Work Matters

Changing a losing trajectory

I am very interested in ethics so I enjoyed reading “Giving Voice to Values: How to Speak Your Mind When You Know What's Right” by Mary C. Gentile. She talks about how to change the mind of someone who is invested in a bad decision but who will not change course no matter what. Why is someone so stubborn? Gentile tells us that it comes from the all too human trait of fearing loss more than enjoying gain. We fail to change a losing trajectory from our tendency to frame issues in terms of a false dichotomy. Gentile references organizational scholar Chris Argyris’ theory of a defensive type reasoning peculiar to managers, writing, "[W]e are either winners or losers, in control or controlled," and thus wall off new information and points of view. Her solution? Help others view the previous decision as already having paid off, even if what the person has gained is not what she anticipated. Reframe from a "We did not get what we wanted" frame to a "What did we learn?" frame. I leave you with W.H. Auden and my mother. Auden nailed the human tendencies that Gentile writes about. In “The Age of Anxiety,” Auden writes, "We would rather be ruined than changed/We would rather die in our dread/Than climb the cross of the moment/And let our illusions die." My mother, ever the pragmatist, taught me that "all experiences in life are good ones as long as you draw the right lesson from them. Otherwise it is just something that happened to you."

Three techniques to use in questioning a witness

A goal in questioning a witness is to get him to agree to your question or make him look bad by not doing so. Here are three techniques.

1. Is this a fair summary? Here, you summarize facts on a point (tipped in your favor) and ask, "Is this a fair summary?" As long as you are looking for a single or a double, not a home run, this can work. The natural tendency of a witness is to answer "Yes" and not fight you on the slight slant.
2. Can you accept the fact? You can ask a witness if she agrees with you on a point, or you can ask if she understands your client's viewpoint. Usually these do not work. Try this instead: "Can you accept the fact that (fill in what you want her to agree to)?" If she says yes, fine; if she says no, the predicate in the question makes her sound unreasonable.
3. Take it to the limit one more time. That's a line from a song by the Eagles. Use it as a technique when a witness will not agree with anything you want him to affirm. So, "Are you saying that your manager had no redeeming qualities whatsoever?" I won a summary judgment with that question; in his order, the judge dropped a footnote citing the Q and A, with the A being "Yes," and concluding that this was a case of a personality conflict, not discrimination.

The ethics surrounding lawyers Facebook friending people in connection with litigation

Can a plaintiff's lawyer "friend" on Facebook high-ranking executives of a company he is suing and who he believes are dissatisfied with their jobs (therefore likely to make disparaging comments about their employer on FB)? No, not according to Ethics Opinion No. 2011-2 of the San Diego County Bar Legal Ethics Committeeissued on May 24. Why? It is a communication to a represented party and is motivated by a desire for information. Thus, it is a prohibited ex parte contact. What about a lay witness who is not a represented party?  That, too, is prohibited. Why? Under ABA Model Rule 4.1(a) lawyers may not in the course of representing a client make a false statement of material fact to a third person, and under Model Rule 8.4(c) may not engage in conduct involving deceit or misrepresentation. Bottom line according to the ethics opinion: It is “impermissible deception to seek to friend a witness without disclosing the purpose of the friend request. . . .” As the opinion relates, no party, represented or not, needs these kinds of friends. The opinion cites numerous other ethics opinions from around the country, as well as case law. It's a treasure trove of information.

How to make better decisions, despite the corrupting tug of power and the temptation of overconfidence

Power corrupts. But does it also cause people to make bad decisions and ignore good advice? Yes, according to Francesca Gino and Gary P. Pisano in "Why Leaders Don't Learn From Success," in the April issue of the Harvard Business Review. They did a study with two groups: Group No. 1 was asked to write about a time when they had power over other people, which boosted their confidence level. Group No. 2 was asked to write about a time when others held power over them, which predictably lowered their self confidence. Both groups then were paired with a subject-matter expert and were asked to make a series of decisions with the expert’s consultation and input. Guess what? When feeling confident, people gave their own opinions more weight, even though following the expert's advice would have made for better decision-making. Humility is important, and overconfidence, at times, gets people killed. "Inner Excellence: Achieve Extraordinary Business Success Through Mental Toughness" by Jim Murphy illuminates this idea. (This is the type of book I wish I had read 30 years ago.) He writes that one of the most humble groups he ever has met is the Navy SEALs. He quotes a SEAL who responded to his question on whether humility had any place in performing his job: "Definitely. Humility can defeat any opponent.” The SEALs goes on to explain that they may have to enter a building to kill a bad guy. He says “pride and false bravado” can prompt men to break down the front door, which can get them killed. But humility lets them step back and see the situation clearly, which might mean that the team needs to slip in quietly through the back door. Murphy goes on to write, "Humility starts with gratitude. Gratitude reveals the beauty around you and brings positive energy. A sense of gratitude reminds you that there's a bigger story than you that's unfolding. . . ." That, I think, leads to better decision-making, from the battlefield to the boardroom to the courtroom.

Get the clutter out of the way

I was in Houston recently where there was a lot of coverage of the perjury case mistrial of Roger Clemens. I recall a newspaper reporting that in part of the opening by a Justice Department lawyer, he said the case was not about a slip of the tongue or a momentary memory lapse. Why can this be an effective technique? All of us hear a few facts and we jump to conclusions. We are programmed by evolution to think this way. It is how we made split-second survival decisions tens of thousands of years ago. So get the clutter out of the way upfront and anchor what a person is hearing. Here is the start of an opening I gave in an employee raiding case where I represented the plaintiff company. As alleged, the defendant had left his employment and was recruiting former colleagues in violation of his contract: "Now, let's be clear. No one is going to get on this witness stand from Company A and say that Company A should not have to compete for customers. No one is going to get on this stand and say, ‘Mr.Jones, you can't start a new business.’ Company A is only saying that he must honor his promise -- the promise he made in his employment agreement not to hire away his former co-workers." This technique is useful in a lot of different contexts ("Joe, we are not meeting to fire you, but to talk about some concerning performance issues"). Give it a try.