Dangerous Leaders

How and Why Lawyers Must Be Taught to Lead

Anthony C. Thompson

• Publisher: Stanford University Press
• Year: 2018
• ISBN:
  9781503606531
• Edition: 1
• Topic: Law
• Subtopic: Legal Education
• Index: Law

Flint, Michigan's water crisis, the New Jersey "Bridgegate" scandal, Enron: all these incidents are examples of various forms of leadership failure. More specifically, each represents marked failures among leaders with legal training. When we look closer at one profession from which we often draw our political, business, and organizational leaders—the legal profession—we find a deep chasm between what law schools teach and what the world expects. Legal education ignores leadership, sending the next generation of legally-minded leaders into a dynamic world dangerously unprepared.

Dangerous Leaders exposes the risks and results of leaving lawyers unprepared to lead. It provides law schools, law students, and the legal profession with the leadership tools and models to build a better foundation of leadership acumen. Anthony C. Thompson draws from his twenty years of experience in global executive education for Fortune 100 companies and his experience as a law professor to chart a path forward for better leadership instruction within the legal academy. Using vivid, real-life case studies, Thompson explores catastrophic political, business, and legal failures that have occurred precisely because of a lapse in leadership from those with legal training. He maintains that these practices are chronic leadership failures that could have been avoided. In examining these patterns of failures, it becomes apparent that legal education has fundamentally misread its task.

Thompson proposes a fundamental rethinking of legal education, based upon intersectional leadership, to prepare lawyers to assume the types of roles that our increasingly fast-paced world requires. Intersectional leadership challenges lawyer leaders to see the world through a different lens and expects a form of inclusion and respect for other perspectives and experiences that will prove critical to maneuvering in a complex environment. Dangerous Leaders imparts invaluable tools and lessons to best equip current and future generations of legal leaders.

CHAPTER ONE

Piloting the Boat by Looking at the Wake

Leadership Challenges for the Legal Profession

LAWYERS ARE LIKELY TO BE LEADERS. Of the forty-five American presidents, twenty-four have been lawyers.¹ In the 114th Congress, members with law degrees held 53 of the Senate’s 100 seats and 160 of the 435 seats in the House of Representatives.² The list of Fortune 500 companies in 2012 boasted forty-six lawyers serving as CEOs.³ If we add to that inventory state legislators, cabinet members on the state and local level, city council members, and mayors, the total number of lawyer-leaders skyrockets. Lawyers also occupy key leadership roles in industries that perhaps are somewhat less expected: technology,⁴ media,⁵ pharmaceutical,⁶ and toys,⁷ to name just a few. They run nonprofit organizations and philanthropic foundations. Lawyer-leaders are tapped to play key roles in virtually every industry and sector. While all law schools pay lip service to their commitment to preparing law students to become the next generation of leaders, the disturbing reality is that law schools more often than not fail even to offer courses on leadership or to surface leadership concepts and dilemmas in the standard curriculum. Given their likely positions, lawyer-leaders will need to develop and exercise the skills and behaviors that will enable them to perform successfully in a leadership role. In addition to understanding the law, they will need to be more self-aware, more comfortable with ambiguity, and more globally fluent than any who have preceded them. The good news is that these skills will not only make them better leaders but will also make them better lawyers.

LEAVING THE DOCK

More must be done even before the lawyer-leader enters practice. When I first proposed specifically teaching leadership skills to law students, my colleagues in the academy were quick to raise objections. Some of the responses were rather predictable: “Won’t the students be too immature to internalize these types of lessons?” “Will they have been exposed to enough practical considerations to make sense of leadership lessons?” “They probably won’t hold leadership roles for a long time, so how will this be helpful early in their careers?” I pointed out that leadership skills were like any other skill set—if practiced, they improve. Taking the conversation further, I mentioned the difference between leadership and authority; many colleagues responded with blank stares. I drew quizzical looks when I insisted that law students could—and should—begin to exercise leadership before leaving law school since, soon after graduation, many law students will begin making significant decisions affecting clients’ lives and businesses. One colleague quipped, “Leadership? I thought that people joined the military to learn leadership.”

For the most part, law professor colleagues were unclear what leadership was, why it made any sense for law students to study it, and why anyone would want to teach such a subject. The questions were part of the overall rigidity of the structure of legal education. American legal education has remained remarkably unchanged since it first took modern form in the 1870s.⁸ It has carried with it a correspondingly stable body of critiques,⁹ centering on the need to prepare law students better for legal practice and the need to introduce perspectives in the study of law that might shape the law but were too often ignored by the law. For example, scholars criticized the legal academy for failing to expose law students to the critical intersection of race, gender, power, and the law as a means of understanding how the law is developed and applied.

The debate over what to teach in law school has been transpiring for at least a century.¹⁰ Critics have centered on the structure and content of the legal curriculum, looking to determine ways to ensure the best use of the three years of law school. These assessments, ranging from historical critiques to the more recent warnings of a crisis in legal education, share a consistent theme and diagnosis: law schools fail to prepare their graduates adequately for legal practice. No one questions that law schools teach their students to tackle and grapple with legal theory. But the worry is that a legal education focuses almost exclusively on the law’s theoretical underpinnings and possibilities and ignores the practical realities that lawyers and their clients face. In essence, law schools fail to impart the precise skills that lawyers will need to meet the demands of both their employers and their clients. For example, most law students graduate without knowing how to read or write a contract, interview a client, or conduct a deposition. Law schools uniformly offer courses in legal writing to provide some basic training in legal research and writing. But to move beyond the basics and to develop practice-ready skills, law students often need to take clinical courses or experiential classes. Only a small percentage of law students elect to take such courses. The net result is that law students do not learn these skills before entering practice. If their first employer does not adequately train them to practice well, these new lawyers may learn at the expense of the client.

As importantly, legal education does not prepare students for the world in which they will practice because the traditional curriculum ignores critical issues of race, culture, and professional values. The core legal curriculum does not acknowledge or address the salience of race in the law. Much of what occurs in the U.S. legal system implicates race, but law schools typically pretend that race does not affect legal analyses or that the decisions that actors in the legal system make somehow occur in a race-neutral vacuum. Law schools rarely examine the intersection of race, law, and power as part of their core training and instead relegate questions of race to the margins. Because they are not trained to examine questions in the law using a lens that focuses on race, class, gender, or difference, law students can easily miss or misunderstand their significance in understanding the law, its application, and its implications. Similarly, law schools do not address the ways that culture can influence our understanding of the law and legal institutions. U.S. law schools typically operate from the assumption that there is a single dominant culture and, in that mistaken approach, fail to help law students develop the tools to see and appreciate cultural signals and differences. Law schools simply squander the opportunity to teach law students ways that they might begin to integrate cultural awareness and competency into their professional experience. Finally, to the extent that legal education addresses professional values at all, it does so in a limited context: ethics classes. But decisions and questions that implicate a lawyer’s values abound, and by insisting that such questions arise only in the context of ethical rules or guidelines fundamentally weakens law students’ ability to recognize that their choices, behaviors, and perspectives reflect and convey values. At the start of students’ careers, law schools should help them begin to think about who they will be as lawyers and how they can begin to develop a purpose-driven trajectory for their careers. However, law schools do not provide this in-depth career planning.

In recent years, questions about the efficacy and value of a legal education have entered the public dialogue. The general public has begun to question the worth of a legal education given its expense. Governing bodies such as the American Bar Association (ABA) and the Association of American Law Schools (AALS) have received a share of the criticism for their lack of oversight and standardization of law schools. The positions the ABA takes in the next few years may be key in determining the general future of law schools, deciding whether they will be more practical or will remain more theoretical and doctrinally focused. But even without the mandate from these bodies, law schools need to reimagine what they are doing to prepare lawyers for their roles in the workforce or they will continue to put clients at risk.

When people ask about the purpose of a legal education, the standard response is that a legal education prepares students to “think like a lawyer.”¹¹ The meaning of this well-worn phrase has long been the subject of considerable debate in the legal community. On one hand, thinking like a lawyer means being exposed to legal doctrine, understanding the methods of analytical thinking, and learning to raise critical questions in the law. The proponents of this perspective emphasize that law school is not in the business of training students for the workforce but is designed to introduce students to larger theoretical questions about the law and how it should operate. Thinking like a lawyer thus means that students are able to pose and examine the sorts of questions that will enhance understanding of the law’s potential, intersections, and limitations. In effect, this casts law school as a doctoral program in the law.

On the other hand, thinking like a lawyer involves exposing students to the practice of law, often through clinical education or experiential learning. The intent is to bridge the gap between theory and practice. Proponents of this position argue that a legal education must teach practical skills to prepare students for the demands of the profession. Students should learn basic skills such as client interviewing, negotiating, legal research, and writing. Skills such as working with statutes, administrative rules, complex factual records, and treaties are also integral to a comprehensive legal education.¹² Students often get the opportunity to practice these skills as part of the law school’s social justice mission. Many schools breathe life into that mission by finding ways to serve the communities located around the law school and offering the services of students to help traditionally underrepresented segments of those communities. The practical skills theory also contends that teaching students how legal institutions actually operate is key to preparing them for practice.¹³ In essence, proponents of the practical emphasis in legal education stress that law school ought to prepare students not just to think like lawyers but to be lawyers.¹⁴

What does the standard debate miss? A legal education has the obligation to do more. It must prepare students to lead. Given that large numbers of lawyers become leaders, law schools must openly acknowledge and embrace their role in helping their students understand the dynamics of leadership. It is not enough for law schools simply to claim that they mold future leaders and policy makers. They must consider the skills such leaders will need and give students opportunities to learn and practice them.

CHARTING THE WAY FORWARD—INTERSECTIONAL LEADERSHIP

In order to prepare lawyers for leadership, both legal education and practical training must break from the habit of looking backward for guidance. Preparing lawyers to be leaders means paying closer attention to the world that exists and unfolds around them and then teaching lawyers the skills and attributes needed to be successful leaders given that context. The dangers and lessons examined in the next chapters flow from my observations of lawyers in practice and the challenges they experience because of a failed understanding of their leadership roles. The principal way that lawyers can escape the backward-glancing methods that typify legal interactions is to use and develop an “intersectional leadership” framework, which expects the leader to sit at the cross-section of formal and informal networks and to leverage that nodal position to see further, perceive events more fully, and anticipate issues better.

Before delving into the dimensions of intersectional leadership, it is essential to examine the theoretical background against which it sits and from which it departs. Over the past forty years, a host of leadership models have emerged in an effort to improve our understanding of effective leadership. Two principal leadership theories have gained popularity and traction over time—transactional leadership¹⁵ and transformational leadership.¹⁶ Interestingly, many consider them to present somewhat opposing views of leadership. Transactional leadership views the leader as having the upper hand in what is essentially an exchange relationship with his or her followers. Transactional leaders make their expectations clear to their followers and then leverage organizational incentives and rewards to guide subordinates’ behavior and to measure their success. By appealing to employees’ self-interest, the leader can motivate compliance with his or her directives, and the follower can then expect some measure of personal gain: promotion, salary increase, or greater recognition. Transformational leadership, on the other hand, focuses on motivating others to higher performance using teams, motivation, and collaboration. Transformational leaders offer their subordinates a greater purpose beyond the day-to-day work by creating and articulating a vision of change that transcends short-term goals and focuses on a higher set of needs or principles. What moves followers to align their behavior to the leader’s vision is the leader’s inspiration and charisma. As importantly, the transformational leader provides followers with individualized focus and attention as a commitment to the followers’ professional development. The transformation model views the leader/follower association as less of an exchange relationship and more of a relationship built on commitment to overriding values and aspirations.

Intersectional leadership certainly finds value in some parts of each of these leadership theories, but it also takes issue with the foundational premise of both. Let’s start with the similarities. As in transactional leadership, intersectional leadership recognizes that the leader and his or her teams have distinct and sometimes mutual interests that the leader can leverage to move issues forward. Similarly, the intersectional leadership model shares the transformational leadership theory’s insistence on the leader’s need to motivate his or her teams by appealing to greater goals than just day-to-day efficiencies. But intersectional leadership diverges from both models because they anchor their understanding of leadership in a hierarchical framework. They assume that a leader sits atop a structure and the “followers” respond to the leader because of their own ambition or because they derive a sense of purpose from the leader’s vision. In these models, the leader is the most powerful player who dispenses rewards and punishments, and who singularly frames the problem and then enthusiastically drives followers to achieve the goal he or she has set. Traditional leadership models envision the leader’s role as emanating from positional authority—at the top of an organization, as the head of a unit, as the focal point of a team. But positional leadership constitutes only one possible avenue of leadership. And exploring leadership as only manifesting at the apex of an organizational structure fundamentally misunderstands the ways that leaders can and must exercise influence at every level.

With that in mind, intersectional leadership does not single out the leader in this way. Intersectional leaders exercise leadership by virtue of the juncture where they sit—they are situated at the intersection of formal and informal networks; they have access to different stakeholders and viewpoints; they wear multiple hats and can step outside a single role to consider and pursue different ideas and approaches. To do this, intersectional leaders must have a broad view of what it means to lead that extends beyond the leader’s individual expertise and experience. They must then erect a broad tent that invites different and even opposing views. Leading at the intersections of people and perspectives demands that leaders treat others as equals from whom they can learn. They collaborate with others as they grapple to articulate a vision for the team, to detect and identify issues and opportunities, and to develop a range of options to achieve their goals and to address obstacles. And finally, intersectional leaders look to build connections that enable them and their teams to identify and move toward a shared greater purpose or common good.

This sounds good on paper, but what does it really look like? At its most basic level, intersectional leadership involves a fundamental reorientation away from an individualized, discrete focus toward a broader, enterprise view of the work that the organization undertakes and the leader affects. Conventional legal education focuses primarily on the development of narrow, technical skills to the detriment of broader skills that will prove necessary to lawyer-leaders in their careers. Wherever they sit, leaders must remain alert to the needs of and outcomes for the entire organization, not just the part over which they have direct control. Leadership, in its most basic form, can be described as falling on two axes. The vertical I axis involves the development of deep, technical, subject-matter expertise. Lawyer-leaders often define themselves and their contributions along this axis. Legal education provides them with the foundations for this expertise, and then practice exposes them to the particularized information that enables them to be experts in a given field or specialty. Technical expertise becomes the basis for promotions and distinguishing oneself as a lawyer. But a horizontal axis that cuts across the I also exists, forming a T.¹⁷ This axis involves broader thinking across the enterprise in which the lawyer operates. As lawyers rise in a field, their leadership roles have to expand. They need to move beyond the individual contributor role and assum...