Ten things: getting performance reviews right

This was first published in March 2021.

Sterling Miller

Sterling Miller on 07/04/21

Last year, I wrote about how to get the most out of regular 1:1 meetings; from the viewpoint of the manager and from that of the employee.  Those two posts turned out to be really popular.  

I wasn’t surprised by that because I know (from experience) how often those meetings sucked. Not on purpose, but because neither I nor the other person – regardless of which chair I had at the time – really knew what we were supposed to be doing. Fortunately, I figured it out for the most part and was happy to share what I knew in those two posts. 

So, let’s now turn our attention to another chronically sucky legal department process, the yearly performance review.  I hear you out there, “Wow, well done. This would have been great information… last November when we were scheduling reviews!”  True.  It probably would have been.  But, allow me to retort. I say, and as you will see below, that now (March) is the time to start thinking about and preparing for performance reviews.  Actually, you should have started in January.  You’re already behind.  So, there. But, before you riot, unsubscribe, – let me explain myself.  Performance reviews are a critical tool in the hands of every manager.  They are even more important in the current forced-remoteness of COVID-19.  Getting them right takes a lot of effort and thoughtful consideration and you cannot wait until the last minute to get started.

This edition of “Ten Things” walks you through what you need to do and think about to create truly valuable and useful performance reviews:            

1.   Start preparing early

As noted, the time to start performance reviews is now, not the day before they occur.  There are few things of less value to you or your employee than a half-hearted performance review.  It is a waste of time – yours and theirs.  It will feel rushed and superficial, and unlikely to give the employee anything constructive to take away.  So, start early.  In January.  By that I mean start keeping track of good and not-so-good things to discuss with your employee.  I just created an email folder in Outlook and saved anything I thought would be helpful performance review material in that folder.  When it came time to start putting the formal review document together, I had plenty of material to include.  I also had a copy of the employee’s resume in my materials so I could remember their background and work history (it’s surprising how helpful it is).  As you get closer to the review, and if connected, take a look at their LinkedIn page and things they are posting and excited about.  Logistically, once you know when reviews need to occur, count backward 60 days and calendar to start preparing the formal review document then.  By starting early, you will have time to hone it, add to it, or whatever else is needed so the document you give to the employee is well-written and useful. Your goal is to have the final review written a least two days before the review meeting.

2.  Be clear and direct   

Having been on the receiving side of plenty of poorly prepared reviews, I can say that the thing I found the hardest to deal with was vague feedback (or no feedback at all, i.e., a review where we shot the bull for 20 minutes and then I got up and left).  I honestly believe that everyone understands they are not perfect and we all have things we can do better. I know I do.  Moreover, employees want to hear what they are doing wrong or could do better so they can fix it. Not addressing issues in a clear and direct manner is probably the place where most performance reviews fail.  Managers do not want to be the “bad guy” and, therefore, dance around these tough conversations, thinking that somehow if they hint enough at an issue the employee will get the drift and go off and work on solving that problem.  Never in the history of employee management has this ever occurred.  Do yourself, the department, and the employee a huge favour.  If there is something that needs work or needs to change, just tell them. Be fair (and never confrontational or condescending).  Give examples (at least one or two) of what they did and how they could do it better. Performance reviews are not really about evaluating people, they are about evaluating results. And the process is an excellent opportunity for you to be a coach. This reminds me of something my eighth-grade track coach used to tell (yell at) us, “I want to start doing [this], stop doing [that], and continuing doing [this].”  Keep that in mind when preparing your reviews: Stop. Start. Continue.

3. Behaviours are as important as accomplishments

One thing I learned over time is that evaluating an employee’s behaviours is just as important as reviewing their accomplishments.  Do not forget to do both.  While getting stuff done is very important, so is how they go about getting it done.  The right or wrong behaviours can have a big impact on the legal department overall, even if it is just one person.  Every manager should establish the core behaviours they think make for a successful in-house lawyer.  Everyone in the department or the group should know what those behaviours are and that part of their performance review rests on how well did they exhibit those behaviours.  For example, at one stop as general counsel, here were my core behaviours I expected to see from everyone on the team – from the lawyers to the support staff:

  • Curiosity
  • Collaboration
  • Responsiveness
  • Take responsibility
  • Creativity (find a way to “yes”)
  • Low maintenance

For me, everyone successfully exhibiting these behaviours meant we were well on our way to accomplishing great things – as a team – and doing so in an environment that made the workplace fun, put our clients first, and allowed us to consistently demonstrate value to the company by being trusted partners who got things done, on time, and with a passion for finding a way to “yes.”   In other words, if you do these things, the accomplishments will come.  For you, as a manager, find your core behaviours or success factors or whatever you want to call them, and use them to energize your team and give them a clear path to getting great things done.

4.  No surprises

If it is going to be a tough review for someone, it should not come as a shock or surprise to the employee.  At the beginning of all of my reviews, I told my reports that they had nothing to worry about in terms of surprises because if there was an issue that needed fixing we would have discussed it long before that meeting.  In other words, if someone is not performing the way you need them to you should already be talking with them and working on the problem.  Unless it happened yesterday, a performance review should not be the first time anyone hears of serious performance issues.  That is wildly unfair and highly unproductive.  Put yourself in their shoes and consider how you would feel if the boss surprised you in November or December with issues from back in March or April.  It would not feel good. An easy way to avoid surprises is to schedule informal mid-year reviews.  These are more like check-ins vs. full-scale reviews but they give you a chance to deal with any issues closer to real-time (though the best place to discuss serious problems is the day they occur or at the next 1:1 meeting).  I also preferred to give my report a copy of my review a couple of days ahead of our meeting.  That way they knew my thoughts and could come prepared for a discussion vs. just listening to me talk and then needing time to absorb what I was saying.  Even if the review is not stellar, it is far better to let them know that going into the meeting vs. them hearing it for the first time without any preparation.

5.  Let them evaluate themselves

This one is a little controversial but I think it is always a good idea to ask the employee to rate themselves on the critical behaviours and on their specific accomplishments.  Most will be honest about where they excelled and where they came up short. Odds are good your view and their view will match or come close to matching.  And, if not, you can spend more time discussing and focusing on the gaps.  Oddly, you will likely find that your top performers rate themselves lower than you rate them and the opposite for the lower performers.  I suspect there is some psychological study out there that explains why this occurs.  I just call it the Poor Performer Paradox.[1]

6. Get some help

While most lawyers suffer from “I know how to do this so no need to ask for any help” syndrome, they – myself included – are usually wrong.  One of the most important things I learned about giving performance reviews was to recognize I needed help to do it correctly and to take advantage of whatever resources were available to me.  Let’s face it, reviewing employees, like managing employees, is not easy (and is fraught with peril).  So, why try to be the Lone Ranger?  Start with whatever tools and programs the company’s HR department has to offer.  It is likely that there are materials and online training courses dealing with performance reviews available to all managers.  Consider asking someone in HR to help you understand how best to handle basic reviews and, especially, any that you think might be challenging.  Talk to other managers in the legal department and the company generally about what works for them.  Finally, there is plenty of free advice on the internet – chock full of pearls of wisdom.  From all of these resources, you need to figure out what will work best for you.  What you are comfortable with.  What is closest to your “style” of management.  And, if all else fails, simply be yourself and give the type of performance reviews you would like to have if the roles were reversed. Your instincts are almost always going to be dead on.  Trust yourself.  Lastly, if you have managers reporting to you, take time to ask them if they need any help or if there is anything you can do for them as the process gets underway.  If you have input about one of their reports, go ahead and share it and have a conversation about how that input should be shared with the employee.

7.  Be prepared

In case it wasn’t clear, you do not want to wing a performance review (as a manager or as an employee).  To do it correctly takes a lot of preparation by the manager (and a good amount by the employee but that’s beyond the scope of today’s post[2]).  Be fully prepared before you walk into the room.  If you are not prepared, reschedule the review to a time when you can be prepared (but don’t just go through the motions).  Otherwise, you will be doing a huge disservice to your direct report.  Focus on the following:

  • Thoughtfully complete the evaluation materials.  Leave yourself plenty of time to think about and prepare each individual review.  Go back through the materials you have gathered over the course of the year, ask clients who have worked with the attorney, ask outside lawyers who worked with them, and, depending on the circumstances, get input from others in the legal department.  If the employee took any strength or talent (or other company-administered) tests, get those results as well if appropriate.
  • Schedule the review for a large, quiet room, away from crowds and distractions.  A larger conference room is best as a small room often feels a bit tight and unnecessarily raises the tension level.  Go for comfort – it will help everyone relax.
  • If you have to do the review remotely (and that is still likely the case in 2021), use video conferencing so you can see each other during the discussion.
  • Set aside enough time that you don’t feel rushed but also so you do feel like you have to fill the time with fluff.  Forty-five minutes is ideal (as thirty minutes is a bit tight and an hour is probably too long).  But, do whatever makes the most sense and feels “right.”
  • Come with specific examples of good things and things to work on.  There is a huge difference between telling someone “it feels like you don’t care about deadlines” and telling someone “on these three dates you missed important deadlines with no warning and no excuse.”  The latter is far more impactful and helpful.
  • Know how you want to end the review, i.e., what do you want them to take away from it?  Have specific and clear direction ready.  Tell them what you want/need them to do.  And even if they are the best employee in the world give them something to work on, even if it is “I want you to take a CLE on [X] to enhance your skills in this area.”  Whatever you do, do not go for the ultimate cop-out, “just keep doing what you’re doing.”

8.  Focus on the future

While a performance review certainly contains a backward-looking element, especially when looking at accomplishments, the bigger value is using the review to talk about the future and next steps.  Everyone has room for improvement, everyone wants guidance on what to focus on for the upcoming year (even if setting those specific goals is a month or two off in the future).  Unless you are planning on firing someone (which should be an entirely different meeting), a big part of the review is to get them jazzed about next year and coming up with goals that matter for them and the company.  This is the perfect time to start talking about work goals (specific or general) and give them some direction as to things they should try to come up with for the new year.  Additionally, if there are behaviours you want them to work on, this is the time to start coaching them up.  Even if they are doing all the right things with your core behaviours, there may be other things you want them to work on just to improve how they interact with the business.  For example, one year I gave all of my directs a set of cards (about the size of a playing card) with one word on it.  That one word was something I wanted them to work on over the next year and I asked them to keep the card on their desk or with them in meetings so they would always see it.  For one person, the word was “Simplify” (as they had a habit of going down a rat hole when presenting legal issues to the business).  Another attorney got “Pause” (they had an issue with talking and talking and not giving natural breaks for the business to ask questions).  Regardless of what you do, the important thing is to focus on how best the employee can improve going forward, make sure they understand exactly what you want them to do or focus on (i.e., the action plan), and then do everything you can to help them meet those goals when the time comes.  This last point is critical.  The performance review is not the end of the process, it’s the beginning.  Coming out of it you want to meet regularly with the employee (1:1 or other meetings) to keep the focus on the action plan, the right behaviours, and providing both praise along with constructive criticism when things are not going how you want them to go.  Remember, no surprises.  Each employee should know exactly where they stand with their manager at any point on any day of the year.

9.  (Stop talking) Listen

Perhaps the most underrated of all manager skills is the ability to truly listen.  This means clearing your mind, suppressing the urge to interrupt with questions, and simply letting the other person have the floor.  This is referred to as “active listening.”[3]  I just called it good manners and good management.  As a manager, understand that performance reviews are stressful events for your team, even if they know in advance nothing “bad” is going to happen.  They want (and need) your full attention but they may not know how best to get it.  Make it easy for them.  A performance review should be a conversation, a two-way process, and not just you laying down “Worklife lessons” from on high.  Some of that is useful, but only in the context of a conversation and only after you have truly heard your employee’s concerns and aspirations.  It is better to let the employee start the review by presenting their self-assessment (which certainly can take some of the air out of any defensiveness you think they might have).  Regardless, here are some things to ask them to give them the floor:

  • What are you most proud of this past year?
  • Where do you think you have made the most progress?
  • Where do you think you need to improve?
  • What would you like to accomplish this coming year?
  • What’s in your way to accomplishing what you want to achieve?
  • What can I improve on or do differently that would help you the most?
  • Are you happy here in the legal department?  What can I do to make it better?

10.  If things aren’t great

Most of the time, performance reviews are pretty easy to get through, all things considered, i.e., you have a really good employee and lots of positive things to discuss and maybe only a few things you want to see them work on.  But they are not all like that. Sometimes, you have to have a hard conversation.  Typically, hard conversations are about lack of performance or major problems with behaviours that are counterproductive to the type of legal department or group you want to have in place.  If so, my best advice is to simply be clear and direct.  Tell them what is working and what is not working and why. Again, it is important to have actual examples of the problems.  If you get stuck, remember the three keys: Stop. Start. Continue.  While the conversation may be a tough one, there is no need to be harsh.  The point is to help get the employee to up their game not annoy or belittle them.  It may be as simple as just asking them why they are having problems with whatever.  Is there something blocking their way or something you are doing?  Sometimes a question as simple as that can clear up a problem and unlock all the potential you think is there.  Additionally, the conversation may be hard because the employee wants to talk about something that is not on the agenda like a promotion or a salary increase.  If these come up and are typically not part of how your company’s performance reviews proceed, it is okay to defer that conversation.  Just say, you will be happy to have that conversation, just not today.[4]  Ask them to set some time up with you at a later date.  Lastly, no matter how difficult the conversation, try to end everything on a positive note.  End with something they are doing well, some big accomplishment, or some plans you have for them next year, i.e., we want you here and we know you can overcome these issues. The future is now the focus, not what happened last year.

11.  Covid

Okay, I know you didn’t think I would go all the way through this without a paragraph dealing with Covid and the fact that most people have worked remotely this past year which makes performance reviews even harder.  Here is a bonus “thing” and my quick tips for 2021 and dealing with the pandemic fallout:

  • Be flexible – all of the above is tried and proven but you will need to adapt it to the circumstances brought on by Covid.  It may be you give everyone a “good job” and let’s move on and focus on the future only – leaving the last year in the dustbin.
  • Be kinder – it has been a rough year or so for everyone.  Consider just being nicer (or nicer than usual) during reviews.  Empathy goes a long way!
  • Laud new skills and behaviours – you may have had an awesome list of skills and behaviours you wanted everyone to work on but Covid changed the plan.  Accept this.  It may be that people are exhibiting new skills and new behaviours that are making things “work” in the Covid-era.  And, they may have taken on new responsibilities that are nowhere on their job description but necessary to “keep the lights on.” Recognise all of this instead!
  • Ditch revenue metrics – if you had metrics or goals based on revenue generated, you may have to ditch those depending on the industry.  For some, the goals have become impossible as some businesses are barely holding on. For others, they became too easy because businesses exploded during the pandemic.
  • Focus more on real-time discussions – since you are not together (or not together as much), real-time discussions about issues are critical.  If something bad – or good – comes up, address it in the moment and don’t wait for down the road.  Likewise, consider daily (or three days a week) “huddles” – quick check-ins with everyone to keep things moving and not let problems or issues build-up or slip through the cracks.  Huddles are a great way to keep the team connected.


Well, there you have it.  My basics for preparing for and giving top-notch performance reviews.  If you want to go deeper, check out Your Ultimate Guide to Employee Performance Reviews.[5]  Like many things I write about, this is not sorcery or differential equations, it is a lot of common sense, experience, and, ultimately, preparation.  Good performance reviews naturally feed into succession management, which includes development planning.  If you skimp on performance reviews you are not going to be able to properly plan for succession or development.  In short, done right, you have a motivated and energized employee.  Done wrong and you may have an unmotivated and disgruntled problem on your hands.  You want motivated and gruntled![6]  So, while it may be March, if you’re not already doing things to get ready for the year-end performance reviews of your team now is time to fix that.

Sterling Miller

March 30, 2021

Two of my books, Ten Things You Need to Know as In-House Counsel – Practical Advice and Successful Strategies and Ten (More) Things You Need to Know as In-House Counsel – Practical Advice and Successful Strategies Volume 2, are on sale at the ABA website (including as e-books).  As the ABA says, “Mother’s Day and Father’s Day are almost here – get them a set of these books!” Trust the ABA – buy the books!

Connect with me on Twitter @10ThingsLegaland onLinkedInwhere I post articles and stories of interest to in-house counsel frequently.  

“Ten Things” is not legal advice nor legal opinion and represents my views only.  It is intended to provide practical tips and references to the busy in-house practitioner and other readers.  If you have questions or comments, ideas for a post, please contact me at sterling.miller@sbcglobal.net.

[1] You’re welcome to use this phrase, just put my name in your footnotes!

[2] For the employee side, see How to Prepare for a Performance Review.

[3] See, e.g., Active Listening: The Art of Empathetic Conversation.

[4] If you do have the salary discussion on the agenda or otherwise decide to delve into it regardless, just know that money will be the only thing on their mind during the review and everything else will fly out the window.  It really makes sense to keep those discussions separate if possible.

[5] See also, Performance Review Resources on HRMonring.com

[6] Yes, “gruntled” is a word.  It means happy, pleased, or satisfied.  Now you know!

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