love to help you if I can.


It is important to remember that the goal is to convey a genuine concern: “How can I help you?” while leaving the responsibility for improvement with the individuals themselves.

Is there anything I can do?


Deal with this situation now. It will be far harder to deal with a few months down the road and far more difficult to resolve in a satisfactory manner.


STEP THREE: Listen persuasively and express confidence.

Listening persuasively is the ability to ask questions to help your colleague come to his or her own conclusions. Ask lots of questions, seek to understand what’s going on, and help your partner think through their various options. The key question you need to pose is: “So what do you think YOU need to do to resolve this issue?”

Reassure your colleague of your confidence in them. This is important to the individual's dignity and self-esteem. We all want to feel like we have someone on the sidelines pulling for us.


Jennifer, I know there are times when work dries up a little for all of us. You're a competent professional, so I know you can turn this around.


The proper role of an effective leader, when dealing with thorny performance issues, is to serve as coach, catalyst, and cheerleader. The coach cannot win if the team loses. You have a vested interest in the individual performance of each and every member of your group.


STEP FOUR: Invite your colleague to identify a sequential plan of action

Do not volunteer your ideas of what you think your partner needs to do. Rather inquire of this professional, what specifically they are going to do, and by what dates, to turn around their situation.

“I need you to understand that this performance is not acceptable to the partnership. You need to take responsibility for coming up with a remedial plan of action to get your performance back on track. I’ll here to help you in any way I can, but this needs to be your plan. You need to own this situation.”


And if they don’t know what they should do?

“In that case, I think you might want to give this situation some considered thought, perhaps confer with some trusted colleagues. I’ll let you take some time to do that and let’s get back together at this same time next week. And when we get back together, I want your detailed outline of what specific action you are planning to take, together with some review dates whereby we can meet to see how things are progressing.”


Invite them to think about whom within the firm (or outside of the firm) they might want to confer with to get some ideas. But leave the ownership for developing a remedial course of action with the professional affected.

As mentioned earlier, in most instances you may have a number of constructive ideas that you believe, if acted upon, would help resolve the situation. However, you need to allow your colleague to come up with their remedial ideas first. It is important to remember that the underperformance issue and whatever action must be taken are the responsibility of that individual. If you shape their remedial action plan for them, you allow them the convenient excuse that this wasn't really their plan, it was yours.


STEP FIVE: Offer your assistance by scheduling frequent follow-up meetings.

Help your colleague by determining with them what they are expecting to do and accomplish, by what dates. It might be useful at this stage to take notes, put your mutual understanding in writing and ensure that your colleague gets a copy following the meeting. Set frequent follow-up sessions, at least every second month, to check in on their progress.


STEP SIX: Encourage them to maintain their focus and help celebrate small successes.

Acknowledge any achievement, no matter how small, during your follow-up meetings, as soon as possible following any achievements. Your role is to "praise achievements back to acceptable levels of performance."



DEALING WITH THE UNCOACHABLE

There are times when your diagnosis may reveal a more pervasive problem – for example, this particular individual is just not prepared to invest any of their non-billable time in building their skills to make themselves more valuable to clients; or to proactively engage in some serious business development efforts. Sometimes your choice is clear – the individual’s fundamental performance may simply be uncoachable and therefore more extreme action may be warranted.


Raise your hand if you have ever encountered someone who seemed to be a lost cause.


How do you detect a lost cause? Posing that question to a group of leaders recently, together we developed the following list.


A lost cause is some professional who . . .

- blames others or uncontrollable circumstances for their unacceptable performance or behavior

- rarely executes on those promises made to the group

- is usually defensive and never accepts personal responsibility

- is constantly disruptive, uncommunicative or disrespects colleagues

- is combative and creates conflict and tension within the team

- may ask for others’ opinions but regularly rejects those views when given

- acts as though he or she were a victim


Here are but a couple of indicators that may signal when you are dealing with one of these people.


• They think everyone else is the problem. Some time back I worked with a particular leader who, after a two high-profile departures, was concerned about morale. He led a successful firm, but feedback said that he played favorites. When I reported this feedback, he completely surprised me. He said he agreed with the charge and thought he was right to do so. He didn’t think he had a problem. This successful professional has no interest in changing. If he doesn't care to change, you are wasting your time!


• Then there is the underperformer that is pursuing the wrong strategy for her practice. If this individual is insistent upon and already going in the wrong direction, all you're going to do with your coaching is help him get there faster. It's hard to help people who don't think they have a problem.


• Good luck with the perpetual pessimist. You can't change the behavior of unhappy people so that they become happy. You can only fix behavior that's making people around them unhappy.


Many characteristics define someone unwilling to become a better version of themselves. They may be individuals who are looking for a list of answers – seeking the secret sauce to a recipe for success. They may only want to share their views and don’t feel the need to listen to anyone’s experiences or ideas. They may get defensive when you offer a suggestion or an opinion. Some of the most intelligent professionals are unwilling to be coached. Unfortunately, it is difficult to get inside someone’s head so when dealing with someone you sense is uncoachable, depending on the severity of the situation, here are a few final options to consider:


1. Attempt to discern the cause. 
 Making a positive change can be difficult, and there may be understandable reasons why your colleague might resist trying new things or accepting your coaching. You are often dealing with very talented and successful professionals, which further feeds their rationale that they don’t need to change because what they’ve been doing has been working. Talk to the individual about what dynamics might be leading to their ongoing resistance. Those factors could include a deep-seeded fear of failure, a pessimistic outlook that nothing could ever change, or even a fear of success.


2. Play a strong managerial role. Rather than continuing to try to coach this individual, tell the person what you, as the practice leader, expect of them. Some professionals need external pressure and expectations to succeed.


3. Talk about gains and consequences. 
 Be frank. Sometimes, the most we can hope for is clarity. Clarity of what the consequences are if the performance or behavior is not improved. “What happens if you don’t achieve the performance standards that the firm is wanting you to achieve?” All the while we are trying to create some intrinsic motivation.


What I’ve learned: know when to stop.


It is exceedingly difficult to coach attitude, work ethic, honesty or intelligence. Perhaps this individual was an incorrect hire to begin with; perhaps they were promoted to partnership well before they demonstrated the appropriate skill-set; perhaps they simply do not want to do the heavy lifting that is required. These are situations you are not likely to ever win.


So, if all else fails, you may have to ask your colleague to leave the firm. In that event . .



CAREFULLY MANAGE THE COMMUNICATIONS

After any initial shock, give your colleague sufficient time to clear their heads and ask them to think about how they want to work with you to carefully manage the communications surrounding their leaving the firm or changing their partnership status.


This situation should not cause undue embarrassment, harm to some professional’s reputation or be perceived to limit their future opportunities. Keep in mind that in the absence of reasonable information we can all gravitate to creating our own stories – sometimes involving dark conspiracies and shadow motives – eventually reaching our own misguided conclusions as to what really happened. You don’t need that kind of scenario to unfold on your watch.


There are always reasons to put off the decision to take decisive action. A number of leaders have admitted to me, that in hindsight they came up with all kinds of rationalizations to postpone a painful decision that they just knew was inevitable. In the end all they succeeded in doing was hurting both their team and crippling the team’s possible progress in a highly competitive marketplace.


No leader would ever tell you that this is the easy part of the job. It isn’t!



This is the subject of a Presentation that I am delivering, together with my old friend Nick Jarrett-Kerr, Author, Professor and Consultant on January 27, 2021 at Law Firm Compensation Strategy: A Virtual Conference hosted by Ark.


About the Author


Patrick is an internationally recognized author, lecturer, strategist and seasoned advisor to the leaders of premier law firms; having had the honor of working with at least one of the largest firms in over a dozen different countries.


He is the author/co-author of 11 books most notably his international business best seller, First Among Equals (co-authored with David Maister), currently in its sixth printing and translated into nine languages. His two newest e-books, The Art of Leadership Succession and Strategy Innovation: Getting to The Future First (Legal Business World Publishing)) were released in 2019.


He proudly serves as a non-executive director (NED) or advisory board member with a variety of professional service firms and incorporated companies. His aim is to instigate innovation, provide independent strategic insight drawn from his years of experience, and support effective governance.


His three decades of experience led to his being the subject of a Harvard Law School Case Study entitled: "Innovations in Legal Consulting" and he is the recipient of an honorary fellowship from Leaders Excellence of Harvard Square.


Read more articles from Patrick McKenna, or read online/download his latest eBooks



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