What Can a Baseball Book Tell Us About Hiring to Win Legal’s Unfair Games?
Michael Lewis

Moneyball: The Art of Winning an Unfair Game
Any attorney who has opposed a well-heeled adversary can identify with the Oakland Athletics, heroes of Berkeley author Michael Lewis’ new book. Against long odds defined by a payroll budget 1/3 that of the Hated Yankees, the A’s have reached the playoffs three straight years, and are characteristically streaking toward another appearance. To succeed in their hyper-competitive industry of century-old traditions and practices, the under-capitalized A’s have had to outthink their more traditional, more free-spending rivals.

Indeed, they have rethought the game itself—discovering what works according to statistical analysis of those 100 years of baseball history, and concluding that most of what ‘everybody knows’ about baseball success is simply, demonstrably wrong. They’ve replaced baseball’s hallowed hunch with high-tech, a strategy that inevitably pays-off over 162 games of faithful application.

Nowhere is that approach more critical than in new-talent recruiting. Instead of scouting, measuring and guessing, General Manager Billy Beane and staff have focused on the results they seek to achieve: control of the strike zone for hitters, and deception for pitchers. Seeking prospects who demonstrate those skills has been hugely important: both because their success rate is dramatically higher than the woeful washout rate among most teams’ can’t-miss prospects, and because less perceptive organizations have tended to undervalue players who excel according to Beane’s criteria. Therein lies much of the A’s unexpected success.

Okay, that’s baseball. What might the Athletics’ experience teach us in the legal community, another venerable industry with hoary traditions--and a horribly high, costly washout rate among its younger players? The answer is that Moneyball is not only about sporting success, but also about the genius of looking at the same things everybody else does, and seeing them differently.

Some law firms can afford a high washout rate as a cost of doing business. Many others, however--the ‘smaller market firms’--must marshal their resources as carefully as do the A’s. Careful planning and thoughtful execution can achieve similar success (the basic protocol for what follows is also drawn from Hiring Winners, a general-purpose recruiting manual, by Richard Pinsker).

Traditionally, firms have applied a narrow set of criteria to their search processes. Common benchmarks include law school, rank/honors, and years of practice in some area of specialization, as in: “I want a third-year securities litigator from a top-tier school, with major firm experience, and law review preferred.” Points are also given or deducted for those candidates who’ve moved too much, or not enough, and there is a strong preference for straight-and-narrow careerists. The law, after all, “is a jealous mistress.” This approach might be deemed the low-risk model. As lawyers we are trained to recognize and minimize risk; our upside opportunity-analysis skills may be somewhat less fully developed.

There’s a better approach. It starts by defining what Results are truly critical to success in the position. As in baseball, this process involves going beyond the easily available statistics to consider the important outcomes the jobholder must achieve. Results are not to be confused with activities; rather, they are achievements that are critical to the success of the candidate. They are also usually measurable. Thus, a marketing quota of client contacts is mere activity, whereas “$350K/year of new client revenue” is a Result. In an in-house context, “bottom-line orientation” is just okay, but “must reduce litigation costs by 20%” is a lot better description of the needed contribution. For any position, there will be 5-10 critical results that can be identified and ranked.

The second step builds from the first. It is to identify specific Skills and Patterns of Accomplishment on which to found an informed prediction that the Results will be achievable by the candidate. For example, if a “real estate transactions associate” opportunity requires solo lease closings representing developers of major malls under the laws of CA, NV, AZ, OR and WA (a very specific result), then one would work from that criterion to seek drafting and negotiating skills, legal knowledge of the variations among those states’ laws and an adequate demonstration of those capabilities (1 such transaction? 5? 10?).

Patterns of Accomplishment are the demonstrations of required skills, denominated in terms of specific experience rather than using time-in-place as a proxy for it. If you require first-chair product liability jury-trials-to-verdict to predict success, denominating that criterion in terms of number of cases, rather than years of practice is a much more sensitive metric. It allows for interviewing emphasis to be placed on confirming that the apparent pattern really reflects the experience sought by the firm.

Finally, the element of Chemistry--important candidate characteristics like personality, habits and approach to achieving results--should be identified. Interpersonal and organizational Chemistry can make-or-break an otherwise well-targeted search. These are process skills and personality traits that signal likely future success, or friction among colleagues.

Begin by examining the organization: is it hierarchical or flat, buttoned-down or casual? What are your most important business drivers—client service, cost, quality, speed, or specialized expertise? How would you characterize the firm environment—a high-energy pressure-cooker, or a more laid-back, balanced setting? Are you a confederation of separate practices, or an institutional union? Are results typically achieved individually, or collaboratively? How are decisions made, and how much authority is delegated? What gets rewarded? These factors will also inform interview querying to test the candidate’s experience and apparent comfort level with such an environment.

Next, consider individuals who are particularly successful within the organization currently, as well as characteristics of any prior incumbents that contributed to successes. What personal attributes most contribute(d) to their performance? Note that there may be a tendency to overrate the importance of certain undeniably admirable traits, e.g. integrity is of unquestioned value in general, but where does it rank in conjunction with other characteristics in terms of achieving successful working relationships within the firm?

Finally, think about what characteristics would be counter-productive. What gets complained-about by partners or bosses, and what may have contributed to the demise of predecessors in the position? Identifying those characteristics will lead to more insightful interviewing and better reference checking. At minimum, that preparation will promote alertness to the presence or absence of critical chemistry factors.

Having completed this exercise, the firm will be in a substantially better position to predict success among candidates. Past really is prologue, and comparing a candidate’s past and personal characteristics on sensitive, relevant measures removes guesswork and hunch.

As in baseball, unlimited available resources are a nice thing for lawyers to have at beck-and-call, but they are no substitute for a thoughtful strategy. Ultimately, a results-oriented approach to recruiting, one that redefines the game and outthinks your rivals, will help your firm succeed in the legal community’s own “unfair games.”