Work Matters

The consolations of poetry for practicing lawyers

There are two things I love: employment law and literature. While writing a column discussing poems about work, I came across a very powerful poem, "People Who Take Care" from Nancy Henry. Here is the start:

People who take care of people
get paid less than anybody
people who take care of people
are not worth much
except to people who are
sick, old, helpless, and poor
people who take care of people
. . .
come and go without much fuss
unless they don’t show up

Isn't that the hand-to-heart truth? Lawyers often see people as workers, not humans. We are unable to divorce their function from their humanity. We only miss them, as Henry notes, when they are missing in action. Think of the barista who knows how we like our coffee, the cleaning lady who gets the starch in the shirts just right, the bartender who makes the just-right martini. Henry then contrasts those who "take care" of others with "people who make more money/tell them what to do" but never sully their hands. And while ostensibly these are the ones in control, there’s something they never understand. Henry is a practicing lawyer. An anthology put together by Garrison Keillor, "Good Poems: American Places" (where this poem appears) quotes her as saying that poetry has been her refuge from the painful parts of and has offered her a way to process practicing law. Ms. Henry, I hear you.

Marshal facts to tell a story that fits listeners' pre-existing frames

Much of what people believe is wrong. Here is one example: If only others would open their minds to my facts and my reasoning, they would see they are wrong and agree with me. The mind does not work that way. All of us are wired with pre-existing beliefs, accreted over decades. We believe what we believe. Read "The Political Brain: How We Make Up Our Minds Without Using Our Heads" from Drew Westen. He tested what happens when one of our wired beliefs faces facts that contradict it. So, in the run-up to the 2004 presidential election, he took 30 subjects — 50 percent of whom were strong Republicans and 50 percent of whom were strong Democrats — who watched video of candidates clearly contradicting themselves. As expected, each group rejected the contradictions as to their candidate but embraced the ones of the other candidate. But here is what is interesting. A brain scan taken of each subject during the experiment showed that the part of the brain associated with reasoning did not light up. No reaction. But the part of the brain related to reward lit up like a pinball machine when the pre-existing belief was confirmed. Bottom line: The brain gets rewarded for confirming what it already believes, not what it does not already believe. The lesson for lawyers: In persuading others, look for a frame that a person already believes, and marshal the facts to support it.

Some thoughts on summary judgment from the 5th Circuit

Sometimes you need a good, solid case to stand for a good, solid principle. Here is one. An employee is a trainer at a call center. She becomes pregnant and begins her FMLA leave in February 2009. Her employer conducted a reduction in force just before she left, announcing that this layoff was the last and there would be no more. But she was terminated just before she came back from FMLA leave. Why? The employer claimed it did not need a trainer because there were fewer employees to train. She sued, claiming FMLA retaliation. All this is set out by the 5th U.S. Circuit Court of Appeals in its April 28 decision in Leal v. BFT LP. The 5th Circuit affirmed the trial court's grant of summary judgment. On appeal, Leal argued that the email was evidence that her employer's reason was pretext. And, to boot, she was a good employee. But the 5th Circuit essentially said these arguments were so much noise. It held that these points never took direct issue with the reason given for her termination, namely, the simple math of fewer employees equals less need for an employee to train them. The bottom line: For a court to deny summary judgment, there must be congruence between the reason the employer gives for its action and what the employee lobs back to refute it. No congruence, summary judgment granted.

Some golden rules for bosses to live by

I am a big fan of Robert I. Sutton and enjoyed his latest book, "Good Boss, Bad Boss: How to Be the Best . . . and Learn From the Worst." In it he sets out the "11 Commandments for Wise Bosses." Here are a few commandments followed by some of my thoughts:

No. 1: Have strong opinions but weakly held beliefs. Isn't that the truth? Flexibility is everything. While it is important to believe in something, a good boss must always ask "could I be wrong?

No.6: Do not hesitate to say "I don't know." Agreed. The point is to accomplish the mission, not boost your ego.

No. 11: Express gratitude to your people. True. But sincere graitude is not just a thank you; it is developing a true appreciation of how someone accomplished their task. And authentic gratitude nukes titles. So let's stop saying "he is my associate" and start saying "he is my colleague."

I would add one other commandment:

Develop a culture of free expression. The first time I work with new (and less experienced) colleagues I ask them, "Why do airplanes crash?" They never get the right answer. Airplanes crash because the co-pilot sees a blinking red light on the console. She thinks to herself, "The pilot has been flying for 30 years, so surely if something was wrong he would know, and I am not going to say anything and get yelled at." So she says nothing and the airplane crashes. Here is the take away I give new colleagues -- you will never be punished, or criticized, or made to feel dumb if you tell me what you think.

Anyway, give Sutton's book a read. You'll be glad you did.

Let's play claim or no claim

Take a look at Baham v. McLane Foodservice Inc., a July 1 opinion that lays out the following: An executive from Texas is in Honduras on vacation with his family. His daughter seriously injures herself in a fall and is airlifted to Miami. He takes leave under the Family and Medical Leave Act. At some point he returns alone to Texas, but he remains in frequent telephone contact with his wife who remains in Miami with their child. While in Texas he prepares for their daughter's return by padding the sharp edges in their home to protect her. His employer later terminates him and he sues claiming FMLA retaliation. Claim or no claim? Answer: no claim. The FMLA allows a parent to take leave to "care for" a child with a serious medical condition, but to "care for" requires physical proximity to the child, which is lacking here. So in Baham, the 5th Circuit affirmed summary judgment for the employer. Trust me, we will see more of these claims as  baby boomers are required to take care of their aging parents as well their young children, and family demands pull hard on boomers' time and energy. As this trend accelerates, keep in mind this bright-line rule.

The power of choice

Here is some great advice on persuasion from Dr. Samuel Johnson: It is always better to remind than to lecture. Isn't that the truth? A section from Harry Beckwith's insightful new book, "Unthinking: The Surprising Forces Behind What We Buy," reminded me of Johnson's wisdom. Beckwith sketches out an experiment in which researchers film people coming to a movie, counting how many had their seat belts buckled. Once inside, before the movie starts, the audience was shown a graphic film of auto accidents and what happened to those who didn't buckle up. The researchers then counted how many of the movie-goers buckled up on their way home; more people left without buckling up than had arrived without their seat belts on. Beckwith then tells readers that the expensive ad campaign "Buckle Up. It's the Law" failed. Again, an appeal to facts and reason. What has worked? A campaign channeling Johnson: "Click It or Ticket." Why? Because it gives people a choice. It does not tell them what to do; it lets them decide for themselves. One of my favorite movies is "Hoosiers," in which Gene Hackman plays the new basketball coach. He is under pressure to get Jimmy, a former player, back on the team. Hackman walks up to Jimmy as he shoots baskets and quietly tells him that the decision is his, he does not care one way or the other. Powerful. (Of course, you must be authentic and mean what you say, hand to heart.) I have tried a lot of cases and one thing plaintiffs lawyers effectively do in closing is this: "The defendant says XYZ. If you believe this, then I want you to vote for them. It is your choice." Choice, powerful or not?