Work Matters

Improve associates’ performance by letting them meet clients

Here is a modest suggestion to improve the productivity and morale of the more junior lawyers at the law firm: Take them out of their offices and into the field to meet clients.

While this has always seemed intuitively correct to me, new research supports it. In his book, “Give and Take: A Revolutionary Approach To Success,” Adam Grant discusses a study involving radiologists. Half of them received CT scans to review, and the other half received the CT scan along with a photo of the patient.

The result? Attaching a patient’s photo increased diagnostic accuracy by 46 percent. In fact, around 80 percent of the key diagnostic findings came only when the radiologists saw the patient's photo.(And these numbers are in the context of seeing if the radiologists could detect abnormalities unrelated to the primary reason for the exam.)

Wait, there's more, as the late night infomercials proclaim. Showing the photos encouraged empathy. For the CT scans accompanied by a patient's photo, the radiologists wrote reports that were 29 percent longer.

Want good work from the associates who report to you? Invite them with you to meet with clients.

 

Networking nugget: Find jobs by reactivating dormant ties

In "Give and Take: A Revolutionary Approach to Success," Adam Grant divides people into three groups: the givers, who give more than they receive; the takers, who take more than they give; and the matchers, who give tit for tat, even in an exchange of favors. I’ll come back to the groups in a minute.

Grant discusses a well-known study: People more often hear about a job opening from someone with whom they share a weak tie than from someone with whom they have a strong tie. That’s because people with strong ties to each other travel in the same circles, so they know about the same opportunities. People with weak ties, by contrast, open up access to other circles, generating original leads.

But it’s difficult to ask a weak tie for help. That’s where the group-categorization comes in: Givers can reconnect with a weak tie they helped years ago just because that person needed a helping hand. People remember who assisted them when they were struggling.

And if the person to whom the weak tie/giver reaches out is a matcher, he will go out of his way to even up the score and set the universe right.

Another thing for networkers to try: Reactivate a dormant tie. In contrast to a weak tie, a dormant tie is someone you knew well or saw often but with whom you’ve fallen out of contact. A series of studies shows that reconnections re-awakened feelings of trust, and the dormant ties provided fresh and useful information.

Grant writes, “When we need new information, we may run out of new ties quickly, but we have a large pool of dormant ties that prove to be helpful. And, the older we get, the more dormant ties we have, and the more valuable they become. [Researchers] found that people in their forties and fifties received more value from reactivating dormant ties than people in their thirties, who in turn benefited more than people in their twenties."

How do you build up a big bank of trust? Follow the five-minute rule that Grant quotes Adam Rivkin as laying out: "You should be willing to do something that will take you give minutes or less for anybody." So, pick up the phone, fire up the email, reconnect and be generous, and prosper.

 

Speech and headscarves: EEOC v. Abercrombie & Fitch Stores Inc.

Anyone with an interest in the intersection of the First Amendment and employment law should read Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores Inc., an April 9 opinion from the U.S. District Court for the Northern District of California.

The opinion sets out the key facts: The defendant allegedly rejected a female Muslim applicant for a job, because she wore a head-covering called a hijab, which she claimed was mandated by Islam. The EEOC sued, alleging religious discrimination.

Why would the hijab be a big deal to the defendant? I don’t shop at Abercrombie (I don't think they carry anything in my size), but the opinion relates that the retailer stresses a certain hip look, its sales employees are "living models" of its clothing, and the look it strives for is “East Coast” and “preppy.” The hijab does not fit into that. (By the way, the opinion notes that the company now has adopted a policy to accomodate employees who believe they must wear a hijab.)

The company lodged an affirmative defense that enforcing Title VII would unconstitutionally violate its right to commercial speech — namely that "living models" are advertisements entitled to First Amendment protection. The EEOC moved for partial summary judgment on that issue.

The court granted the motion and did the cha-cha around the company's argument, noting that the position applied for involved receiving new merchandise into the store and stocking shelves, not as a salesperson who "lives" the Abercrombie look.

“The court leaves to another day the more difficult question of whether a living model, whose stated job responsibility is to advertise Abercrombie's brand, constitutes commercial speech,” wrote Judge Edward J. Davila.

There are — and will be — other collisions between Title VII and free speech rights. What if a manager believes that woman should stay home barefoot and pregnant, and he says that in the workplace? Can these comments provide the fodder for establishing an unlawful hostile environment, or are they protected and thus cannot? Don't forget: The First Amendment can be a defense to a Title VII claim.

Discovery and deletion of Facebook evidence in litigation

I’ll bet that most plaintiffs’ Facebook accounts contain run-of-the-mill, explainable and oh-so-boring posts. Yet, plaintiffs fight tooth and nail to stop defendants from gaining access to those accounts during litigation.

For one case that did not turn out well for the plaintiff who sought to defend the sanctity of his Facebook account, check out Gatto v. United Air Lines Inc., et al. that came out of the U.S. District Court for the District of New Jersey this year. The magistrate judge’s opinion sets it out: Airline worker Frank Gatto claimed he was severely injured when another airline’s equipment crashed into him. The defendants asked for his Facebook account information. Later, Gatto deactivated his account because he had been "hacked into" on numerous occasions. By not re-activating his account within 14 days, the contents disappeared forever.

Result: The magistrate judge granted the defendants' motion, ordering an adverse inference instruction for the jury against the plaintiff regarding the deletion of the Facebook page. Note: The magistrate judge held that, in making this kind of decision, it’s generally irrelevant whether a party was culpable.

The worst seldom comes to pass. We make thing worse by thinking it is so. Sometimes it is just easier to comply than fight or, in this case, destroy.

 

Make writing simple and direct

Lawyers pride ourselves on being good writers, but sometimes wordiness obscures the power of our messages. Help is available. 

Bryan A. Garner’s new book "HBR Guide to Better Business Writing" is full of useful advice. I especially enjoyed the section on avoiding business-speak. Here is a sampling from one of his charts:

• Replace “at your earliest convenience” with “as soon as you can.”
• Get rid of “in light of the fact that,” and choose “because.”
• Dump “we are in receipt of” in favor of “we've received.”
• Slash “thank you for your courtesy and cooperation in this matter” to “thank you.”

Bottom line: Cut the noise. Peggy Noonan makes the same point in “On Speaking Well: How to Give a Speech With Style, Substance, and Clarity.” She argues that people need to use good and simple words to express heartfelt feelings. She notes that a soldier shot in battle does not explain to his buddy that a bullet has struck him but that he has been hit.

Noonan recommends watching a scene in "The Godfather: Part II" in which Hyman Roth speaks from his heart to Michael Corleone about Roth’s murdered friend, Moe Green. Green is a Las Vegas casino owner, and Roth knows Corleone ordered him killed.

Francis Ford Coppola and Mario Puzo, author of the novel “The Godfather,” wrote the screenplay. Noonan calls the speech one of the best in the second half of the 20th Century, and she’s right. I watch it whenever I am stuck.

Garner, Noonan and Coppola/Puzo — they can help lawyers express ourselves.

Discipline for tardiness: summary judgment and the Americans With Disabilities Act

The courts continue to explore the contours of the Americans with Disabilities Act. Here’s a diamond mine, full of gems for plaintiffs lawyers, from the 2nd U.S. Circuit Court of Appeals: a March 4 decision in McMillan v. City of New York.

The opinion sets out the simple facts leading to a wide-ranging holding. The drug the plaintiff takes to control his schizophrenia makes him drowsy in the morning, and he is unable to arrive at work on time.

But what constitutes being on time? Employees in his department could arrive any time between 9:00 a.m. and 10:00 a.m. But he sometimes arrives after 11:00 a.m.

He was disciplined for tardiness with a 30-day suspension without pay. He sued, and the trial court tossed him out on summary judgment. The judge held that arriving on time was an essential function of the job, the plaintiff couldn’t do so, and therefore, he didn’t make a prima facie case.

The appeals court gave the trial court a fairly gentle bench-slap:

"This case highlights the importance of a penetrating factual analysis. Physical presence at or by a specific time is not, as a matter of law, an essential function of all employment. While a timely arrival is normally an essential function, a court must still conduct a fact-specific inquiry, drawing all inferences in favor of the non-moving party. Such an inquiry was not conducted here." (footnotes omitted)

The 2nd Circuit noted that summary judgment was inappropriate, essentially holding the employer's good intentions against it. After all, the court noted, the one-hour arrival-time window could mean that punctuality was not all that important to job performance, and, after all, the employer allowed late arrivals for many years.

The appeals court also noted that the employer could have provided reasonable accommodations to the plaintiff, including granting his request to come in late and work late (although this would mean the plaintiff would work without supervision) or could have allowed him to accumulate more banked time off to cover his late arrivals.

One final shining nugget for plaintiffs: The court held that, to win, the plaintiff need not show that the employer's reason for any adverse employment action was a pretext for discrimination. The court wrote:

“Here, it is undisputed that [the plaintiff] was tardy because of his disability and that he was disciplined because of his tardiness. In other words, [he] was disciplined because of his disability. Pretext is not an issue in this case; instead, [the plaintiff] need only demonstrate that, with reasonable accommodations, he could have performed the essential functions of his job.”

The news isn’t all bad, however. In closing the court wrote that, on the record before it, it couldn't "conclude that a reasonable juror would find [the plaintiff’s] claims to be without merit. If the factual record is developed further, some or all of [his] claims may not survive summary judgment. On the record before us, however, dismissal is premature."

I think that summary judgment is likely on remand for the plaintiff. The times they are a-changing.

Help clients make better decisions by expanding options

The upside of spending a lot of time on airplanes over the past few weeks is uninterrupted reading time. I finished "Decisive: How To Make Better Choices In Life And Work," by brothers Chip Heath and Dan Heath. Every lawyer should read it, because it teaches us how to be better counselors-at-law.

The authors offer a scenario: A small upstart company sells hair products for mixed-race women. A much larger competitor enters the same market with a similar product name and packaging. What to do?

The Heaths advise not falling into the binary-decision trap — what they call a whether-or-not decision. Here, one question is whether or not the upstart should sue. But the Heaths argue that a wise counselor's job is to expand the horizon of options the client can see.

By way of example, an adviser could ask the opportunity-cost question: What else could we do if with the same time and energy we’d otherwise spend on a suit? The answer might be to hire more sales staff or start a PR campaign, which, in turn, could achieve the ultimate goal more effectively.

Also, the Heath brothers urge those in the position of counselor to help clients develop what they call "base rates" from outside sources. That means nothing more than talking to those who have been through similar experiences. Here, an IP lawyer could provide helpful input on the cost, length and outcome of similar suits.

The Heaths say that lawyers, like other experts, are great for developing this information based on the present and the past. But, the authors caution readers never to ask lawyers to predict the outcome of the possible suit. They say asking a lawyer about the future shifts the lawyer from fact-giver to advocate, and the lawyer will offer overly favorable odds on victory.

The Heaths go on: “We don't want to overstate the case here — a good IP lawyer will surely know the difference between a slam-dunk case and a long shot. The point is that the predictions of even a world-class expert need to be discounted in a way that their knowledge of base rates does not. In short, when you need trustworthy information, go find an expert — someone more experienced than you. Just keep them talking about the past and the present, not the future.”

The book is full of lots of similar ideas and tactics. It’s well worth the investment to become a wiser and more effective counselor.

In depositions, ask questions on both sides of the coin

I have tried a lot of age discrimination cases; I’ve won some and lost some. And I’ve taken lots of depositions in such disputes. Here’s something I’ve learned: It pays to examine both sides of the coin.

Sure, ask whether the plaintiff ever heard comments by managers displaying animus against older people or whether those managers did nothing to stop others from making such comments.

But also ask the inverse questions: Did the plaintiff hear managers make comments lauding the value of youth, or did the plaintiff observe managers failing to act when others did so?

You might be surprised what you learn.

Thwart introduction of “me, too” evidence of discrimination

Courts continue to confront whether to admit “me, too” evidence in discrimination trials. Me-too evidence is when the plaintiff seeks to parade before the jury a bunch of witnesses who claim that the defendant discriminated against them, as well. The appeal for plaintiff’s lawyers is the ability to argue, "Where there’s smoke, there’s fire.”

Well, California’s 2nd Court of Appeals affirmed a trial court’s decision to exclude a certain type of me-too evidence; its reasoning is instructive. Let's look at Hatai v. Department of Transportation. et al., decided on March 4.

The opinion sets out the facts: The Asian plaintiff alleged discrimination by his Arab manager, who allegedly exhibited anti-Asian animus. At trial, the plaintiff sought to offer evidence of discrimination against non-Asians because of "general xenophobia against non-Arabs." The trial judge refused to admit the evidence, dryly noting in court, "That's not what you pled in your complaint."

After a three week trial, the jury found against the plaintiff. He appealed, arguing that it was error not to admit the proffered evidence.

The appeals court quickly gutted the argument: “Here, Hatai alleged he is a person of ‘Asian or Japanese race or national origin or ancestry,’ and that he suffered discrimination, harassment and retaliation on the basis of his national origin and/or race. Thus, the ‘me-too’ doctrine entitled Hatai to present evidence that other employees at [a defendant] of East Asian or Japanese descent had been subjected to similar discrimination. However, given the nature of Hatai's lawsuit, the ‘me-too’ doctrine did not entitle Hatai to present evidence of discrimination against employees outside of Hatai's protected class to show discrimination or harassment against Hatai.” (italics in original)

Of course defense lawyers should fight any type of me-too evidence and seek to limit any such evidence, if it must come in at all, to the person or persons who allegedly discriminated against the plaintiff. And, really? Three weeks for a single-plaintiff case? Try that in Texas.

Mixed martial arts trainer can teach lawyers how to fight

I was talking with a private investigator the other night at a bar/restaurant near where I live. Because of her job, she needs to be able to handle herself. So, in addition to knowing how to apply a choke hold, she studies mixed martial arts. Three lessons from her trainer apply to the practice of law.

Lesson No.1: "It's easy to hit someone when you're not getting hit." An MMA champion was visiting the gym. The trainer set it up so my friend got to spar with him. She did the hitting, while the champ did the defending. She told her coach how much fun it was and that she was pumped.

His counsel: See above. Lawyers should learn the same lesson. Do not derive a false sense of empowerment from slapping around a pro se litigant, overwhelming a new lawyer or notching a string of victories in slam-dunk cases.

Lesson No.2: "When you stop flinching, then you'll be ready to get hit." The gist of this advice from the P.I.’s trainer is that, when a fighter flinches, she exposes herself, because her mind is AWOL. Flinching also causes a fighter to miss opportunities to hit her opponent.

A jury consultant with whom I work gives basically a witness basically the same advice when preparing the witness to testify at trial: No witness is bulletproof, and the other side will get in its licks. The witness must resist the opportunity to flinch, must lean into the punch and know that he will take the hit. Otherwise, the witness worries that he will deviate from the pre-approved story, try to defend the indefensible and, like the MMA fighter, get knocked out.

No.3: "Energy expended must be no more or less than needed for the task." I love this one. The trainer instructed my friend to run to develop aerobic endurance. She is all for it, promising to run for hours. He looks at her and quietly says "25 minutes, no more, no less." But why? The answer: That is the length of the fight, so do not do more or less than necessary.

The same is true for lawyers. Sometimes lawyers defend an employment suit by taking the deposition of everyone who the plaintiff states has knowledge of the events at issue. Really? Is this worthwhile? For a case where the plaintiff was making $15 an hour and the damages are capped?

The P.I.’s lesson to me, courtesy of her trainer, is this: Wisdom comes in all forms and from all sources. So, strike up a conversation with regulars at your favorite hangouts. You'll be glad you did.