Work Matters

Choose the right dream and pursue it the right way

I am reading "Shine: Using Brain Science to Get the Best from Your People" by Edward M. Hallowell, M.D. He writes:"Taken by itself, ‘Follow your dream’ could be the most dangerous advice ever given." Why? Because we get little guidance on which dreams to pick, just "sentimental advice to pursue a dream and the Calvinist command to work hard." The result: unhappy workers who turn bitter because of a mismatch between talent and job. A better way, he says, it to pick the right dream — one that suits you well enough that you will want to work hard and "if it doesn't come true, you will feel glad and proud that you pursued it anyway." He says that, if you select wisely, the pursuit of the dream becomes "the great reward, the love of your working life." His thoughts remind me of the great poem "Ithaca" by Constantine P. Cavafy, “As you set out for Ithaka/hope the voyage is a long one,/full of adventure, full of discovery. . . . /Keep Ithaka always in your mind./ Arriving there is what you are destined for./But do not hurry the journey at all./Better if it lasts for years,/so you are old by the time you reach the island,/wealthy with all you have gained on the way. . . ." Good advice from the doctor and the poet.

Buddhist wisdom for working with integrity

I am interested in how other cultures and value systems can help us become better lawyers. So I read with interest comments made about lawyers by Thich Nhat Hanh in his book "Answers from the Heart: Practical Responses To Life's Burning Questions." In the midst of intense litigation and trial, the challenge for lawyers is never to forget what an opposing counsel told me 25 years ago: "Once this is over, we will take off and go on to the next case, but we leave behind the litigants and witnesses. A lawyer should never forget this." Here are Hanh's thoughts on how to manage this challenge: "The lawyer can practice looking deeply with compassion and understanding, and help her clients look deeply so that transformation and healing become possible. Of course the lawyer has to protect, argue, and speak for her client; but she can also speak her heart. She can tell her clients what she sees on the opposing side and help them to understand the other side's point of view. When a lawyer expresses herself in court, she can water the seeds of understanding and compassion in the hearts of everyone, including the judge. This is very important. That kind of practice will be observed and appreciated by many people." Is this easy to do? No. But as President John F. Kennedy remarked on putting a man on the moon before the end if the 1960s, we don't want to do it because it is easy, we want to do it because it is hard.

Lincoln's words of wisdom

Read this is honor of President Lincoln, a great lawyer and writer. He would have been a great blogger.

Are deposition questions regarding a Social Security number, citizenship and alienage permissible?

When defending a discrimination case, can employer get discovery of the plaintiff's citizenship status? That's the question San Antonio's 4th Court of Appeals looked at in a mandamus proceeding, In Re K.L. & J. Limited Partnership, et al. Bella Viveros sued her former employer and a co-worker for a variety of employment-related claims. The employer sought to ask her deposition questions on the validity of the Social Security number she provided when applying for employment, as well as her citizenship and alienage status. The 4th Court concluded that the trial court abused its discretion in not compelling her to answer the questions about her Social Security number. The court concluded, "Without the ability to ask Viveros questions regarding the authenticity of the social security number she provided, the relators are unable to determine her true identity or to properly investigate her background to determine whether she made similar claims or whether she has a criminal history." But as to questions on citizenship and alienage, the appeals court concluded the employer provided no specifics on how inquiry into these areas would aid its defense. The employer argued that it needed to quiz her in these areas to test her credibility, conduct a background investigation, cross-examine her and determine whether to ask the trial court to dismiss the suit. The appeals court rejected these arguments. The opinion came out Dec. 10, 2010. This is a hot area of discovery and only is going to get hotter.

Wield the axe wisely

I am reading "Fire Somebody Today: And Other Surprising Tactics for Making Your Business a Success" by Bob Pritchett. One section of his book asks why managers and employers are reluctant to fire people. He nails it: We are afraid to admit we made a mistake in the hiring process, and we don't know how we will fill the position. I have a good friend who is a manager in the restaurant business. Whenever someone comes to him and says he or she wants to fire an employee, he asks, “Why did you hire the person? Have those reasons changed between then and today?” He wants to isolate whether it's the employee's fault that his job is in jeopardy or whether it is the manager’s fault for making a bad hiring decision. The point: Find out if you should fix the hiring process, so you don't need to trigger the firing process. I agree with this point, as well as Pritchett's second: Managers often evade their duty to terminate an employee who needs terminating, because the employee performs some key function. Pritchett says managers rationalize a no-termination decision. He captures the internal dialogue of managers in this circumstance: "Somebody has to do this job, and if we fire this person today, who is going to do the job tomorrow? We don't have anyone else to fill the position nor the time to find them." Pritchett is right, these are not valid reasons but "selfish excuses." Managers need to manage, get the facts and use them in making good decisions.

Finish strong

How to end a deposition of a plaintiff ? I have taken several hundred in 29 years, I generally end on  two points. First, I ask the plaintiff if he understands that, if the defendant wins, he will be responsible for our costs, such as what we pay the court reporter to take down the questions and answers. I figure it gives the plaintiff and his lawyer something to talk about in the elevator down to the lobby. I am amazed how often plaintiffs lawyers do not tell this fact to their clients. Second, I always tell a plaintiff that I know giving a deposition is not easy, and I thank him or her for being courteous and professional. But note: Only do this if you really mean it. Being professional is part of being a lawyer. The small things matter, and they matter a lot.

Questions to ask

Is there a magic bullet question that can be asked in a deposition? Yes. Plaintiffs and defendants can deploy it. Use it for a double or a triple, never a home run. Here it is: What facts do you have to show that [insert issue]? For instance, say an employee was written up and the write-up helped lead to her termination. Ask the plaintiff what facts she has to show that the manager gave her the write-up because of her gender/age/whatever the protected category is at issue. People think in terms of conclusions, not facts. The question often catches them flat-footed. But stay away from using this question to swing for the fences, as in asking what facts the plaintiff has to show she was fired because of her gender. That question invites a speech, not an answer.

How to hire

The Jan. 16 Sunday issue of The New York Times featured Robin Domeniconi, an exec for a media company, in its Corner Office interview. What does she think is useful in deciding to hire an employee? Well, not a résumé, which she never gives a second look. Instead she keys in on the questions the potential hire asks. Here are her current favorites: “What’s working for you right now? And what’s not working for you? If you bring me into this company to do this, what is it that you want me to accomplish, short term and long term?” She says these questions show her that an applicant is looking at outcomes and shows the ability to be flexible moving into a new environment. She also has an interesting idea on promoting civility in the workplace. She calls it M.R.I., an acronym for Most Respectful Interpretation of what someone is saying to you. She asserts that you can say anything to anyone as long as you say it in the right way. By way of example, “I’m just curious, and I want to understand what you’re saying better. Right now, my point of view is quite different. So can you help me understand why you don’t want to do this, or why you wanted to do this?” As my mom often remarked, how you say something is just as important as what you say.

Trouble ensues over office artwork with Bible reference

"And why are you worried about clothing? Observe how the lilies of the field grow; they do not toil nor do they spin." That's Matthew 6:28. But such a peaceful idea fueled a nasty suit. The 11th U.S. Circuit Court of Appeals set out chapter and verse in Dixon, et al v. The Hallmark Companies Inc., et al in an opinion delivered Dec. 9, 2010. Daniel Dixon and Mary Sharon Dixon are married. They were managers of an apartment complex. They hung on their office wall a 26-by-50 inch picture of flowers with the words "Remember the Lilies . . . Matthew 6 28" Their supervisor saw the picture and took it down as inappropriate for the office. Mary Sharon Dixon argued with the supervisor and insisted the picture be rehung. One thing led to another. she was fired for insubordination, and the supervisor allegedly turned to Daniel Dixon and said, "You're fired, too. You're too religious." The manager denied making the statement. The trial court tossed the suit on summary judgment, rejecting arguments that the statement was direct evidence of discrimination because, well, there was no “because” in the statement, as in "You're fired, too, because you're too religious." The 11th Circuit saw it otherwise, noting that the comment was made as they were getting fired. It was enough to require reversal. The Dixons did not fare so well on their retaliation claim. They claimed they were fired in violation of Title VII’s opposition clause, which prohibits terminating an employee who opposed an unlawful practice. The unlawful practice they opposed? The company's decision to keep its workplace free of religious symbols. The 11th Circuit agreed with the trial court’s decision to toss this claim, because the Dixons could not reasonably believe that the company's policy of keeping its own workplace free of religious references was unlawful — their belief had to be objectively reasonable, not just a subjective belief that the policy was unlawful. Back to the Bible: "Whoever is slow to anger is better than the mighty, and he who rules his spirit than he who takes a city." Proverbs 16:32. If you believe the Dixons, their manager got upset, fired them and vented the wrong words at the wrong time. What are a manager's options in this type of situation ? Refrain from getting upset, and calmly tell the employee that he or she needs take a moment to reflect on whether he or she will comply with the directive. If the employee decides not to comply, fire the employee in the presence of another manager, and memorialize the decision in a memo to the employee. Here is another option, though. Sit down and calmly think whether the employee's action deserves an approach worthy of the gunfight at the O.K. Corral. Not everything requires a showdown.