Guest Chapter 7

Name: Brad Bernthal

Current Position: Associate Professor at Colorado Law. Founder of Brain Cramp Camp, a mental training program for tennis players.

Former Post-Law School Positions: Associate Attorney in law firms, including work in a medium-sized law firm in Boulder, Colorado (Berg Hill Greenleaf & Ruscitti LLP), a large law firm's Denver office (firm is now Hogan Lovells), and an iconic San Francisco firm, Brobeck, Phleger & Harrison LLP, that unfortunately met its demise.

Legal Practice Area: Teaching and research specializing in startups, entrepreneurial law, and early stage finance (such as angel and venture capital investments)

Law School and Year: Colorado Law, 2001

Time between undergrad and law school: Four years. Played semi-professional tennis, taught English in Korea, and managed an undefeated softball team while interning for Senator Bob Kerrey (Nebraska) on Capitol Hill.

One or two books I recommend: Peak: Secrets from the New Science of Expertise (2017), by Anders Ericsson and Robert Pool. Another accessible, popular book distillation of deliberate practice research is Geoff Colvin, Talent Is Overrated: What Really Separates World-Class Performers from Everybody Else (2009).

Deliberate Practice and the Arc of a Legal Career

This is a section about expertise. Expertise is a concept that we often laud as desirable. But we seldom think deeply about what expertise actually is or, further, how to become an expert.

Your best bet for success in transactional law is to build a non-fungible, expert mental model, marked by specialized insight and excellent judgment. (Aside: it also would help you to be able to learn to effectively work with the machines, too.) Experts perceive more than nonexperts (yes, they “see” the same things differently), experts retrieve more than nonexperts (often because experts see one pattern while nonexperts see multiple, disconnected points), and experts process information better than nonexperts (they see the right moves, so to speak).

The question is how to become an expert.

Isn't this what law school is for? No. I am a law professor. I take my job seriously. But even in my good years, I do not produce specialized attorneys, let alone experts. Three years of law school may seem long. Yet research underscores that three years is not long enough to produce an expert. Moreover, law remains a profession—in the United States, at least—where graduate education training is generalist in nature. Law school teaches the fundamentals of thinking—and writing!—like a lawyer, and exposes students to a wide range of substantive areas. Every JD, like it or not, studies Constitutional Law, learns something about evidence, spends way too many hours navel gazing about contractual consideration, and dies a little bit inside while acquiescing to Bluebook citation exactitude.

You are expected to acquire a specialization, and ideally expertise, through post-graduation work experience. Large amounts of your development hinges on what you learn, train for, and acquire once you leave law school. Again, the question is how to become an expert.

My suggestion: Take a deliberate practice approach to your 7 to 10 years after law school.

What is deliberate practice?

Deliberate practice, a concept originally developed by cognitive psychology scholar Anders Ericsson, explains what separates experts from non-experts. It is a theory of expertise based on empirical examination across a range of domains: music, chess, sports, and other professional settings. Deliberate practice observes that, across disparate pursuits, experts actually train in very similar ways. And, notably, experts train differently from non-experts.

Training among individuals who become experts is marked by four elements.

· One, the training is well-designed, typically by an expert in the area.

· Two, the training involves practice—in the sense of preparing for a future performance—with exercises that can be frequently repeated. Exercises often focus upon areas of weakness.

· Three, expert feedback is continuously available. Training does not occur in the dark. Outside eyes provide critique and feedback.

· Four, training occurs at an unusual intensity. Activities may be deeply engrossing. But they are also exhausting and demanding. Many high-level performers can manage only 4 to 5 hours of deliberate practice-style training per day. And they often sleep a lot, too.

The good news: deliberate practice makes visible a repeatable methodology about how experts get made. You can follow it. Taking this approach naturally leads to what Carol Dweck calls the growth mindset, too, as you are aware of the importance of improvement. The tough news: the method involves a ton of hard work. Moreover, the default is that your legal workplace is unlikely to train you with principles of deliberate practice in mind.

Deliberate practice, as it relates to acquisition of expertise in business law, presents a problem: the practice of law is not practice at all. In common parlance, such as the classic Allen Iversonian usage of practice, practice is a low stakes environment of skill acquisition and preparation for future performance. In the legal world, practice is actual work. Real clients. Stakes on the line. Billable hours. People get angry and happy. You know—the real deal.

Most of you will take jobs in firms and companies that, understandably, prioritize the client and company work that needs attention at any particular moment in time. This may or may not track your developmental needs. Work comes to you in haphazard and ad hoc ways. As a training method, this is not what deliberate practice would suggest. Some employers might monitor and measure the development of your skill set. Most will not. Rarely will you work in situations that align with what deliberate practice literature would suggest is your most likely path to expertise.

Bottom line: you need to take ownership of your own path to business law expertise.

What are the elements of expertise for deal attorneys?

Deliberate practice provides a methodology—i.e., the how—about how to become an expert.

The cop out to the “what” question is the same answer as you wrote on your torts exam: it depends. And it is true that different legal roles within the transactional legal universe require different capacities. Yet we can say something more about the what of legal training.

Mentors and senior members on your teams can help you identify the crucial elements which define expertise in your legal area. In particular, there are three categories to consider in developing a legal deliberate practice training regime.

· One, identify substantive legal areas that experts in your area know inside-out. Consider which doctrinal areas, and specific subareas, must be mastered. You might have completed coursework in the area. Consider how to go deeper in substantive expertise during your first 7 to 10 years after graduation. Read treatises. Pull law review articles. Write white papers. Co-author pieces with a respected senior attorney for the state bar publication. Find ways to go deep.

· Two, inventory the skills required for expertise in your legal area. Skills refers to methods, tools, and applied techniques used by expert attorneys. Negotiations, transactional drafting, and oral communication are obvious cross-cutting skills for trusted deal attorneys. Other crucial business law skills remain almost invisible to law schools, including process management, understanding innovation methodologies (e.g., design thinking), change management, and leadership. Look for jobs that you would like to be ready for in 7 to 10 years, isolate the skills involved, and practice them.

· Three, identify the crucial pockets of non-legal insight, which I call domain knowledge, for the type of job you'd like to have in the future. Domain knowledge refers to substantive non-law areas that expert deal makers and businesspeople are familiar with.

Design a Deliberate Practice Training Regime

Now craft and execute a deliberate practice legal training regime. You will almost certainly need an expert—or experts—to help you craft this plan. This is where mentors and great supervisors are gold. You need someone to help you identify your current weaknesses, craft exercises and other opportunities to expand your abilities, and provide on-going feedback along the way.

Some aspects of legal work, with a little effort, lend themselves directly to a deliberate practice approach. For example, attorneys in areas with repeatable processes and tasks, such as merger and acquisition practice, get many repetitions on tasks, such as arranging disclosure schedules to working through asset purchase agreements. Layer on continuous and on-going feedback from an expert, and this type of work might lead naturally to M&A legal expertise.

Other aspects of business law expertise may be well outside your day-to-day work and require a much more concerted effort. For example, let's say you recognize that financial literacy—e.g., reading financial statements—is important to become a general counsel, but your day-to-day work today primarily involves licensing deals. You might start with a basic finance course on-line, such as through Coursera. Then you might begin analyzing financial statements, trying to see what story the numbers tell, and then get feedback from an expert about what they actually say.

If you'd like to look further into deliberate practice, a starting point is the book Peak: Secrets from the New Science of Expertise (2017), by Ericsson and Pool. Another accessible, popular book distillation of deliberate practice research is Geoff Colvin, Talent Is Overrated: What Really Separates World-Class Performers from Everybody Else (2009). And if you want to go to the root of the literature, start with Ericsson et. al., The Role of Deliberate Practice in the Acquisition of Expert Performance (1993).

A deliberate practice lens, fundamentally, gets you to think about your legal career on a 7 to 10 year horizon. That long-term view helps you see a larger perspective than the day-to-day. Deliberate practice highlights that expertise is not a “you either have it or you don't” natural skill. Rather, expertise is earned over time. Deliberate practice illuminates a viable path to get there.