Employee Performance Conversations: Stop Building a Courtroom Case
Updated: Aug 27
When I was writing What They Didn't Teach You: Difficult Conversations, I noticed a pattern that appeared in almost every organisation I worked with.
Managers rarely struggled because they didn't know there was a problem.
They struggled because, by the time they decided to have the conversation, they had already spent weeks or months collecting evidence.
That's when I realised something.
Many leaders don't prepare for a conversation.
They prepare for a courtroom.
One of the most common mistakes in employee performance conversations isn't what we say. It's how we think before we say it.
Instead of preparing to understand, we begin preparing to prove our case.
We replay previous incidents, remember every missed deadline, mentally catalogue every frustrating interaction and start anticipating every possible defence the other person might offer.
Without realising it, we've moved from coaching to prosecution.
The irony is that the longer we prepare our case, the less likely we are to have the conversation that actually needs to happen.
Why Employee Performance Conversations Become Courtroom Cases
Imagine a barrister preparing for trial.
They gather evidence, interview witnesses, organise facts chronologically and anticipate every argument the other side might make.
Their objective isn't to understand what happened. Their objective is to persuade the jury that they're right.
Now think about the last difficult conversation you delayed.
Did you find yourself replaying previous meetings? Did you start remembering incidents from months earlier that had seemed insignificant at the time? Did you begin mentally rehearsing how you would respond if they disagreed?
Most leaders smile when asked those questions because they've done exactly that.
The problem isn't that they're organised.
The problem is that they're no longer preparing for a conversation.
They're preparing to win.
Why This Happens
Very few managers deliberately set out to build a case against somebody.
It happens because the conversation never takes place when the issue is still small.
Each time the behaviour repeats, another piece of evidence is quietly added to the file. Every missed commitment, awkward meeting or frustrating interaction strengthens our belief that there's a wider problem.
By the time we finally decide enough is enough, we've accumulated months of examples.
That feels reassuring because we believe more evidence makes our argument stronger.
In reality, it often makes the conversation weaker.
Instead of discussing one behaviour, we're now trying to discuss twenty. Instead of helping someone understand today's issue, we're asking them to defend six months of history that they may not even remember.
That's an almost impossible conversation to navigate constructively.
The Other Person Never Saw the Case File
One of the biggest flaws in the courtroom approach is that only one person has been preparing.
You've spent weeks collecting evidence.
The other person has simply been coming to work.
While you've been noticing patterns, they've been moving on from each day without realising anything is wrong. They've had no opportunity to explain, adjust or improve because nobody has told them there's a problem.
Then, seemingly out of nowhere, they're presented with a catalogue of examples stretching back months.
From their perspective, the conversation feels unfair.
From yours, it feels overdue.
Neither person is being unreasonable.
They're simply arriving with completely different information.
Employee Performance Conversations Should Create Understanding
The purpose of a performance conversation isn't to prove someone is wrong.
It's to help them perform better.
That distinction changes everything.
When your objective is understanding rather than victory, you stop worrying about having enough evidence to secure a conviction. Instead, you become curious about what's driving the behaviour.
Perhaps the expectation wasn't clear.
Perhaps priorities changed.
Perhaps they've been struggling with something you didn't know about.
Or perhaps the behaviour genuinely needs to change.
You'll never know unless you ask.
Great leaders don't begin with accusations.
They begin with curiosity.
Small Conversations Prevent Big Courtroom Cases
One lesson has become increasingly clear throughout my career.
The earlier the conversation happens, the less evidence you need.
If somebody interrupts you in two meetings, talk about the two meetings.
If they repeatedly miss deadlines over a fortnight, discuss the last fortnight.
Don't wait until you have twelve examples simply because you think your case will be stronger.
It won't.
It will simply become more emotional.
This links closely to what I call the Milk Bottle Principle. Small issues don't suddenly become big problems. They become big because we leave them sitting there while frustration quietly grows.
The longer we wait, the larger the case file becomes.
Replace Evidence With Curiosity
Before your next difficult conversation, pause for a moment and ask yourself one simple question.
Am I preparing for a conversation, or am I preparing for a courtroom?
If you find yourself mentally collecting evidence, rehearsing counterarguments and trying to prove your point beyond doubt, there's a good chance you've already waited too long.
Instead, replace evidence with curiosity.
Replace assumptions with questions.
Replace prosecution with coaching.
The goal isn't to catch people out.
The goal is to help them improve.
Final Thoughts
The best leaders I've worked with rarely needed thick case files.
Not because problems never happened.
Because they dealt with them while they were still small.
They understood that employee performance conversations aren't about winning arguments or proving someone wrong.
They're opportunities to build understanding, strengthen relationships and help people become more successful.
The next time you're tempted to collect one more example before speaking to somebody, remember this.
Courtrooms exist to determine guilt.
Leadership exists to develop people.
Don't confuse the two.
Continue Your Leadership Journey
Read the Book
The Courtroom Principle is one of the practical leadership ideas explored in What They Didn't Teach You: Difficult Conversations. If you're looking to handle difficult conversations with greater confidence, you'll find practical frameworks, memorable concepts and real-world examples throughout the book.
Related Leadership Articles
FAQs:
How should a manager handle an employee performance conversation?
A manager should address performance concerns early, specifically and constructively. Focus on the behaviour or performance gap, explain the impact, clarify what is expected and give the employee an opportunity to provide their perspective. The objective should be to improve performance, not prove that the employee has done something wrong.
Why do managers delay performance conversations?
Managers often delay performance conversations because they are uncomfortable with conflict, uncertain about how the employee will react or worried that they do not yet have enough evidence. The problem is that waiting can allow a relatively small performance issue to become a much larger one.
What does “stop building a courtroom case” mean in performance management?
The courtroom case describes the tendency for managers to notice a performance problem but delay discussing it while they collect more examples and evidence. By the time they finally raise the issue, they may present weeks or months of incidents as though prosecuting a case. This can make the employee feel attacked and turn what should have been an improvement conversation into a defence of past behaviour.
How much evidence does a manager need before discussing poor performance?
Managers do not necessarily need months of examples before raising a concern. If a specific behaviour or performance issue is meaningful and observable, it can often be discussed early. More formal performance processes may require appropriate documentation, but constructive management conversations should not need to wait until a case has been built.
Why is early feedback important for employee performance?
Early feedback gives employees an opportunity to understand and correct an issue before it becomes an established pattern. It also allows the manager to discuss a specific and recent example rather than introducing a long history of frustrations that the employee may never previously have known existed.
Why is saving up examples of poor performance a problem?
When managers save examples without discussing them, employees lose the opportunity to respond or improve at the time. Presenting numerous historical examples later can also feel unfair because the manager knew there was a problem but chose not to communicate it.
How do you start a conversation about poor performance?
Start with the specific issue rather than a lengthy introduction. Explain what you have observed, why it matters and what you expected instead. Then ask for the employee's perspective. There may be information or circumstances the manager does not yet understand.
Should a performance conversation focus on behaviour or personality?
Performance conversations should generally focus on observable behaviour and outcomes rather than personality or character. “You failed to submit the report by the agreed deadline” creates a much clearer discussion than “you aren't reliable”. Specific behaviour can be discussed and changed; broad personal judgements are much harder to act upon.
What is the difference between a performance conversation and disciplinary action?
A performance conversation is typically intended to clarify expectations, understand what is happening and improve performance. Formal disciplinary processes have a different purpose and may involve specific organisational procedures and employment requirements. Managers should not treat every early performance concern as though they are preparing for disciplinary action.
How can managers make performance conversations less confrontational?
Address problems early, use specific examples and approach the conversation with curiosity rather than assuming the cause. Ask what is happening and listen to the employee's perspective. The conversation should be about understanding and improving the situation, not winning an argument.
What questions should a manager ask during a performance conversation?
Useful questions include: What is getting in the way? How do you see the situation? Is the expectation clear? What support do you need? What needs to change? And what should we agree happens next? These questions help move the discussion from describing the problem towards improving performance.
Should managers document performance conversations?
It can be sensible to keep an appropriate record of important performance discussions, expectations and agreed actions. However, documentation should support good management rather than replace it. Recording a problem is not the same as managing the problem.
What should happen after a performance conversation?
Both parties should understand what needs to change, what support will be provided, who is responsible for what and when progress will be reviewed. Following up matters because an effective performance conversation should result in action rather than simply documenting that a discussion occurred.
What if an employee disagrees with the performance feedback?
The manager should listen to the employee's perspective and be willing to consider information they may have missed. Disagreement does not necessarily mean the conversation has failed. The aim is to establish as much shared understanding as possible while remaining clear about legitimate performance expectations.
How does the FBI Framework help with performance conversations?
The FBI Framework structures difficult conversations around Feeling, Behaviour and Impact. It helps managers move away from vague accusations by identifying the specific behaviour involved and explaining the impact it is having, creating a clearer basis for discussion.
How does the Milk Bottle Principle apply to employee performance?
The Milk Bottle Principle describes how unresolved issues become increasingly difficult to address the longer they are left. In performance management, addressing a meaningful concern early can prevent managers from accumulating examples until the eventual conversation becomes unnecessarily large and confrontational.
What is the biggest mistake managers make when addressing underperformance?
One of the biggest mistakes is confusing evidence gathering with management. Managers can spend weeks proving to themselves that a problem exists when the more useful intervention would have been a straightforward conversation when they first noticed it.
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