Work Matters

The lessons of 30 years as a lawyer: Fight the fear hierarchy creates.

Lesson No. 7:  Hierarchy kills. It drains motivation, imperils best results for clients and creates a suffocating workplace. Yet lawyers love it. Why? I think part of it comes from the false dichotomy of partners and associates. "By God, I am a partner. I rose up to be one. You must obey me. " Notice how tentative associates are around partners. It is fear. Fear fueled by hierarchy. Philip Zimbardo wrote a book relevant to this issue: “The Lucifer effect: Understanding How Good People Turn Evil.” Check it out. What is to be done about fear and its ill effects? Mandate free expression. Whenever I work with new lawyers I tell them they only need to remember one thing when they work with me. Then I ask them why airplanes crash. They give me various answers, but I tell them airplanes crash because the junior copilot spots a blinking red light on the console, thinks that if anything was amiss the senior pilot would say or do something, and decides he will not say anything that gets him yelled at. That is why airplanes crash. Lawyers should refuse to create fear in their teams. People in powerful positions in a hierarchy should not make themselves feel good about themselves by making others feel bad about themselves. Never.

The lessons of 30 years as a lawyer: Trust actions, distrust words.

Lesson No. 6:  I keep a paperweight on my desk. It proclaims the four core values of a large company:

• communication -- noting the importance of taking time to talk with and listen to one another;
• integrity -- stating that employees openly, honestly and sincerely work with customers and prospective customers;
• respect -- declaring that ruthlessness, callousness and arrogance don't belong; 
• excellence -- saying that the "great fun" will be discovering how good everyone can be.

The company? Enron. Here is a law of the universe, right up there with gravity: Trust actions, distrust words.

The difficult task of assessing whether an employee is telling the truth in an interview

Employers often question employees regarding possible wrongdoing. They must ferret out whether they believe employees are telling the truth. So, I was especially interested in the commentary on the Internet and sports radio on the Jerry Sandusky interview. In the interview with NBC’s Bob Costas, Sandusky, a former football coach with Penn State, proclaimed his innocence. Costas asked Sandusky (this is around 7:53 into the interview), “Are you sexually attracted to young boys, to underage boys?” Sandusky replied, “Am I sexually attracted to underage boys? Sexually attracted? You know . . . I enjoy young people. I, I love to be around them. . . . But no, I’m not sexually attracted to young boys." Thinking about employers' need to assess veracity, I checked one of my favorite books, "Liespotting: Proven Techniques to Detect Deception" by Pamela Meyer. In determining whether a person is telling the truth, Meyer advocates examining the choice of words and phrasing. She discusses "parrot statements," where a person repeats the question, word for word, which she believes suggests that the person doesn't want to answer the question. Two other keys, according to Meyer, are: 1. protest statements, involving a nonresponsive answer that nothing in the accused's background would show he is capable of deceit, i.e. "I am a good person. Why are you asking me these questions?" and 2. guilt-trip statements, in which the accused tries to avoid the question by attacking the questioner, i.e. “I bet you are not asking any of the executives where they were when the money went missing." It’s a good book. But it’s sad we need it.

The lessons of 30 years as a lawyer: Express gratitude.

Here is lesson No. 5 from my three decades as a member of the bar: We must express gratitude. We do nothing alone. Nothing. Dzigar Kongtrul writes this: “The truth is that our attributes are not possessable. Everything in our lives arises from causes and conditions, and in time, causes and conditions take them all away. No one is truly self-made from the start. So many factors contribute to who we are — we are not a closed system." That is from his book, "Light Comes Through: Buddhist Teachings on Awakening to Our Natural Intelligence." Here is an exercise on understanding gratitude, from an experiment described by Wray Herbert in his book, "On Second Thought: Outsmarting Your Mind's Hard-Wired Habits." The experimenter asked group No. 1 to think of something for which members were grateful and to write a narrative of how it came about. She asked group No. 2 to think of an event for which members were grateful and write a narrative of how it might never have occurred. After both groups did this, she assessed the members of each group on such measures as gratitude, joy, appreciation, distress and melancholy. Those in the second group came out higher on every measure of positive emotion. The lesson, according to Herbert,,it that imagining life without its blessings helps people see their conditions as new and surprising.  I have never really liked the movie "It's a Wonderful Life," but maybe tapping into our inner George Bailey is not such a bad idea.

Penn State lessons: investigations into alleged employee misconduct

Like many of you, I am following the unfolding Penn State situation and the university's handling of the matter. All of this got me thinking about investigations into alleged employee misconduct. Here are some thoughts on what to do.

1. Train managers who receive complaints of misconduct to actually listen to the employee’s concern. Too often a manager will argue with the employee. For example, "I have known Pete for 20 years and go to church with him. He would not sexually harrass anyone." The manager needs to declare a mental time-out: Do not dispute the information, but receive it. He should pass along what is learned up the chain of command, not handle it himself. And when I say what he learns, I mean facts, not conclusions; what was actually related, not what the listener translates on what was said.

2. Those up the chain, in deciding the appropriate response, need to engage in a technique called "propsective hindsight." This technique uses the power of a question, where the decision-makers ask themselves: "Let's pretend it is two years from now. Our decision to do XYZ comes to light. How will we respond to arguments that we should have done ABC instead?" The value of this approach is that it drains the discussion of emotion and avoids unfruitful confrontation because it focuses on the future.

3. Inculcate a culture that lives by this mantra: "Knowledge requires action. " Period.

4. A lawyer or counselor needs to look around the room of execs and say, "From this point forward we will be judged by what we do now." And if a poor decision results, and the world is looking at what was done, the same rule applies.

We all fall short, each and every one of us. What matters is our reaction. Harlan Coben wrote a column for Bloomberg titled "Coming Clean Is Only Play Left for Penn State" in which he says, "Do not circle the wagons. Do not worry about legal ramifications or liability or exposure. . . . You are a wonderful institution of learning with a rich academic tradition. . . . Please now remember the integrity with which you were established. You will be judged -- not only by what has already occured but also by what you choose to do about it now."

Five pointless questions to ask in a deposition

Here are five pointless things to ask in a deposition. Full disclosure: I have sinned as to each.

1. "Strike that." Court reporters, God bless them, take down every word. Telling them to erase your question is, well, pointless. You said it; they recorded it. End of story.
2. "Objection: Not responsive."In 30 years, I have said this a handful of times. But when you say it, the deponent thinks she is winning and you are losing. Let me suggest this instead: "I appreciate your answer, but my question was actually XYZ. Can you answer that?"
3. "Are you on drugs?" Geez. How did this make it into a deposition outline? It must be sort of like the Bible: The word was good, and it propagated itself upon the land. So, lawyers ask. I asked this question once. The plaintiff looked at me as if there was a cartoon-like bubble above her head saying, "Where am I? And who is this chubby and balding man sitting across from me? " I only asked this question once.
4. "What does this document say?"Well, it says what it says. So many lawyers have a deponent read a document, ask them to testify as to what it says, then do a victory dance like they scored a touchdown in the end zone when the deponent reads the text. Getting a witness to acknowledge the obvious is not scoring a touchdown.
5. "The deposition is taken under pain of perjury, do you understand that?"The deponent does not understand what this question means; he or she is clueless. It's sort of like asking, "Please tell the jury about XYZ." What jury? I thought it was just us sitting here in this conference room. This question is a waste of breath to ask.

Well, that's it. I am sure there are other pointless questions being asked in depositions around this great state. Once upon a time, I anguished over every answer to every pointless question. No more. A judge or a jury looks at a case from a 30,000 foot perspective. It is not about the trees; it is about the forest. It is not about the minutiae; it is about the broad narrative. So, take a breather.

The lessons of 30 years as a lawyer: The law is a grind.

Here is lesson No. 4 from my three decades in the law. While I love the law, it is a grind. It’s full of lawyers threatening sanctions, clueless judges antagonistic to airtight arguments, and arrogant and rude opposing counsel. You will get your hair messed up tangling with these people. But as an exasperated Hyman Roth let loose in “The Godfather: Part 2,” this is the business we chose. So, you just need to suck it up, which, according to the Urban Dictionary, is "[t]o endure a period of mental, physical or emotional hardship without complaining." This means not running to the judge every time opposing counsel pokes you in the eye, not dropping a footnote in a brief accusing the other side of unreasonable and unethical conduct, and not bullying a younger colleague who didn't guess what you were thinking. I return to Marcus Aurelius, "The cucumber is bitter? Put it down. There are brambles in the path? Step to one side. That is enough, without also asking ‘Why did these things come into the world at all?’ ” Now that’s good advice.

An interview question to ponder: Are you nice?

A while back, I ran across an interview with Andy Lansing, CEO of Levy Restaurants, in the Aug. 28 issue of The New York Times. The No.1 question Lansing asks of a job candidate is "Are you nice?" In fact, it is the very first question in his batting order. He says it catches candidates off balance; sometimes he needs to tell them he is serious and ask again. Whatever answer they give, he tells them that the way to succeed at the company is to be nice. If they are not and think that only performance matters, then they should think about whether they really will be a good fit there. While he finds that each candidate says he or she is  nice, there are candidates who later decide not to pursue the job. I love the question.