Work Matters

The lawyer as patient: learning the lessons of the doctor’s office

I went to the doctor the other day. It's a good thing for lawyers to do. Health aside, when we are the advice-seekers instead of the advice-givers, we are the ones in unfamiliar territory, we are the ones not in control, and we are the ones whose lives are in the hands of another. It teaches humility. And, admit it or not, it puts us in the position of looking for a connection from another: a smile, a clear and patient explanation, a word of understanding.

I’m reading a new book from Seth Godin, "The Icarus Deception: How High Will You Fly?" and my doctor's visit reminded me of this passage:

It's easy to treat people as invisible, as long as we get what we want. . . .[but] when we humanize the person at the other end of the counter or the phone or the internet, we grant them something precious — personhood. When we treat the people around us with dignity, we create an entirely different platform for the words we utter and the plans we make. It's impossible to connect with a device or an automation. It's worthwhile to connect with a person, to someone we have granted the dignity that she deserves.

Truly understanding this lesson and mastering its meaning makes us better people and more effective lawyers, whether with clients, colleagues or juries. Take opportunities to learn its value.

Let's play claim or no claim under the ADA

A staff lawyer for a government agency starts falling asleep at work. He is diagnosed with sleep apnea, given a device by his doctor (a Continuous Positive Airway Pressure machine) which allows him to sleep, work and concentrate without being affected by the sleep apnea. A little more than two months later, his employer tells him his work performance is unacceptable and that he can accept termination or transfer to a different position resulting in a $30,000 annual salary reduction. He accepts the transfer and sues under the ADA. Employer files a Rule 12(b)(6). This is laid out in the court's ruling on the 12(b)(6) in Orne v. Mark Christie, (E.D. Va. January 7,2013). The court's decision? Motion denied. Why? The state argued that because the machine fixed the medical issue, Orne did not suffer from a disability. Hit the BUZZER now, because that is wrong. The ADA amendments clearly state that mitigating measures for a medical condition are not to be considered in determining ADA coverage. (Just when was the state's law library last updated?) Today its sleep apnea, tomorrow an enlarged prostate? You bet. It is a different world with greatly expanded ADA coverage. Stay awake!

Want to learn how to say anything to anyone? Read this book.

Have a hard conversation coming up? Need some advice? Check out a new book by Shari Harley, "How To Say Anything To Anyone: A Guide To Building Business Relationships That Really Work," published by Austin-based Green Book Press. She uses as an example the topic of discussing an employee's body odor. Trust me, it happens. First, she says the manager must introduce the conversation with a simple "John, I'd like to talk with you." Second, blast away with hand to heart empathy: "This is a little awkward...I wish I didn't have to tell you this, I'm doing this because I care about you and I want you to be successful." This strikes me as a very Buddhist approach which asks that we have the "right intention" before taking an action. Third, (she writes that this is powerful) state: "John, I've noticed that (insert conduct)." Why is that powerful? Because the statement is based on what the manager has observed (no palming it off on co-workers which can trigger an employee's defense mechanisms) and it is direct. Being direct is being kind, not stretching out the message like the drip,drip of water torture. Step four, again with empathy, is to explain how his odor is effecting his colleagues. Step five is to invite John to talk. As in, "What are your thoughts?" The next step is to make suggestions on how to fix the issue. Last, tell the employee: "Thank you for being willing to have this conversation with me."

The book is short, to the point and infused with useful techniques. Give it a read.

But-for and mixed-motive causation squaring off in U.S. Supreme Court case, Nassar v. UT Southwestern Medical Center, that was tried in Dallas

On Jan. 18, the U.S. Supreme Court granted cert in a blockbuster employment case. The issue is whether Title VII's retaliation provision and similar worded statutes “require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action).”

The case comes to SCOTUS by way of a case tried in Dallas, in which the plaintiff prevailed on the retaliation claim. The trial court gave the mixed-motive instruction, and the 5th U.S. Circuit Court of Appeals said it was right to do so. Check out the opinion, which gives these details and more: Nassar v. University of Texas Southwestern Medical Center (2012).

Why is this case a big deal? The but-for instruction is pro-employer: The judge tells the jury that a retaliatory motive must be the reason for the adverse employment action. By contrast, the mixed-motive instruction is pro-employee: The judge instructs the jury that an improper motive need be only one of multiple reasons for the adverse employment action.

I am convinced that I won a jury trial a few years ago because the judge gave a but-for instruction. Also, summary judgment or a judgment as a matter of law is much more likely if a court applies the but-for standard.

I will be blogging more on this. My prediction? I want to read the merits briefs, but I think 5-4 for mixed-motive.SCOTUS, over the last several years, has been big on protecting employees’ rights to be free of retaliation when they complain.

And, let’s face it: Most people, including judges, are wired to believe that employers smack down employees who speak up. We will see. I love this stuff.

Learn to talk to a venture capitalist

Lawyers can earn from other disciplines, so I read the February issue of Fast Company magazine with interest. This month has a section called The Art of Dialogue, which includes a piece on how venture capitalists decide which idea to pursue.

Here’s the skinny from Theresia Gouw, an investor with Accel Partners, on how to give such a pitch. First off, in addition to brevity, she wants the pitch to include how and why the idea presented itself (a personal anecdote works if it’s authentic). Second, she does not want the pitch to overwhelm her with facts and numbers. It should cut through the noise, not crank up the volume. And, third, those who use a lot of jargon will face this question: “OK, let’s pretend we can't use that word.”

The Fast Company issue also has advice on improving business banter from an improv comedy group and how to visualize a verbal exchange from Judith Donath, a fellow at Harvard University’s Berkman Center for Internet & Society, whose forthcoming book is "Signals, Truth & Design." Want to get better?  Look outside ourselves.

Integrity=trust=stronger bottom line

I am interested in many things, including the process by which we make an integrity based decision and also how children are raised. So, I read with interest David Horsager's book, “The Trust Edge: How Top Leaders Gain Faster Results, Deeper Relationships, and a Stronger Bottom Line" where he ties the two together. He writes that every decision he makes starts with this question: Am I doing the right thing? And he argues that although most people know what is right, they are often challenged on following through. He cites the Challenger disaster where the O-ring manufacturer knew there was a problem with their functionality at low temperatures but, he writes, "rather than the heat of criticism, it kept silent. Rather than recommend a delay, it agreed with the decision to launch. Standing up for what is right is not easy." But he writes that people notice those who do what is right over what is easy. This generates trust and it is trust which leads to the good stuff promised in the book's title.

Now, onto the topic raising children. The adults we become are never far removed from the children we were. He argues that when our children leave the house we should not say "be happy." If their goal is to be happy, they may act in a way that is not good. So, on the way out the door, say to them "be good." His bottom line: "Shame and guilt are not entirely bad feelings. I actually want my kids, employees, and friends to feel bad when they do something wrong. People who feel shame for cheating, guilt for lying, and sadness for saying something unkind show that they want to be good" because if they do not, then they are sociopaths and sociopaths will destroy whatever they come across.

As the line in the song by the Eagles goes, never bet on the Queen of Diamonds, she'll beat you if she is able, the Queen of Hearts is always your best bet. Solid book, give it a read.

Finding that one case

I love finding cases that stand for the small propositions that seems self-evident but for which you often need case support. The cases that can puncture the balloon of the other side's foolish argument. Here is one under the Fair Labor Standards Act. In Brown v. Scriptpro, Inc., decided on November 27, 2012, the Eight Circuit looked at the claim of an employee that he was not paid overtime for time that he worked at home. According to the opinion, the plaintiff, among other evidence, offered his and his wife's testimony that he was at home working. Presto, he says he wins. the court said, not so fast, and affirmed the lower court's summary judgment for the defendant. Generally a plaintiff's word on how much he worked is presumed accurate. But the plaintiff here had a not so small problem. He decided not to enter his time on the defendant's timekeeping system although required to do so. The plaintiff made the disingenuous argument that it was the defendant’s responsibility to keep accurate time records. True enough, but it takes two to tango. Here is what the court said:"(Plaintiff) argues that (the defendant) is responsible for keeping accurate records and the employee cannot bear the burden of proving the precise amount of overtime worked. But courts only relax the plaintiff's burden where the employer fails to keep accurate records. It is undisputed that (defendant) keeps accurate records, and employees can even access the timekeeping system from home. (Plaintiff) could have easily entered his hours; in fact, he was required to do so. Where the employee fails to notify the employer through the established overtime record-keeping system, the failure to pay overtime is not a FLSA violation (citing a Fifth Circuit case)."

That noise you hear is the hiss of the air escaping from the plaintiff's balloon.

 

 

 

Choose Wisely

You are in trial. A trial exhibit you have prepared gives the jury five choices to pick from. Where should you place the choice you want them to make? (Yes, I know five choices are at least two too many, but stay with me.) According to recent research reported in the January/February 2013 issue of the Harvard Business Review, in the middle. The column, “Defend Your Research,” looks at research done in the United Kingdom. People were shown five hospitals from which they can receive non-urgent care, along with the scores each hospital received on the performance of their staff. Incredible as it sounds, more people picked the highest scoring hospital when it was placed in the middle than when it was placed first. The article says that out of five choices, the fourth position is the optimum slot. Why? Here is the answer of the researchers:"[The] middle has something inherently attractive to the human mind. We're social creatures, and the middle seems like a good and safe place to be, compared with the edges or the top or bottom.” This middle bias shows up in multiple-choice testing, too, where test takers tend to select the middle answer. For example, D from a list of A,B,C,D, and E....The middle has higher chances of containing something good for us, so that's where we most naturally "forage" for information." The bottom line: our decisions are highly influenced by context.

Believe it or not.

 

Investing in Litigation

Quick: What's champerty? It's helping another to maintain a lawsuit in return for a financial reward. And, in many states it violates well established ethical rules. But this ancient prohibition is now colliding with a very modern value: investment firms with lots of do-re-mi, looking to make even more by investing in big stakes litigation on behalf of a plaintiff.

Let's do a quick overview courtesy of a PowerPoint from Professor Anthony J. Sebok. He notes that much of the world is fine with third-party litigation funding, including England, Australia, the European Union, and Canada, all giving it a green light. How about the U.S.A.? Well, twenty-seven States say OK to such funding, and 15 say no way. There are all sorts of issues, including preservation of the attorney-client privilege. Are the statements and documents used in the "pitch" by the plaintiff to the funders protected or not? Only three cases have looked at the question and the count so far is two (including the 2011 Eastern District Texas case Mondis Technology Ltd v. LG Electronics, Inc.) saying protected, and one saying it is not. In 2010, a district court in Delaware, in Leader Technologies, Inc. v. Facebook, rejected the plaintiff's argument that communications were covered because the plaintiff and the funders had a "common interest" in the litigation. So sorry said the district court (affirming a magistrate's ruling) because the "common interest" applied to those seeking legal advice, not commercial gain. Not so fast said the court in Devon IT Inc v. IBM Corp., a 2012 case from the Eastern District of Pennsylvania, which took an expansive view of the common interest doctrine, holding that it included a common interest in the outcome of the litigation.

The court also stressed that the plaintiff made efforts for the information not to be disclosed to anyone other than the potential investor by requiring them to sign a non-disclosure agreement. Under such "controlled conditions," the court essentially asked: What's the harm in providing privileged information to the funder? Finding none, the court told the plaintiff it did not need to fork over the privileged information.

Finally, in the Texas Mondis case, the court denied the defendant's request for production of the information provided to the funder. Using a very Texas-like concept of "what makes sense," the court held that the provided information was protected under the work-product doctrine because it was created in anticipation of a lawsuit being filed and set out the litigation strategy that the plaintiff proposed to follow. And, like the court in Devon IT, the court stressed that a non-disclosure agreement was in place and thus there was little possibility that "an adversary would come into possession of the materials." In other words, as my mother taught me, if you say something is important (here, the privileged information) then treat it as important (use means to insure that it does not get spilled to anyone else).

Litigation: it's the real growth industry.

 

Time for some words of wisdom

Here is an interesting passage in Rabbi Joseph Telushkin's book, The Book of Jewish Values: A Day-by-Day Guide to Ethical Living: “A man who has taken your time recognizes no debt, yet it is the only debt that he can never repay." In short, the Talmud considers stealing time as a sin. And, it is one of the worst ones because, as the Rabbi notes, once done it can never be remedied. I plan to keep this in mind in 2013. Not so much as a resolution for myself, as a promise to others. Arrive on time to a meeting (or as football coach Bill Parcells likes to say, "If you're on time, you’re late.") Be prepared to discuss a client's issues and thus make the most of my time with them. Strive to write clearly, so the reader knows exactly what I am saying and precisely what I want. These are worthwhile aspirations for all lawyers. Happy New Year.