The Penn Rule

Your time is limited, and your client’s paying by the hour. Don’t waste your time doing something that someone else can do.

Famous magician and fellow Norman Borlaug enthusiast Penn Jillette—the guy in Penn & Teller who talks—once said that he tries to do nothing that someone else could do. It seems to work for him: He has appeared in more than 20 films and nearly 50 television shows; has had 13 seasons of his own multiple popular TV shows; has written eight books; has been, for the past 16 years, either performing live magic six times a week in Vegas or on tour; and has a number of other side projects and charitable work.

Lawyers, who on the whole are terrible managers (my colleagues and I excluded, of course), can learn from Penn. Delegate what you can. When you’re doing something, stop and ask yourself if someone else could do it instead.

Why Lawyers Are Terrible Managers

Lawyers tend to be bad managers for a few reasons. First, law is difficult to scale. The most valuable assets of a law firm by far—the lawyers and the client relationships—can leave at the drop of a hat. So firms have never come close to the scale of the global accountancy firms. Even at the scale that does get achieved, any serious defection or sign of trouble starts a death spiral. In recent years, Brobeck, Heller Ehrman, Howrey, and Dewey all fell quickly.

Second, lawyers aren’t incentivized to manage. Traditionally, lawyer status is given for nothing but bringing in clients or grinding out hours. I’m as guilty as anyone: my personal best is in excess of 3,300 in a year, and I’ve hit 3,000 enough years in a row that my old officemate started calling me Mr. 3,000 (I still have not seen the film; he did give me a poster that still hangs in my office). But time spent managing isn’t high status.

The macho appeal of staying in the office until 5:00 a.m. and sleeping under your desk until your secretary accidentally wakes you up is legitimately great. It feels so much better on every possible level than splitting up the project into manageable parts for subordinates to handle and getting out before midnight. I’ve spent multiple all-nighters making binders after sending the paralegals home hours before, convinced I could put together a binder in ten minutes. But it’s a bad allocation of resources for all sorts of reasons. And I’ll say now to those paralegals: I was wrong, and I apologize for undervaluing your skills.

Exacerbating the issue is that many lawyers start their careers at large firms where associates tend to stay an average of three years. This feeds into a number of issues with attorney recruitment, which is easily broad enough for another article, but partners are (very justifiably) not incentivized to develop employees who will likely leave shortly. Little in the system encourages good management. So no one’s to blame, but it creates a negative feedback loop.

You’re Not As Effective As You Think You Are

Recent popular science has been driving home, again and again, that you can’t force yourself to productively focus for long periods of time by sheer willpower. Even multitasking doesn’t work as well as we think it does. Your attention, focus, and ability to make good decisions  are a finite resource. Nothing will change that. Caffeine, Adderall, Pervitin, or whatever the kids are using these days won’t give you more than a temporary boost. The closest thing to a free lunch, as dull as it sounds, is using your limited focus more efficiently.

Despite all this, our brains are very good at convincing us, especially in a haze of fatigue and caffeine, that we’re being more productive than we are. You may think that you can focus as productively after 20 hours as you can after two. Or you may think that your efficacy loss is outweighed by the fact that you are uniquely better and more efficient than anyone else. In either case, you’re probably wrong.

Of course, very often in litigation, situations arise where you do need to grind it out, inefficiency be damned. Maybe there’s a deadline, or maybe you need to go through a backlog of delegated work product by morning or you make the rest of your team sit idle waiting for you. That’s fine, but in those situations it’s even more crucial to be aware of your limitations. If it’s 2:00 a.m., you’re losing steam, and you need to get through a few more things, that is the worst possible time to start doing nonessential tasks.

Delegate, You Idiot: Make The Investment And Commit

But aside from all the institutional and psychological reasons why lawyers don’t delegate properly, you really should. The fact that the majority of people in your profession are indifferent managers doesn’t mean that you have to check out. In fact, this is your chance to get it right.

No matter how good you are, comparative advantage is real. David Boies probably isn’t spending his time writing memos distinguishing every case in every brief he works on, even though I’m sure he’d be great at it. His abilities are better spent on higher-level tasks.

Penn Jillette understands comparative advantage. It means that even if you’re the best at everything, someone else has a lower opportunity cost. Sure, David Boies’s associate may not do as good a job as him, but there’s an upper limit to how much value a really great case-distinguishing memo adds over simply a very good one. And his clients, no matter how much faith they have in him, may pause when seeing from invoices that they’re paying $2,000 an hour for that work. Boies can add much more value by leveraging his abilities as widely as he can. Likewise, you may be really good at writing briefs, but it takes a lot of time to do one from scratch. If, in the time it takes you to write one brief, you can edit three briefs to be nearly as good as one you wrote, you’re coming out way ahead, and everyone’s better off. The briefs may even be better, since you’re incorporating other people’s ideas.

So, next time you’re doing something, stop and ask yourself if it would be better for someone else to do it instead. Yes, it requires an initial time investment to delegate. Yes, there’s more upfront work for you while you decide how to break things out, explain the task, and all the follow-up. Yes, you have to plan ahead. All your objections aside, you need to do it. And the sooner you start, the better.

Even beyond the basic reasons, modern legal practice is such that multiple things blow up simultaneously all the time, and you can’t properly address them on your own. So you can either address them in a timely and appropriate manner through delegation, or you can become mired in minutia and overwhelmed as you gradually become unable to deal with matters. The latter tends to end badly.

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Matthew W. Schmidt has represented and counseled clients at all stages of litigation and in numerous matters including insider trading, fiduciary duty, antitrust law, and civil RICO. He is of counsel at the trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at [email protected].