Work Matters

Approach an opponent with Lao Tzu and the Navy SEALs by your side

I am reading "Tao Te Ching: An All New Translation," by William Scott Wilson. It enables Lao Tzu’s wisdom to shine through.

Passage No. 69 strikes me as being especially useful for lawyers:

“There is no greater disaster
than making light of your opponent:
Making light of your opponent almost always
results in losing your long term treasures
as easily as leaves fall from the trees."

Isn't that the truth? As lawyers, we sometimes become too confident. After we smack down a pro se litigant or overwhelm an under-resourced lawyer, we think we are so smart and invincible. But, to our chagrin, these opponents often then fight the hardest.

In contrast, sometimes we come up against a more experienced opponent, and his arrogance helps us slice, dice and deep-fry him. That’s why the wise lawyer treats all opponents as if they were Clarence Darrow.

Think respect for an opponent equals weakness? Read “Inner Excellence: Achieve Extraordinary Business Success through Mental Toughness." Jim Murphy writes that the most humble people he has ever met are the Navy SEALs. Before each mission, they look at all scenarios — not what can go right but, more importantly, what can go wrong. They do it no matter the identity of the opponent.

Being humble is not being weak. It is being smart, which is, I think, what Lao Tzu was trying to tell us.

Rudeness can thwart career ambitions

Let's talk manners. They're important to the Washington National Opera’s artistic director, Francesca Zambello, according to Sunday’s The Corner Office column in The New York Times.

What does she look for when hiring? Manners cost nothing, she says. If two candidates are similarly qualified, she selects the one who stands up when someone enters the room or who arrives early to a meeting. That reminds me of the line used by a former Cowboys coach: If you're on time for a meeting, you're late.

A friend of mine who was born and lives in Mexico tells me that manners matter a lot in Hispanic culture and that Spanish has two words to describe education: aprendiendo, meaning learning, and educado, meaning one was taught good manners. In fact, there is a specific Spanish phrase used to describe a person who has been raised without manners: falta de educación. I am fortunate to represent a company based in Central America, and I see this in my interactions with them.

C.K. Gunsalus discusses the importance of good manners in her new book, "The Young Professional’s Survival Guide: From Cab Fares to Moral Snares." She writes about driving to work to conduct some job interviews. While she was trying to park, a young man zipped into the space she was pulling into, smiled at her in triumph and made a "rude gesture" in her direction. Yes, he was a candidate to be interviewed. No, he did not get the job.

Here is Gunsalus: “Good behavior isn't just about being courteous by saying please and thank you. It is also about considering how your actions affect others. If you regularly treat all those around you, from the janitors to the top boss, with respect on a regular basis, you will develop a reputation for being a person who deserves respect as well. That could earn you a second chance after a serious mistake, let your perspective be heard when you disagree, or stimulate extra effort from a gatekeeper to solve a bureaucratic problem for you."

Good manners. They never go out of style.

5th Circuit grants en banc rehearing in sexual-stereotyping case

On March 28, the 5th U.S. Circuit Court of Appeals granted the EEOC's Petition for Rehearing En Banc in Equal Employment Opportunity Commission v. Boh Brothers Construction Co. LLC. The petition asks the en banc court to decide this issue: Does a sexual stereotyping claim exist under Title VII, and, if it does, what is the standard for establishing it?

Sexual stereotyping happens when an employee suffers an adverse employment action for failure to conform to gender norms. In other words, as the employer and society define male and female roles, the female employee is not feminine enough, or the male employee is not masculine or macho enough.

The panel decision dodged the issue of whether sexual stereotyping violates Title VII., writing that a decision on that issue could wait for another day, because there was insufficient evidence that sex played a role in any employment decision. Thus, the court reversed a big judgment awarded to the plaintiff and rendered.

On the sexual-stereotyping issue, the panel suggested that, if such a claim is viable, it rests upon whether the plaintiff objectively failed to act in conformity with the norm — as opposed to the argument the EEOC advanced in its brief, which was that what matters in "stereotyping cases" is whether the harasser subjectively perceived that the plaintiff failed to conform to a gender norm.

Now, a majority of the 5th Circuit has decided that it’s time to answer the objective v. subjective issue on gender conformity. Why? Who knows? Some members of the court could be thinking, “Let’s spike this claim now, while we have enough conservative judges on the court.” Others jurists may be thinking, “If not now, when? It’s a claim our sister circuits recognize.”

We'll see. Just know that this is a big case.

 

Language matters: Why verb choice counts in depositions

I will be teaching deposition techniques at the National Institute of Trial Advocacy in June, so I read with interest a study described in Adam Alter's new book, "Drunk Tank Pink: And Other Unexpected Forces That Shape How We Think, Feel, And Behave."

A group of subjects watched videos of car accidents, and researchers asked them to estimate how fast the cars were traveling. But the questions posed differed. Some viewers were asked how fast the cars were going when they hit one another, while others were asked how fast cars were going when they smashed, collided, bumped or contacted each other.

The results? Subjects estimated that the cars that smashed into one another were traveling at 40.6 miles per hour, those that collided at 39.3 mph, the ones that bumped at 38.1 mph, those in the hit category at a mere 34.0 mph, and those that had contact at only 31.8 mph.

But, wait, it gets worse. Some of the verbs even created a false memory. The researchers waited a week, then they asked the subjects to recall whether they had seen any broken glass after the accident. Almost all the subjects who got the “hit” language in the question recalled no broken glass. But almost 33 percent of those told the cars had “smashed” recalled seeing broken glass. Can I have an "objection, form?"

Sometimes a 'confidential' label doesn't hold up

It's not what you don't know that hurts you, but what you think is so that isn't. So, a Jan. 23, 2013, federal court opinion over the protections afforded (or not) to a Rule 408 communication was a glass of cold water tossed in my face.

It's Bourhill v. Sprint Nextel Corporation, et al. Here is the skinny from the opinion. Plaintiff's lawyer writes demand letter to defendant, laying out why its termination of his client was illegal discrimination. Letter ends with settle now or we sue. Typical stuff.

An in-house lawyer at the company responds, including the following words in bold on the subject line: “Confidential/For Settlement Purposes Only." The letter goes on to recite why there was no discrimination and sets out the company's version of the events leading to the termination. Discovery ensues, and cross motions for summary judgment are filed with the in-house lawyer's letter as an exhibit to its motion.

The company, in two thoughtful briefs, argued that the exhibit should be struck because it involved settlement negotiations protected from use as evidence by Rule 408. The plaintiff, in an equally thoughtful brief, disagreed.

The Magistrate Judge said no protection for the section of the letter explaining the reason for the termination, and the district judge agreed. Why? Well, 408 deals with actual settlement negotiations — I offer x, and you give me y — and not with an invitation to engage in settlement discussions. Here, the letter from the in-house counsel regarding the wrongful termination claim dealt only with the facts and why the company was right and the soon to be plaintiff was wrong.

Of course, this logic works the other way, where a plaintiff's lawyer sets out why her client is right and makes only an overture to settle, not a settlement offer. Many lawyers believe that anything said in a letter to opposing counsel discussing the merits of the case is protected from use. Guess not, especially in the more cut-throat litigation climate of the Northeast. Be on guard.

How to handle the dogfights in your life

In Chris Brogan's new e- book, "It's Not About the Tights: An Owner's Manual on Bravery," he talks about a concept I have read about, "The OODA Loop." It is an idea from the military and was first developed in training American fighter pilots on how to win a dogfight with an enemy aircraft.

Here is the process; Observe, Orient, Decide, Act. As a loop, it is a repetitive process. He says we should apply the loop to our lives. We see what's going on; we orient ourselves in relation to what we observe; we then decide the action to take based on the orientation; and we act on the decision.

I see this with clients. I told a client CEO that I had bad news, and that our motion to dismiss a lawsuit was denied. He said something I have never forgotten: "All news is good news, because then you know where you stand." Just like OODA: He observed a fact, he oriented himself to it in relation to what it meant to the case, and we decided what to do next and did it.

Brogan notes that it's the action part that is often the hardest, so he gives his reader this simple 1,2,3 task. (1) I accept that I am here:_______; (2) I intend to be here______; and (3) Today (not tomorrow) I'll take this action to bridge myself back on track:______.

Good advice for the dogfights in your life.

Advice from the Buddha: Look at the big picture

To be an effective counselor, lawyers must see the big picture, not just slivers of it. How do we do so? Buddhism teaches this and medicine practices it.

First, Buddhism and a thought from an interesting book, "The Monks And Me: How 40 Days at Thich Nhat Hanh's French Monastery Guided Me Home" by Mary Paterson. She writes that one lesson she learned was that to see the whole, one must surrender attachment to the sliver. She quotes Hanh: "Learning from other views, you transcend your one view. Releasing your own view will give you deep insight. You will see the totality of all views." . . . You must be able to truly let go of your particular vision."

But how? I am friends with two doctors, and sometimes run into them at a restaurant I frequent and we have a drink. They explained to me how new pathologists are trained. They make a diagnosis and explain it to a more senior physician who then asks, "Well, diagnosis X could be right, but tell me all the reasons why diagnosis Y has been ruled out as a possibility." This question forces the new doctors to re-examine their assumptions, defend their conclusions, and engage in intellectually rigorous dialogue.

Our minds naturally attach names and conclusions to events — good or bad, right or wrong. And we use these names to navigate the world. But the Buddha taught that attachment is the source of unhappiness, or, in this case, possible misdiagnosis. Friendly advice to all lawyers from the Buddha and my boon drinking companions.

Dismissiveness can be costly for an employer

Nursing a cold recently, I was trying various OTC remedies with varying results. But I was reading the advance sheets, and an interesting, multi-layered case that caught my attention was an effective tonic. It is Equal Employment Opportunity Commission v. AutoZone, Inc., decided by the 7th Circuit on Feb. 15, 2013. It's rich, like chocolate cake, but here are the key facts and issues from the opinion:

Employee works as a manager. He suffered, even before being employed by AutoZone, from a serious and chronic back condition. Part of his job includes mopping the floor. At trial, there was differening testimony on whether he was or was not excused from this task. But it was undisputed that the employee had contacted a number of AutoZone officials about being relieved of the duty as a reasonable accommodation to his back issues. Well, on Sept. 12, 2003, he injured his back while mopping; the company then sent, for the first time, a memo to the employee's manager relieving him of this duty; but it was too little, too late, with the employee never being able to return to work, being placed on involuntary leave until February 2005 when the company fired him. A jury found against AutoZone, and the magistrate  judge entered a judgment in favor of the employee for $100,000 in compensatory damages, $200,000 in punitive damages (reduced from the $500,000 found by the jury) and $115,000 in back pay. The appeals court affirmed (except on part of the injunctive relief issue). Why did it affirm on punitive damages?

Here is one reason, to quote the court:

"[AutoZone's lead disability coordinator] testified that she knew [the employee] and remembered her conversations with him. Her testimony suggested that she was dismissive of [his] requests for an accommodation, and indicated that other AutoZone employees were frustrated with [the employee] because he 'had a penchant for corresponding to various people within the AutoZone corporation and at various departments.' "

The bottom line, to quote the court: "[the employee] had contacted [the coordinator] so often that she expressed frustration with his persistence." And the cherries on top of this punitive damages sundae: the employee was physically hurt, not just economically; he testified that he continued to mop the floor because he could not afford to lose his job; and AutoZone's dismissiveness of his health concerns occurred on multiple occasions and was not an isolated incident.

There are lots of other interesting issues and I commend them for your reading. But I want to leave the reader with this thought: Sometimes managers find an employee to be irritating. "Here is Joe, once again making a complaint. Isn't he ever happy?" And often Joe is an unlikeable person and the natural human tendency is to be nice to those we like and ignore those we don't. But these all too human feelings must be set aside in administering what the law requires.

Social media and nonsolicitation agreements

Let's play claim or no claim: Can a Facebook post violate an employee's agreement not to solicit former colleagues if he leaves his employment? The answer: possibly, but not in run-of-the-mill situations. That’s according to a magistrate judge’s report and recommendation, issued Jan. 22 and adopted by the U.S. District Court for the Eastern District of Oklahoma on Feb. 12, in Pre-Paid Legal Services Inc. v. Cahill.

The magistrate judge laid out the basics of the case: The defendant went to work for the plaintiff company and became a manager. He signed a nonsolicitation clause prohibiting him from soliciting any former co-worker from leaving his or her employment and going to work with the defendant or a company for which he works. He left for Nerium, a company called that sells skin cream, and allegedly does solicit them through Facebook. His former employer sued him, seeking injunctive relief. So, what was his Facebook activity? He posted general information about his new employer on his Facebook page.

The court summed up the plaintiff's argument: The plaintiff “complains that Facebook posts that tout generally the benefits of Nerium as a product and Defendant's professional satisfaction with Nerium constitute solicitations presumably because some of Defendant's Facebook ‘friends’ are also [former colleagues of defendant] and may view Defendant's posts.”

This was a bridge too far for the court to accept. Bottom line from the court: The plaintiff was unlikely to win its argument that the Facebook postings violated the nonsolicitation clause, and there was no evidence that irreparable harm would result if the injunction didn’t issue. Note that the court said the result might differ if the defendant was posting directly on the Facebook walls of his former colleagues. Here is the bonus room: It looks as if the court reviewed all the decisions on this point (albeit only three).

A final thought: While this case is interesting, it simply applies common sense to a common situation. Lawyers shouldn’t panic simply because a case like this involves "social media." The fundamental things apply as life goes by.

Discern intent before following a mentor’s advice

Here is the one piece of advice I would want a mentee to remember always: Question authority. I know that sounds odd. After all, collective wisdom says that mentors teach and mentees learn. That's not quite right. As a dying Buddha remarked to his disciples, "My finger may point you to the moon, but do not confuse my finger with the moon."

How can a mentee discern when to question authority? Ask if the guidance springs from org-chart authority or moral authority. Determine the mentor’s intention. Is it to obtain compliance? That’s org-chart authority. Is it to develop the mentee as a lawyer, so he or she gets better — maybe even better than the teacher? That counsel comes from moral authority.

Had I listened to org-chart authority, I would not represent one of my best clients nor have edited an employment law newsletter for the last 23 years. Lawyers often elect to follow org-chart authority because we are conditioned to seek approval, to obtain validation from others, to prize acceptance as part of the group. Yes, these are all nice feelings, but as Shakespeare cautioned, "All that glistens is not gold." So, go ahead, question authority. You'll be glad you did.