Work Matters

How to spot a liar, and why doing so might be harder if he's the boss

The May issue of the Harvard Business Review includes “Powerful People Are Better Liars,” a Q-and-A with professor Dana Carney. In an experiment, she took two groups of people and made one the bosses and one the subordinates. She had them perform functions relative to their roles in an imagined corporate food chain. They then were instructed to steal $100. They were told they would be questioned about it but that they could keep the money if they could convince the "investigator" they were innocent. Guess what? The boss cohort lied — and lied well. Need proof? Shoulder shrugs while speaking are a tell that someone is lying. The bosses only had 1.4 shoulder shrugs while being interviewed; the subordinates had a whopping 4.3. Other nonverbal tells, according to Carney: "You'll see people manipulate objects; they'll flip the cap on a water bottle or roll a pen. They'll fidget and do things like stroke their arms. . . . Liars are trying to suppress something." (I have seen this in the real world.) Also, liars who think they got away with a lie involuntarily smirk and press their lips together. Their voices change, with a liar uttering more syllables per second at a higher pitch; they repeat words and sentences more. I was with a client who said that when he investigates employee theft, he always asks an employee, "If someone did XYZ, how do you think they should treated if caught?" The guilty always made excuses for the conduct; they projected their internal feelings. Also, I think liars who are good at prevaricating create their own moral universes, with rules and protocols that make sense to them. Look at the HBO show "The Sopranos." The main characters lied (and did much worse) because their created world was set apart from the accepted moral universe — precisely so they could operate comfortably and effectively in it. One final thought on lying and truth telling from Mark Twain:" Always tell the truth, that way you don't have so much to remember." And that's the truth.

Dare to be different

The best-written business book I have read in a long time is "Different: Escaping the Competitive Herd: Succeeding In A World Where Conformity Reigns But Exceptions Rule" by Youngme Moon. Here is her big idea: Companies compete by imitating one another. The more they compete, the more alike they become. Example: McDonald'’s offers fancy coffee; Starbucks offers breakfast. As companies ape one another, becoming more similar instead of more distinctive, their products become more of a commodity. She nails it: "Once consumers realize that all airlines offer frequent-flier programs, that all detergents offer enhanced stain fighting, that all companies offer good warranties, they have less reason to be picky in their selections." Her remedy: Make a consumer's expectations irrelevant. Provide her an alternate reality, not the expected reality. What are some example? Google offers a clean home page, not a cluttered one. Ikea does away with a big warehouse to sell furniture and dumps home delivery, but it simplifies its offerings, provides sleek showrooms and offers child care. Jet Blue gets rid of free meals, the option of flying in first or business class, and round-trip discounts. The airline replaces those things with plush leather seats, a personal entertainment and satellite system in every seat, and a promise never to bump a passenger. She calls these "idea brands." But do her ideas apply to providers of professional services, such as firms? Maybe so. It's not hard to spot firms aping each other. One firm offers a blog on its website, another follows suit. One firm promises to offer alternative billing (I prefer the term transparent billing), another does so, too. What would a firm embracing an idea brand do? Some suggestions:

• Announce that it does not care about profits per partner. PPP goes in the Dumpster.
• Abolish compensation systems built on billable hours and originations, and replace them with a system that rewards putting the client first.
• Let clients edit the bills. No argument. No ,"Geez, let me explain to you why these fees are fair."
• Use the types of newly developed software that lets lawyers and clients access a central module for discussion and idea generation.
• Train all lawyers in social media and let them engage in it at work.
• My mom told me this: "If you say something is important, then treat it as if it is important." Firms can look at what they currently say is important and then ask whether they are treating those things accordingly. 

These are just ideas for discussion. No one knows The Way because we are dealing with humans, sellers and buyers, lawyers and clients. As Moon perceptively writes, “I have decided it's not that the truth is elusive, it's that it is liquid. It comes at you from all sides, springing leaks at you from every possible angle. What this means is that the danger for the scholar is not in confusing what is true with what is false, it's in allowing yourself to get seduced into thinking that it's possible to be definitive about anything. Because when it comes to human behavior, the truth is more expansive than that. When it comes to human behavior, the truth is an ocean."

Asked and answered: Advice for the interview

One of my favorite parts of The New York Times on Sundays is in the business section. "Corner Office" features an interview of an exec. Back in April it was Jilly Stephens, the director of City Harvest, a New York City nonprofit that distributes food through community programs. When she hires, she asks a direct question about what appeals to the applicant about the job, She expects an equally direct answer and is always surprised when someone is still answering after 15 minutes. Her advice to new managers: Let subordinates know who you are, what they should know about you and how you like to operate. She notes she tells her reports that, at times, she has been told she looks angry, but she is usually not — it is just her face. Finally, she believes the best career advice to somebody getting out of college is to "take a gap year. It's invaluable to get out there and experience the world. because you've got a lifetime of work ahead of you." I agree and did just that (although I took the gap time by dropping out of college and then going back). I like these short interviews. They tell us, I think, a lot more than shows like "Undercover Boss." Like the method U.S. Supreme Court Justice John Paul Stephens uses in interviews: direct questions + direct answers = revelations.

Draft codes of conduct to stop employees from digging themselves in deeper

Do you ever listen to Slaid Cleaves, a singer/songwriter from Texas? His signature song, "One Good Year," deals with hard ethical issues: "It's a bitter wind/in your face every day/it's the little sins that wear your soul away/when you start giving in/where do the promises all go/will your darkest hour write a blank check on your soul ?" Give a listen. His chilling lyrics remind me of cognitive dissonance as discussed in "Mistakes Were Made (But Not By Me): Why We Justify Foolish Beliefs, Bad Decisions, And Hurtful Acts" from Carol Tavris and Elliot Aronson. Cognitive dissonance is the human inability to hold two competing ideas in our heads at the same time; our minds compel us to rectify the dissonance. The authors give the example of the government official who took a free lunch from a lobbyist. The official violated a clear rule in doing so. But, he may have thought he was an ethical official, according to Tavris and Aronson; the two competing ideas could not co-exist. What did he do? The authors write that he committed a slightly worse second and third act, ending up in federal prison. Based on their studies of cognitive dissonance, they believe that when people act out of the ordinary, there is an explanation. They think the explanation for his conduct was that he was seeking to validate the initial wrong. What does that theory mean for lawyers? Code of conduct polices should encourage self reporting when an employee makes an initial mistake. Policies should note that everyone, from time to time, falls short in some way. It should let workers know they won't get hammered for a minor violation, like taking the free lunch. If not, the employer runs the risk that the employee will resolve the cognitive dissonance in a way that helps no one. One final thought: People often go astray because we want things. Yes, we tell ourselves, we deserve these things, and others who are not our equals have them. When tempted by this reasoning, listen to a great American, Woody Guthrie, "This Morning I Am Born Again" as sung by Slaid.

A modest proposal: Law school exams should measure skills lawyers use

A law student recently was telling me about a law school exam. It jolted my memory — the semester riding on a three-hour test; time-pressured answers; and the one riot/one Ranger aspect of getting the answer right, all on your own. The drill has changed in one respect since my law school days: Almost everyone types their answers, with only a few writing it out old school. They can type faster than write, thus squeezing more into their answers in hopes of picking up as many points as possible. I remembered an essay about law school exams and, upon returning home, dug it out. It is from Steven Lubet's excellent "The Importance of Being Honest: How Lying, Secrecy, and Hypocrisy Collide with Truth in Law." Lubet's honest take on why we have these types of law school exams: "[T]he dirty secret (if it is a secret) is that law schools rely on exams primarily because they are easy to grade. The intense time pressure guarantees that the answers will be relatively short and, even more important, that quality will differ significantly among students. Exams do a great job of dividing test-takers into measurable categories, even if those categories measure nothing more than an ability to take tests in an artificial, non-lawyerly setting." His other point is that law school testing does not measure what lawyers really do — namely, gather facts, demonstrate tenacity and diligence, or (as I always hope to see) show courage and initiative. The lawyers I want working with me are those who have my back like I have theirs; who possess the character to speak up when they think I am wrong or am missing something; and who understand that being quiet and saying nothing is not the safe choice. Perhaps law schools were never meant to teach these qualities, but wouldn't it be nice if they tried?

3rd Court weighs in on what constitutes a hostile work environment

"The point of a hostile-work environment sexual harassment claim under [Texas Labor Code] 21.051 or Title VII is not to combat sexual harassment as an end in itself, however reprehensible such harassment may be, but to provide a remedy when sexual harassment rises to a level so ‘extreme’ and ‘abusive’ that it deprives the victim of equal opportunity in the workplace." That's the 3rd Court of Appeals in Austin on March 11. In Twigland Fashions Ltd. v. Miller the 3rd Court set aside a verdict for a plaintiff who claimed a sexually hostile environment based on, among other alleged conduct, her manager giving her two full-body hugs, telling her she owed him a kiss every time she messed up at work and telling her he loved her. This alleged conduct occurred over a 49-day period. The 3rd Court went so far as to imply that evidence of a manager directly soliciting sex from an employee must support a sexual harassment claim for a hostile work environment. The court also held that the plaintiff's testimony that she could perform her job well when the purported harasser was not in her store (she ran a women's clothing stop) meant her working conditions were not adversely affected and thus she was not denied equal opportunity in the workplace. Finally, the court held that only abusive working conditions warranted a finding of a sexually hostile work environment. That’s a pretty high standard — and it should be the same standard that applies to hostile environment claims based on race or disability. Using the court's logic, slurs based on race or disability would not a hostile environment claim make. Finding the right balance on this issue is, I know, tough. I talk more about the case in an April 8 podcast.