Work Matters

Become aware of the power of the hidden brain

"The Hidden Brain: How Our Unconscious Minds Elect Presidents, Control Markets, Wage Wars, and Save Our Lives" by Shankar Vedantam caught my attention. His chapter on group decision-making is excellent. On Sept. 11, 2001, a company occupied two floors in the second tower. Everyone except one person on one floor perished; everyone except one person on the other floor lived. Why? Our unconscious minds tell us how to act. When the hidden brain (I call it the reptile brain; we developed it tens of thousands of years ago) confronts danger, it seeks consensus from other members of the tribe. Why? "Sticking with the group in our evolutionary history usually offered safety,” writes Vedantam. People turn to the group, just like our ancestors, losing our autonomy and abdicating our decisions. Vedantam theorizes that is what happened on the floor where 99 percent lost their lives. There may have been a desire to develop a shared narrative on what was occurring. What was different on the floor where all but one lived? One person could have seen that the other tower had been attacked and sensed something was very, very wrong. He then urged his colleagues to get out and get out now. Others agreed. Vedantam writes, "Being the second person to step forward is infinitely easier than being the first." His point: Those who died and those who lived thought they were making autonomous decisions, but they weren’t. By the way, Vedantam makes a point I want to stress: His book is not a value judgment on those who lived and those who died. It could have been that leaving turned out to be wrong, not right. His point is that people need to recognize that why we do what we do is not always within our control. Here’s an example: I am tapping this out at a bar. Last month, a huge, explosive sound came from the ceiling. The vents emitted something, maybe smoke, maybe dust. What did I do? I looked at my barmates and the bartender and froze in place. (It turned out a belt in the HVAC system broke.) What are the lessons for lawyers? Juries make decisions this same way. They often look to a leader in deliberations, following instead of leading. In voir dire, look for the person who could be a leader, someone who will sway other jurors against you. Strike that person.

The FMLA does not cover faith-healing trips that include a vacation aspect

A woman takes her seriously ill husband to their native country, the Philippines, to visit a priest at a Catholic church who is renowned for his "miraculous healing" abilities. On the trip she assists him with his basic needs, provides psychological comfort, carries his luggage, pushes his wheelchair and administers his medications. And, since they are home in the Philippines, they spend around 40 percent of their time visiting family and friends. She is gone seven weeks. Her employer fires her for the absence; she claims the leave was FMLA protected. Who wins? Her employer. Why? Her husband was not seeking medical treatment but a miracle. For FMLA protection to kick in, the relative for whom the employee is caring must be receiving treatment from a health-care provider as defined in the regulations. A priest is not included. On Jan. 4, the U.S. District Court for the District of Massachusetts in Tayag v. Lahey Clinic Hospital Inc. went further and noted that even if the FMLA protected caring for a sick spouse on a faith-healing trip, that coverage was lost because "the FMLA does not permit employees to take time off to take a vacation with a seriously ill spouse, even if caring for the spouse is an ‘incidental consequence’ of taking him on vacation." The opinion has a good discussion of "caring for," as well as addressing this novel issue. It’s worth a read.

Of slacks and sex discrimination

On Jan. 21, the 8th U.S. Circuit Court of Appeals joined other courts in saying that sexual stereotyping is a violation of Title VII. The 5th U.S. Circuit Court of Appeals has not addressed that issue yet, but here is a modest prediction: It will adopt the theory. In Lewis v. Heartland Inns of America, et al., a female hotel desk clerk has, as she characterizes it, "an Ellen DeGeneres kind of look." She wore loose-fitting clothing, including men's button-down shirts and slacks. (Historical footnote from me: The word slacks started in Dallas with the Haggar Co., whose founder wanted to provide men with pants for "slack time.") A manager did not like this look, supposedly saying that the employee lacked the "Midwestern Girl look" and that female desk clerks needed to be "pretty." The clerk got fired and sued. The appeals court, 2-1 said the clerk stated a claim for sexual stereotyping. The dissent, in what I call the "What has the world come to?" approach, wrote this: “Apparently, the majority would hold that an employer violates Title VII if it declines to hire a female cheerleader because she is not pretty enough, or a male model because he is not handsome enough, unless the employer proves the affirmative defense that physical appearance is a bona fide occupational qualification. . . . In my view, an employer's decision to hire or fire based on a person's physical appearance is not discrimination ‘because . . . of sex’ unless it is a pretext for disadvantaging women candidates.” We will see.

What firms can learn from football

What do Sean Peyton, Rex Ryan, Jim Caldwell and Brad Childress have in common? They are the four coaches whose teams will be playing this weekend in the NFC and AFC championships. Know what else? Each of them has a coaching style that is very 21st century: They don't yell, shout or demean their players. They would never, as one coach did, end practice only when the players became ill. Look at Childress,the coach for the Minnesota Vikings. His team had two weeks off before they played the Dallas Cowboys. Childress gave them the first week off, telling them that he trusted them to be ready to give it their all in week No. 2 before the Cowboys game (and we know how that turned out). These coaches do not micromanage. They lead. They are motivators, not deciders. They understand that most players are motivated intrinsically, not extrinsically, by the satisfaction of a job well done. This fits in with the idea behind Daniel Pink's insightful new book, “Drive: The Surprising Truth About What Motivates Us.” Pink calls the old style of motivation (the carrot and the stick) Motivation 2.0. He says those days are over, replaced by what he calls Motivation 3.0:

Motivation 2.0 assumed that if people had freedom, they would shirk — and that autonomy was a way to bypass accountability. Motivation 3.0 begins with a different assumption. It presumes that people want to be accountable — and that making sure they have control over their task, their time, their technique and their team is a pathway to that destination.

Pink applies this idea to law firms, arguing that the billable hour is a relic of Motivation 2.0. Listen:

[The] billable hour has little place in Motivation 3.0. For nonrountine tasks, including law, the link between how much time somebody spends and what that person produces is irregular and unpredictable. . . . If we begin with an alternative, and more accurate, presumption — that people want to do good work — then we ought to let them focus on the work itself rather than the time it takes to do it.

Different times call for different assumptions. This weekend of championship-caliber football is a reminder.

Lies your nerves tell you

I have been fortunate enough to try a fair number of suits. Many younger lawyers have not. One young lawyer I know may have a case go to trial soon, and she is concerned. She believes that she is not a slick lawyer, unlike her opposing counsel. She mentioned a few other worries. Here are some thoughts for any attorney facing an anxiety-provoking situation.

• The race is to the likeable, not the slick. For my generation the TV show that made our hearts race was “L.A. Law.” For this generation, the it series could be the new show, "The Deep End." Both featured lawyers in fabulous garments, looking thin and gorgeous. But these things, while nice to have and be, don't matter. Chad Higgins and Timothy Judge are cognitive researchers. Their experiment: Why are people hired for a job? The answer: likeability. Those perceived to be pleasant people had an edge.
• Mistakes are OK. We all think we are at the center of our storyline, our own universe. We are not. A common human fear is that we will mess up and everybody will be looking at us. But they won't. Richard Wiseman ran an experiment with actresses dubbed Sarah and Emma. Wiseman had them demonstrate to a group how a new blender worked. Sarah was flawless, Emma less so but still capable. The one more likeable and thus better able to sell the blender? That's right: Emma.
• If you make a mistake, not everyone will be looking at you. The Barry Manilow study done by Thomas Gilovich should provide some comfort to all lawyers on the eve of a big presentation. Gilovich had a student attend a meeting wearing a very uncool Manilow T-shirt. The student would be the object of attention because he came late to the meeting. The student thought he or she would be gawked at and the center of attention. In reality, only 20 percent of those at the meeting noticed. This is called the "spotlight bias."

Want to learn more? Read Wiseman's book, from which these examples are taken: "59 Seconds: Think a Little. Change a Lot."  Now, young lawyers, go out there and try those cases!

Required reading from Dr. King

Yesterday I re-read the letter Rev. Dr. Martin Luther King Jr. wrote while he sat in a Birmingham jail. It is a model of persuasive clarity. It is also one of one of the most insightful writings on determining when a law is just or unjust. It is peppered with insights: "[F]reedom is never voluntarily given by the oppressor; it must be demanded by the oppressed." It would be great if the letter was part of a core reading module in our schools (including law schools).

The lingering effect of decisions made under the influence of negative emotions

My mother once told me that "a moment's pleasure often leads to a lifetime of regret." What if the opposite is also true, and a moment's pique can lead to actions that result in remorse? I was reading the January/February issue of the Harvard Business Review recently. A column by behavioral economics professor Dan Ariely deals with the ultimatum game, but with a twist for the role of emotion. In the game you tell another person you have $20 and say each of you will get a portion, but if he rejects the offer, both of you get zip. If the person is acting rationally, he always says yes; after all, he gets something he otherwise would not. Ariely's question: What role does emotion play in the decision? Would feelings cause people to make a decision where they get nothing? He and a fellow researcher showed some subjects a negative clip from the movie “Life as a House,” where a jerk boss fires an architect who goes wacky and destroys the firm's models, and showed others a positive clip from the TV show "Friends." As expected, when the group exposed to the negative emotions was asked to engage in the game, members rejected offers they considered unfair (you get $5 and I keep $15) even though they would be relatively better off by accepting the offer. The group exposed to the positive message accepted the offers with greater frequency, regardless of how the $20 was divided up. That’s to be expected, no? But what if the subjects in the negative group were asked to play the game again after time passed and their foul mood would have dissipated? The same results occurred. "They were tapping the memory of the decisions they had made earlier, when they were responding under the influence of feeling annoyed," according to Ariely. He goes on to note that "when we confront a situation, our mind looks for a precedent among past actions without regard to whether a decision was made in emotional or unemotional circumstances. Which means we end up repeating our mistakes, even after we've cooled off." His take home point: When you as a manager face emotional turmoil, including from personal matters, "Take a deep breath. Count backward from 10 (or 10,000). Wait until you’ve cooled off. Sleep on it. If you don't, you may regret it. Many times over." Check out Ariely's book, "Predictably Irrational" for more good stuff on how our minds work.

Points to ponder before the terminator strikes

Dickson, et al v. Avista Energy Inc., a Dec. 3, 2009, decision from the Washington Court of Appeals, Division III, brings to mind an issue I see every few years. Employees work for Company A. Company X buys Company A. The employees suffer not one day lost work because Company X hires them upon purchase. But Company A has an agreement with its employees that, should they be "terminated" by Company A, they get (in this case) one year's severance pay. That's what happened here. Do the employees get severance pay? Yes. The agreement says what it says. If Company A had wanted to narrow the circumstances or define "termination" more clearly to reflect its intent in providing severance, it could have. It did not, so it must fork over the do re mi. Cases across the country arrive at the same result. A warning to employers: Review your severance plans before any deals get done.

No more mommy tracks

I read an illuminating interview in the Dec. 27 issue of The New York Times in "Corner Office" with questions asked of Teresa A. Taylor, the new chief operating officer of Qwest. She talks about being a woman in an exec position and says she once kept two calenders: one for her business life,the other for her personal life. Why? Because she thought, as a woman, she could never mix the two. No more. She says she finally realized that women are pushed into a false dichotomy, either family or work. The two are not mutually exclusive (I wrote about this issue in a Work Matters column). And, she has a point. What matters is not how hard you work but how smart -- your effectiveness, not your blind dedication. Here is a suggestion for 2010: Let's deep six the "mommy track" and the illogic behind it. She also has some interesting ideas about conducting meetings. She asks three questions at the start: Do we all know why we are here? Does everybody need to be here? Are you going to ask me for something at the end, and, if so, let's get that on the table at the outset. Good stuff.

Make using Twitter one of your resolutions for 2010

I love Twitter. It is here to stay, as an incisive piece in The New York Times makes clear. It is the pulse of the world. A useful book from Joel Comm, “Twitter Power: How to Dominate Your Market One Tweet at a Time," illustrates its many business uses. He notes, by way of example, the challenge of finding the right person for the right job. He suggests going to search.twitter.com, typing in a few key words, say "copy" or "headline" if you are looking for a copywriter, and compiling a list of prospects from there. Read the potential candidates' timelines (Twitterspeak for their Twitter pages) and see how they answer questions, whether they freely provide information, how they interact with their followers and who follows them. Following someone long enough provides a sense, tweet by tweet, of who he or she is. I don't know where Twitter is going to end up in five years. No one foresaw, when the iPhone came out several years ago, that its most prominent feature would be all the apps. But both tech innovations will become more and more parts of our lives. Now, if you'll excuse me, let me go Tweet on that.