CBA Record March-April 2020

YLS Special Issue: The Balanced Lawyer

is to write down a past failure, along with some lessons that were learned. For example, if attorneys miss an important filing deadline, they could calendar future assignments in multiple locations, start projects earlier, and inform their colleagues about time-sensitive deadlines as soon as possible. Second, they could talk to their friends about past failures. By learning how others overcome setbacks, attorneys’ fear of failure will decrease. Viewing Failure as a Challenge People who fear failure focus on preventing losses when approaching a project, rather than completing the project successfully. This leads to self-handicapping, in order to blame failure on external factors. Failure should instead be viewed as a challenge. Three ways to view failure as a challenge include using a growth mindset, recogniz- ing good failures, and praising the process rather than abilities. 1. Using a Growth Mindset Individuals who have growth mindsets believe their talents can be developed through hard work and persistence. Carol Dweck, What Having a “Growth Mindset” ActuallyMeans, HARV. BUS. REV. (Jan. 13, 2016), https://hbr. org/2016/01/what-having-a-growth- mindset-actually-means. Meanwhile, people with a fixed mindset think their qualities, such as being smart, are innate. By embracing a growth mindset, people are able to put their efforts into learning and achieving more instead of appearing “smart.” This causes employ- ees to feel more committed to their work when the principle is applied at their companies. Because research into growth mind- sets has become popular, there are some misconceptions that need to be corrected. First, growth mindsets are not innate and are not associated with open-mindedness or flexibility. Every- one has qualities associated with both growth and fixed mindsets, so develop- ing a growth mindset is always a work in progress. Second, people with growth mind- sets do not just praise and reward effort. Outcomes matter, especially in the legal profession. Processes and behaviors that lead to progress, such as learning from mistakes, should be rewarded. By doing this, better outcomes will result, which encourages further development of a

growth mindset. Finally, the phrase “good things come to those who wait” is incompat- ible with growth mindsets. Simply believing in growth is not enough. Changes must be made. Even if certain initiatives fail, companies with growth mindsets reward employees for working with others and learning from their mis- takes. They are also committed to their employees through actions, by creating new opportunities for advancement. 2. Recognizing Good Failures Not all failures are created equal. Learn- ing to overcome the fear of failure requires learning how to categorize failures into different degrees of sever- ity, including: preventable, complex- ity-related, and intelligent. Amy C. Edmondson, Strategies for Learning from Failure, HARV. BUS. REV. (Apr. 2011), strategies-for-learning-from-failure. Preventable failures result from pro- cess deviations and are easy to identify and fix. To reduce preventable failures, attorneys can adopt a process such as the Toyota Production System to make incremental, positive changes to their practice. At Toyota, assembly line members who spot errors pull a rope at their station, which starts the diagnostic process. If the problem can be solved in less than a minute, production contin- ues as normal; otherwise, production stops until the problem is fixed. Complexity-related failures occur when there is an unprecedented or unpredictable combination of needs, people, and problems. Examples include triaging patients in waiting rooms or running a start-up business. It is counterproductive to consider this type of failure bad, because small system failures based on erratic circumstances are inevitable. Jury trials illustrate this type of fail- ure. At trial, attorneys cannot predict how witnesses will behave, or what types of objections the opposing coun- sel will make. Further, the jury may rule against the weight of the evidence and law. When people’s livelihoods are on the line, emotions and opinions rapidly change, which makes jury trials impos- sible to forecast. Finally, intelligent failures are con- sidered good failures, because they provide knowledge that will promote

future growth and development. These types of failures occur when the answers to questions are unknown. Scientific research and product development fall under this type of failure, because experimentation is necessary. 3. Praise the Process, not Abilities It is better to praise the process that led to a good result, rather than particular personality traits. Specifically, process praise sends the message that success is due to efforts and strategies, which can be controlled. Process praise also helps people develop resiliency, because “their value as a person hasn’t been called into question.” Allison Master, Praise that Makes Learners More Resilient, MINDSET SCHOLARS NETWORK (Aug. 2015), http:// tent/uploads/2015/09/Praise-That- Makes-Learners-More-Reslient.pdf. As a result, people who receive process praise are more motivated to develop their abilities. As discussed above, jury trials are unpredictable, and the final result may even go against the facts and law. However, just because the final result was not the desired one, that does not mean the trial was a complete disaster. One member of the trial teammay have given an excellent opening statement, while another flawlessly cross-examined the opposing party’s key witness. By highlighting the positives, attorneys can more easily focus on the areas that need improvement. Conclusion Perfectionism and the fear of failure have entrenched themselves in the practice of law. By finding the benefits in past failures and viewing failure as a challenge, though, attorneys can grow their practice and develop resiliency when facing future fail- ures. This will allow them to achieve new heights professionally and find happiness in their work. KennethMatuszewski is an Associate Counsel at Neal, Gerber & Eisenberg LLP, where he focuses his practice on patent prosecution. He currently serves as a Project Officer, one of the Head Editors for the @theBar blog, and a Co-Chair of the Intellectual Property Committee in the Young Lawyers’ Section.


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