Work Matters

The lessons of 30 years as a lawyer: Show, don't tell.

Here is lesson No. 3, learned after these many years as an attorney: Show, don't tell. Facts do not speak for themselves. They ask for the lawyer’s advocacy. Recently, I read a résumé littered with phrases like "ability to energize employees," "achieved optimum efficiency by multi-tasking" and "track record of harmonizing different viewpoints." Like chocolate-covered doughnuts, these words are empty calories. A job seeker must show employers what he’s done, not tell them he’s great at doing it. Guy Kawasaki makes the show-don’t-tell point in his new book, "Enchantment: The Art of Changing Hearts, Minds, and Actions." He offers examples. In selling a car, explain how much it saves on yearly fuel costs, not that it gets X miles per gallon. In sharing diet-and-eating information, speak of gaining a half pound of weight, not about the 1,500 calories consumed by chowing down on a cheeseburger. In extolling the value of an iPod, eschew gigabyte talk in favor of how many songs it stores. As my mother taught me, "Always speak to people in a language they can understand." Here's another nugget of wisdom, courtesy of my supervisors at my first legal job at the NLRB: Always ask, "Are we helping the readers or listeners understand, casting illumination? Or are we making them work for significance, creating uncertainty?" OK, it wasn't that Shakespearean when I first heard it, and it was expressed in much more graphic language, but you get the idea. Maybe this is one time I will tell, not show.

Texas Rangers' World Series performance shows wisdom of giving employee a second chance

On March 17, 2010, I wrote about Ron Washington, the manager of the Texas Rangers and the club's decision not to terminate him for his one-time admitted use of cocaine. The post talked about the harshness and impracticality of zero tolerance police in the workplace — essentially one strike and you're out. The club decided not to cut ties with Washington, and both he and the ball club have been better for its decision. The story also reminds us that life, like litigation and trials, oscillates between deep lows and high highs and it is best not to get sucked into either. On to St. Louis.

The lessons of 30 years as a lawyer: Stay in the moment.

Here is lesson No. 2, gleaned from my three decades in the practice of law: Stay in the moment. In 30 years, I have been involved in lots of adversary proceedings: trials, arbitrations, administrative proceedings. Here is what I learned: There are highs and lows. My advice is not to get sucked into either. Let’s talk famous lawyer David Boies and the Buddha. In "Clutch: Why Some People Excel Under Pressure And Others Don't," Paul Sullivan writes that Boies ignores the highs and lows: "If Boies stopped to congratulate himself on a particularly deft cross-examination or tried to tally up where he stood, he would lose his focus . He would be out of the bubble." Former Austin cabdriver Brian Haycock nailed the idea of being in the moment in his excellent book, "Dharma Road: A Short Cab Ride to Self Discovery." He explains that Buddhism is about "taking life a moment at a time, living it and then letting it go. Everything else is a distraction. A score is a distraction. A goal is a distraction.” He writes, “This moment is the only moment that matters. To attain our goals, we need to have no goals at all." Boies & Buddha, attorneys and counselors.

The lessons of 30 years as a lawyer: Get the facts.

October is my 30th anniversary as a lawyer. A friend joked that she was buying me a tee shirt emblazoned with "A 30-year lawyer and only this T-shirt to show for it." I hope not. Every Monday through the end of the year, I’ll blog about the 10 things I have learned in 30 years -- often the hard way. Here is the first: Get the facts. People prefer to traffic in conclusions. Evolution wires us this way, because thinking in conclusions does not use up as much cognitive processing power as thinking factually. This made sense when trying to survive 30,000 years ago on the plains of the Serengeti but not now. Why else do people shy away from facts? As John Adams famously remarked, they are "stubborn things" that often make us uncomfortable. Finally, a thought from my mom, who told me this growing up: "There is a story on the surface and a story beneath the surface." All this means that facts are hard to dig out. Rule of thumb: It takes two to three times as long to figure them out as a lawyer generally expects. What to do, especially as a new lawyer? Take a negative, turn it to a positive. Talk about what everyone thinks but few dare to say. For example, every lawyer knows that the litigation process is a hard slog. But a witness may not. A lawyer who shares that information with a smile can build trust: "I wish I could promise you that this is the first and last time you will see me, but that is not the way the process works." Trust is the drill bit that gets the facts, on the surface and beneath.

Maternity leave, the Pregnancy Discrimination Act and summary judgment

Let's play claim or no claim. Employee gives birth. She is terminated while on maternity leave. She sues under the Pregnancy Discrimination Act. Employer asks for summary judgment, because she was not pregnant when terminated. Claim or no claim? The U.S. District Court for the District of Connecticut in sketched out these facts in its Sept. 15 opinion in Canales v. Schick Manufacturing Inc. and said "Claim." Why? The PDA, by its terms, does not just cover pregnancy but "childbirth," as well. Because the plaintiff alleged she was fired for childbirth, she was covered under the law. Summary judgment denied.

Motivation and performance in the work world

Recently I was reading the new issue of the Harvard Business Review and an article by Jonah Berger, a professor at the Wharton School of Business, got my attention. His big idea, according to the article "If You Want to Win, Tell Your Team It's Losing (a Little)," is that being behind makes people work harder. The example: Each person in one of several rooms is told he or she is competing with others to see who can make the fastest keystrokes. The winner will receive a cash prize. Each person receives feedback that he or she is far behind, slightly behind, tied or slightly ahead compared to the others. Guess what? Only those who were told they were slightly behind picked up the pace significantly. Being in that position boosts motivation and thus performance. So should such feedback be used in the work world? According to Berger, "Bonus structures typically reward the best performers. That's great for people close to the top but might even de-motivate those who are far behind and know they can't catch up . . . [so] evaluations that compare the second best to the best, and the 100th best to the 99th best, and give bonuses based on people's improvement could really increase motivation and effort." But for those of us who try cases, it is best to work in the moment: Once you start tallying up whether you are ahead or behind, you lose focus, you don’t gain it.

Retaliation claims based on an employee's participation in the complaint process

Let's play claim or no claim. A company hires two individuals to sell home security services. Promises allegedly are made on bonuses and commissions to be paid based on sales. Those promises supposedly are broken and the employees file claims with a state agency claiming they have not been paid in accordance with those promises. Attached to the employees’ claims are contracts that contain confidential customer information. Why? The state agency asked for any documents supporting their claims, so the employees thought the request covered the customer contracts. The agency sends the claims and attachments to the employer, which then fires the employees for violating company policy on disclosing client information, a policy they acknowledged receiving. The employees sought summary judgment on their claims, arguing that their terminations violated the anti-retaliation provisions of the Fair Labor Standards Act. And guess what? The court granted their motion, holding that they were terminated for "participating" in a process to complain about a violation of the law. In other words, the company admitted that it terminated the employees for filing the claims with the attached information, and thus it loses. That’s what happened in Randolph, et al. v. ADT Security Systems Inc., a 2011 U.S. District Court opinion out of Maryland. It reminds me of a line from "A Frolic of His Own," a novel about the legal system by William Gaddis, "Justice? You get justice in the next world, in this world you have the law." A reminder to be careful on retaliation claims based on an employee's participation in the complaint process.