Work Matters

The well-balanced lawyer: the role of symmetry in attractiveness, leadership potential

I read several years ago that one characteristic dominates assessments of attractiveness: symmetry between the right and left halves of the body. The November 2011 issue of the Harvard Business Review got me thinking about the issue again. In "How Earlobes Can Signify Leadership Potential," Carl Senior, Robin Martin, Michael West and Rowena M. Yeats argue that their research demonstrates that the symmetrical are viewed as more intelligent and dominant than others. That's bad news for the dating lives of lopsided lawyers, but it might be good news if they want to lead in the 21st century. People often view the asymmetrical as transformative leaders, capable of motivating a team and settting their needs aside for the group's good, because the asymmetrical demonstrate empathy and social intelligence. The article theorizes that childhood asymmetry forces people to adapt to how others view them, thus developing greater emotional intelligence than the more genetically well endowed. So, how people look dictates who they become.

Powerful persuasive techniques from a lesser-known speech by the Rev. Dr. Martin Luther King Jr.

I recently finished reading "All Labor Has Dignity,” a collection of Rev. Dr. Martin Luther King Jr.'s speeches. One that he delivered on Sept. 8, 1962, in Monticello, N.Y., struck me not only for its moral clarity but also its rhetorical tactics. While all people are created equal, King understood that all words are not. Beliefs are only powerful if shaped by the right words in the right order. He says, "Three simple words explain the social revolution taking place in Albany and the South today." Doesn’t that make the listener want to hear what those words are? King does not just come out and say what he’s going to say, because the force of his message would be lost on the audience. He primes the audience to start thinking about what the words are, and he then frames what is coming by telling them what the words are not: "They aren't big words. One does not need to have a philosophical bent to understand them." He does this setup, and then he unveils: "They are three simple words: the word all, the word here, and the word now." He could have said simply, "We want all our rights now." But his construct instead invites the audience to discover this idea themselves. His technique of saying what the words are not creates a powerful contrast when he reveals what they are. The audience finds its own wisdom; he does not force it down their throats. King then makes this abstract idea concrete: "What we are saying is that we want all of our rights and we want them here in the red hills of Georgia, here behind the cotton curtains of Alabama, here on the soils of Mississippi. . . . We aren't willing to wait two hundred years for our rights." Masterful. He groups the words into threes, which is a perfect number for the human mind to grasp. He primes the audience to anticipate, then he lets them exercise some cognitive power, but not a lot, to discern how the words fit together. He hammers his message home, not by telling the listeners("We want our rights here in the United States') but by showing the audience with vivid examples: red hills, the cotton curtains, the soils. It’s masterful.

Lessons on persuasion from Seth Godin's book, "Poke the Box: When Was the Last Time You Did Something for the First Time?"

I am very interested in persuasion. Here is a key: How a person says something is just as important as what he says. So, I read with interest the travails of Ignaz Semmelweis as described by Seth Godin in "Poke the Box: When Was the Last Time You Did Something for the First Time?" Semmelweis was a doctor in Hungary during the 1860s. He was struck by an insight: Patients were dying because doctors failed to wash their hands. He was right, but no one listened to him. Godin asks why no one listened. Two reasons. First, Semmelweis thought the truth of what he was saying was self-evident and didn’t need an explanation. Godin writes, “Second, as reported by Atul Gawande in ‘Better,’ Semmelweis was a jerk. Impressed by his insight, he never bothered to persuade, or even to be patient. To one doctor, he wrote, ‘You, Herr Professor, have been a partner in this massacre.’ To another, ‘. . . I declare before God and the world that you are a murderer.’ ” You get the idea. As Dr. Samuel Johnson remarked, it is better to remind than to lecture. No one likes a finger-wagging lecture by a know-it-all. While Semmelweis is an extreme example, most people tend to believe so much in what they are saying that they ignore the needs of those they are trying to persuade. I imagine it is a little like love: If you insistently proclaim your devotion, the object of your affection retreats; but if you suggest, he or she may draw near.

The lessons of 30 years as a lawyer: No one can make another person change.

No. 10: Recognize the limits of control. I loved my mother very much. She was smart and taught me a lot. Here is one of her pearls of wisdom: You can't change people, you can only help them. This idea is timeless — and particularly important for lawyers, who tend to be strongly invested in their illusions of control. Read this from "The Second Book of the Tao," by Stephen Mitchell:

The duck's legs are short; you can't lengthen them
without making her suffer
The crane's legs are long; you can't shorten them
without causing him pain
What is long needs no cutting off; what is short needs no stretching
When you realize this,
You can let the world go its own way.
Do you think that you know what's best?
Do you think that the world
should conform to your way of thinking?
All these benevolent people —
how much worrying they do!
Since ancient times,
what a lot of fuss and upheaval
the benefactors of humanity have caused!

The lessons of 30 years as a lawyer: Be gracious

Lesson No. 9: Be gracious. It is the right approach. It generates good karma. “Karma” is Sanskrit for “action” or “deed.” And right action, coupled with right intention, multiplies itself.

It is November 1940. Neville Chamberlain has just died. Winston Churchill is now prime minister, having replaced his political rival Chamberlain in May 1940. Churchill told Chamberlain that he and his wife should take as much time as they needed leaving No. 10 Downing Street, the home of the prime minister. Chamberlain never forgot. While he didn’t support Churchill 100 percent, he never actively opposed him.

It fell to Churchill to eulogize Chamberlain at the House of Commons. It is one of the greatest speeches in the English language. Churchill starts off by acknowledging the roles chance and circumstance play in our lives: "In one phase men seem to have been right, in another they seem to have been wrong. Then again, a few years later, when the perspective of time has lengthened, all stands in a different setting."

Today's heroes are tomorrow's goats; today's goats are tomorrow's heroes. Churchill talks of how Chamberlain's hopes for peace were dashed — recall the iconic photo of Chamberlain returning from Munich and his meeting with Hitler, the peace treaty fluttering in the wind as he deplanes and his announcement of peace in our time.

Churchill goes on, "But what were these hopes in which he was disappointed? What were these wishes in which in which he was frustrated? What was that faith that was abused?" Churchill answers: "[T]he most noble and benevolent instincts of the human heart — the love of peace."

Earlier in the speech, he delivered these empathetic, honest and heartfelt lines: "The only guide to a man is his conscience; the only shield to his memory is the rectitude and sincerity of his actions. It is very imprudent to walk through life without this shield, because we are so often mocked by the failure of our hopes and the upsetting of our calculations; but with this shield, however the fates may play, we march always in the ranks of honour."

Churchill teaches lawyers to be gracious. He implores us to act with character. He counsels us to be decent. Following his advice is just not that hard. For example, some mistakes by lawyers can result in a judge pouring out the client based solely on that mistake. But sometimes the judge doesn’t do that; she spends a little more time and notes in her holding that she would have reached the same result in the absence of the lawyer’s error.

Once, in a tough venue for employers, I lost big in a trial. The plaintiff's lawyer took a minute to tell me I had done a good job. He acknowledged that he and his client had won a big verdict but noted that they still had to keep it. That was gracious.

I try to extend that spirit to others. At the end of my depositions, I thank the plaintiff for his courtesy and professionalism in a tough experience. Sometimes, lawyers do not do these kinds of things, because we think we will look foolish, appear weak or be exploited. But Churchill took the long view of right actions. Attorneys should, too.

Vote for Work Matters on the ABA Journal's Blawg 100 list of the best legal blogs

The ABA Journal has named Work Matters to its Blawg 100 list of the best legal blogs. It is an honor. There are nine other labor and employment law blogs, and voting is underway for the best one. If you've enjoyed Work Matters, I hope you would vote for it. Just go to the site, register, and go to the labor and employment section. There is a running total of votes. Linger on the site, and look at some of the blogs, which illuminate everything from trial tactics to what's going on at SCOTUS to legal humor. As Mother Mary Jones, a union activist remarked in the early 1900s: Sit down and read, and educate yourself for the coming struggles. Thanks for reading and voting.

The lessons of 30 years as a lawyer: Don’t fight the frame.

Lesson No. 8: Don't fight the frame. A jury consultant remarked to me long ago, "You can't change the facts, but you can change the story." I now understand. I have tried a lot of cases. What I know is that a lawyer can't force his client’s story on the story a juror already believes. Jurors have spent their entire lives developing frames of belief. The trick is to develop a frame they already believe. Jurors already believe that employers retaliate against employees who complain. A defense lawyer won’t change that frame. But here is another frame jurors believe: Sometimes employees complain, not for the greater good, but to feather their own nests. A lawyer’s narrative must be congruent with the jurors’ existing frames. You cannot change jurors’ frames to match your beliefs. It will not happen. I learned this lesson the hard way.

The lessons of 30 years as a lawyer: Fight the fear hierarchy creates.

Lesson No. 7:  Hierarchy kills. It drains motivation, imperils best results for clients and creates a suffocating workplace. Yet lawyers love it. Why? I think part of it comes from the false dichotomy of partners and associates. "By God, I am a partner. I rose up to be one. You must obey me. " Notice how tentative associates are around partners. It is fear. Fear fueled by hierarchy. Philip Zimbardo wrote a book relevant to this issue: “The Lucifer effect: Understanding How Good People Turn Evil.” Check it out. What is to be done about fear and its ill effects? Mandate free expression. Whenever I work with new lawyers I tell them they only need to remember one thing when they work with me. Then I ask them why airplanes crash. They give me various answers, but I tell them airplanes crash because the junior copilot spots a blinking red light on the console, thinks that if anything was amiss the senior pilot would say or do something, and decides he will not say anything that gets him yelled at. That is why airplanes crash. Lawyers should refuse to create fear in their teams. People in powerful positions in a hierarchy should not make themselves feel good about themselves by making others feel bad about themselves. Never.

The lessons of 30 years as a lawyer: Trust actions, distrust words.

Lesson No. 6:  I keep a paperweight on my desk. It proclaims the four core values of a large company:

• communication -- noting the importance of taking time to talk with and listen to one another;
• integrity -- stating that employees openly, honestly and sincerely work with customers and prospective customers;
• respect -- declaring that ruthlessness, callousness and arrogance don't belong; 
• excellence -- saying that the "great fun" will be discovering how good everyone can be.

The company? Enron. Here is a law of the universe, right up there with gravity: Trust actions, distrust words.

The difficult task of assessing whether an employee is telling the truth in an interview

Employers often question employees regarding possible wrongdoing. They must ferret out whether they believe employees are telling the truth. So, I was especially interested in the commentary on the Internet and sports radio on the Jerry Sandusky interview. In the interview with NBC’s Bob Costas, Sandusky, a former football coach with Penn State, proclaimed his innocence. Costas asked Sandusky (this is around 7:53 into the interview), “Are you sexually attracted to young boys, to underage boys?” Sandusky replied, “Am I sexually attracted to underage boys? Sexually attracted? You know . . . I enjoy young people. I, I love to be around them. . . . But no, I’m not sexually attracted to young boys." Thinking about employers' need to assess veracity, I checked one of my favorite books, "Liespotting: Proven Techniques to Detect Deception" by Pamela Meyer. In determining whether a person is telling the truth, Meyer advocates examining the choice of words and phrasing. She discusses "parrot statements," where a person repeats the question, word for word, which she believes suggests that the person doesn't want to answer the question. Two other keys, according to Meyer, are: 1. protest statements, involving a nonresponsive answer that nothing in the accused's background would show he is capable of deceit, i.e. "I am a good person. Why are you asking me these questions?" and 2. guilt-trip statements, in which the accused tries to avoid the question by attacking the questioner, i.e. “I bet you are not asking any of the executives where they were when the money went missing." It’s a good book. But it’s sad we need it.