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(323) 652-9451 - LAOk. Since trust and honesty go hand-in-hand, this seems pretty obvious and not such a “secret,” right? The problem is, I’m not referring in this post to the “Don’t-Commingle-Client-Funds-With-Your-Own-Money,” or “Don’t-Say-You’re-Licensed-To-Practice-Law-When-You-Were-Recently-Disbarred” brand of honesty. Anyone who is a prospective or existing client assumes you’re licensed to practice and not going to commingle funds. It’s not an opportunity to gain trust.
When I speak of honesty as an opportunity to gain trust, I’m referring to the candor that comes into play when lawyers pitch to get a client or to get a case, and the temptation arises to be overly optimistic. For example, do you ever find yourself making statements like this: “There’s a good chance we’ll win!” Or, “Don’t worry it won’t cost much.” Or, “There’s a good chance we’ll win and don’t worry it won’t cost much!”
I’ve been criticized by colleagues because I’m not much of a salesman. I try not to oversell myself as some kind of miracle-worker, and I don’t oversell a case, even if it’s a good one. After all, every piece of litigation carries risks for both sides, particularly if it’s ultimately arbitrated or tried.
I’m not much on puffing. But I do try to provide a candid assessment of the risks, strengths and weaknesses of a case. I do this at the outset. And then I try to do it as the case progresses. I like to reassess at critical junctures. A juncture can be critical because it represents a strategic turning point; more often, however, the opportunity (or obligation) to reassess arises because we are about to invest heavily in the case. These junctures are typically: (1) before filing the action, (2) before undertaking discovery, (3) before escalating discovery or initiating depositions, (4) before filing or responding to a dispositive motion, (5) before a mediation or other serious settlement negotiation, or (6) before commencing final trial preparation (when things tend to get really costly!).
I’ll admit that complete honesty about the risks of a case and/or the potential expense has led some prospective clients to look elsewhere. I have had prospective clients pass after my “pitch” wasn’t as sugar-coated as they hoped, only to have them contact me later after the lawyer they ultimately hired disappointed them. I have not, however, had a client complain at the end of a case because I didn’t make them aware of risks or candidly discuss potential costs. This is the kind of honesty I believe builds a client’s trust in his or her lawyer.
Another potentially thorny area comes when clients look to us for immediate answers. Sometimes, when an honest answer is “I don’t know,” we are tempted instead to punt. With mixed results. I prefer, and attempt to make it a practice, to be candid if I don’t immediately know the answer to a question, and promise to find out. Even if it’s a question to which I feel I should know the answer, I remind myself that we’re all only human, and a delayed but absolutely correct answer is better than a prompt, but incorrect, one.
A final thought: sometimes the challenge in being honest about the risks or expense of a case comes, not from any intend to deceive, but from a failure to be completely honest with ourselves about the “warts” of a case or what it’s going to cost. We want for the costs to be reasonable and the odds of winning to be strong. We want it so badly that we lose touch with reality. But, as counselors of law, part of what we’re hired to provide is a reasoned, objective evaluation of the merits of a position our client plans to take. We can’t do that if we’re not honest with ourselves.
I have previously written about the importance of maintaining a good rapport with courtroom staff. If you are in a California courtroom, and you notice the clerk and other staff seem less . . . er . . . satisfied with their jobs, I might have an idea why. The Daily Journal reported Wednesday that “[a]fter years of automatic pay increases for employees at courts across the state, budget cuts have stopped so-called cost-of-living adjustment pay increases at many courts. Now some court administrators are considering reducing for freezing ‘step increases’ which are part of many employees’ union contracts.” This is in contrast 3-5 percent annual cost-of-living pay increases in California’s largest courts in the years before the recession started.
I suppose in the pyramid of bad news, a salary freeze ranks below a layoff. But the courts have already been through layoffs and furloughs and, as the cost of everything from housing to cars to groceries climbs, these employees will begin feeling poorer before too long. The best of the bunch (i.e., the better educated, organized, more motivated) will likely scout out better employment. Some who are loyal to a particular judge might also stay. But a pay freeze isn’t going to make anyone happy and, as Lisa Major, Assistant General Manager of the Orange County Employees Association, pointed out, “[e]liminating step increases in general, if you’re looking at it from a human resources perspective, is never a good idea.”
Brace yourselves, California litigators, our courts are going to seem more and more like a chapter out of Kafka.
It used to be that I gave no real thought to when, in the course of a lawsuit, I would serve contention interrogatories. Sometimes, I would serve them concurrently with my client’s answer to a complaint, just to get the discovery ball rolling. But a couple of years ago a litigator whom I greatly respect gave me a tip I’ve found to be valuable, and which I’ll pass on here. In a nutshell, the idea is to hold off propounding contention interrogatories, or requests for admission with corresponding interrogatories, until after completing the opposing party’s deposition. This seems so obvious to me now that it’s hard to believe I didn’t intuitively follow the practice from the beginning.
Contention interrogatories provide an excellent roadmap to the proponents case. If I represent a plaintiff, my contention interrogatories will ask my opponent if and how they contend I will not be able to prove any essential element of my client’s case. They may also ask what evidence my opponent has to meet his/her/its burden of proving essential elements of an affirmative defense. If I represent a defendant, the interrogatories ask what facts and evidence my opponent has to prove his/her/its case (or to counter my client’s affirmative defenses). From viewing these interrogatories, my opponent should be able to get a pretty good idea where the contest(s) will be in the lawsuit.
Assuming my opponent can walk and chew gum, he or she is not going to simply tender the interrogatories to his/her client, transcribe and serve the responses. Either the attorney is going to work with his/her client to jointly draft responses, or he/she is simply going to write the responses and have the client sign a verification. Either way, the interrogatories and responses are probably the best tool available for preparing his/her client when the time comes for deposition.
This is not to say that I do not serve any discovery before the deposition. In fact, I think it’s important to serve a pretty comprehensive set of requests for production right at the outset. Ideally, I’d like to have most or all of the relevant documents in-hand and reviewed prior to the deposition. This is not always possible, but it’s a worthy goal. I also see no problem serving discovery which asks the opposing party to identify all witnesses he/she/it believes will have knowledge of relevant facts (note that I do not limit the query to persons with knowledge of facts the opposing party “may use to support its claims or defenses” a la FRCP 26(a)(1)(A)(i)–I want to cast a broader net). Unlike contention interrogatories, this discovery provides no roadmap whatsoever as to my client’s strategy in the case.
Anyway, I hope this finds readers thinking “hey, that’s a pretty good idea.”
I don’t begrudge this change in client thinking–how could I? But I do think this shift in philosophy, which is changing hiring practices, not just for AmLaw100 firms and their triple digit first year “classes,” but also small partnerships that still occasionally hired a first or second year lawyer, will impact our profession in ways for which we are not prepared.
This is because the training and experience we receive in the first years are pretty important in our development as a lawyer. Law schools do a decent job of helping us learn to think lawyers, read cases and adopt an IRAC-centric* style of analysis and writing. But, with the exception of a few “skills” classes or the optional clinic, law school does not prepare students to immediately enter the marketplace, take on clients and effectively practice law. I know there are respected bloggers who would take issue with this assertion. And I’ll admit that there is plenty of hardware, software and other “products” on the market which make it logistically much easier to open and run a law office right out of school with a cell phone and a laptop.
I’m not talking about the ability or experience conducting legal research. Most law school graduates can open the right book or access Lexis and figure out the elements of a cause of action or defense. What’s missing, I believe, is a measure of judgment that is crucially important to a law practice, but generally takes at least a couple of years of supervised training and experience to gain. I’m referring to judgment about when to take a case and when to say no. Judgment about how long to keep working a case you know is a loser, just to avoid the difficult conversation you know you need to have with that client who took a chance on you. Judgment about how to shape and deal with clients’ expectations. Judgment about how to manage a client who is persistently untruthful about the facts. Importantly, judgment about when a question or case calls for the kind of special knowledge or training that just cannot be gleaned from reading cases or a practice guide.
It could be argued that very experienced lawyers–lawyers who should know better–demonstrate terrible judgment all the time! This is true and, while unfortunate, helps ensure that legal malpractice will thrive as a practice area. But the fact that experienced lawyers make lots of mistakes in judgment does not mean that brand new lawyers who enter the marketplace armed only with a law degree and maybe some moot court experience–without at least a year or two of supervised training at a firm, a government agency or even with a more experienced solo–won’t make more mistakes, more often.
What will be the impact to our practice and profession from this training vacuum? It could be significant. For starters, inexperienced new lawyers who are hungry enough will likely take anything–literally anything–that comes in the door. Our shrinking, already overstressed courts will become a repository for even more meritless cases. I’m not talking as a defense lawyer–but as a litigator interested in reducing, or at least controlling, the growing judicial log jam. Putting my defense lawyer hat on for a moment, when manufacturers and employers are forced to defend, not borderline, but absolutely spurious cases, it negatively impacts the economy through higher prices and reduced hiring.
The real victims, though, could be clients. Clients who are misled, overencouraged, underwarned or led down the wrong path. Clients who, had they visited a different lawyer, would have been told early on they have no case or needed to consult with an eminent domain (or tax, or probate) specialist. Or at least told that the odds of winning don’t look too good.
Enough. I tend to dislike writers who do nothing but diagnose a problem. A proposal for a solution, even something half-baked, is the least a writer should do.
Here, I put the responsiblity for filling this void of practical training back onto law schools and bar associations. As I’ve said before, law schools should, in exchange for the privilege of collecting tuition, strive to do a better job of enabling their graduates to join the legal marketplace upon graduation. If paid, new lawyer apprenticeships are no longer the norm in the legal marketplace, law schools need to pick up the slack. If economics dictate that tuition needs to increase to make this additional training possible, so be it.
Local, county, state and national bar associations should also help fill the void. There is no shortage of continuing legal education programs, at least in those states which require it. But as these tend to be lecture format, they are not interactive and probably ineffective as a training tool for brand new lawyers. I’m thinking more along the lines of the type of clinics, internships and externships that are typically only available to law school students. Perhaps these programs could be coordinated with pro bono opportunities. I’m just thinking out loud . . .
I’ve always felt fortunate that, although I didn’t earn an AmLaw100 salary right out of school, I did have an opportunity to work with and learn from some really great lawyers. It’s interesting, but also scary, to think about some of the mistakes I could have made if I had not received that early training. Not just sloppy lawyering or calendaring mistakes, but errors in judgment. I think it’s something everyone in the profession needs to consider, as the path from law school into the legal marketplace changes.
*IRAC = Issue, Rule, Analysis & Conclusion (but you know that already).
I’ve been really fortunate over the years to get the opportunity to observe first-hand how focus groups and mock trials can help trial lawyers refine their strategy and presentation of cases. They can also be useful in trying to estimate a potential adverse verdict range. I say “fortunate” because the expense of these exercises generally renders them impractical to all but large institutional clients. It was only because my firm represented such clients that I was able to get this first-hand experience.
Because I believe mock trials and focus group research are invaluable tools for any lawyer facing an upcoming trial or trying to understand how a real jury will value a case, I don’t think these exercises should only be available to huge businesses with deep pockets. Instead, I believe there are far less costly alternatives to retaining a first class jury research firm which can produce results that are equally useful.
The first step is to figure out what you’re looking to get out of the exercise and how much you can reasonably spend. I’m most familiar with the mock trial exercise, so we’ll use that format. This requires, at a minimum, a suitable space and mock jurors. “Suitable” space means a space that is sufficient to accommodate your jurors for presentation and deliberation purposes. If, as I suggest, you simultaneously use two separate mock jury “panels,” it is helpful to have an additional room for the second panel to separately deliberate. Suitable also means private. While I always conceal the true identities of the parties, the case presentation, deliberations or post-trial mock juror “download” session should never be held in a public place. Confidentiality issues aside (you don’t want your opposition to know you did this research), the environment should be as free as possible from unnecessary distractions.
Mock jurors–where to find them? If you contact a jury research firm they will swear up and down that the exercise cannot be done without careful efforts to proximate the expected composition of your jury. This may be sound reasoning, but it is unrealistic if you are trying to do the exercise on the cheap. I’ve participated in several mock trials where we worked instead with a staffing agency to compose the mock jury with folks that approximated, as best as we could, what we thought the jury would look like. Be prepared, not only to compensate the mock jurors for their time, but also to provide parking. Thought should be given to providing food, assuming the exercise is going to last more than 3 hours. It may seem cheaper to release the jurors to eat somewhere else, but valuable (i.e., expensive) time will be lost waiting for one or two stragglers to return from lunch.
If your budget just will not accommodate paying a staffing firm, you’re still not precluded from doing the exercise. However, you still must find jurors from somewhere, which means employees, family and friends. This might mean biases will come into play. While unavoidable, this biases must be “factored into” the results of the research.
If the budget makes it possible, I highly recommend involving a jury consultant. While some research can be done without one, it will be far less focused and productive. The jury consultant will provide input on hiring the mock jury pool, draft appropriate questionnaires, frame the analysis, conduct the session(s) and oversee both the deliberations and post-trial debriefing. Crucially, a good jury consultant will help synthesize the information gleaned from the exercise. After all, jury research is most valuable if the data gathered is distilled into a set of useful conclusions.
To provide a concrete example of how this might work, my last mock trial lasted one full day. The mock jurors, hired through a local staffing service, arrived at our offices at about 10:00 a.m. They were given a questionnaire not dissimilar from the type of questions a real jury might be asked in voir dire. My colleague then presented an abbreviated plaintiff’s opening statement and I presented the defendant’s statement. Another round of questionnaires followed, asking the mock jurors their initial impressions after hearing what the lawyers “expected to show.” Each side then presented about one-half hour of “evidence.” This was obviously highly abbreviated, but it included snippets of videotaped deposition testimony, readings from important documents, as well as other demonstrative evidence. Some evidence was presented simply as “facts to be assumed.” Another round of questionnaires followed, the jury deliberated for one hour and then we held a debriefing session. Somewhere in there we excused the mock jurors for a brief lunch break.
Most interesting and informative was the post-trial debriefing session. Certain important facts had been purposely withheld from presentation during the mock trial. These were then revealed incrementally. This allowed us to understand how a particular good or bad fact might impact the jurors’ deliberations. We made major shifts in our theme and presentation at the actual trial (which we won!) based solely on the feedback we received during the debriefing.
There are countless variations on this approach. You can eschew the evidence presentation and simply read facts the jurors should assume. You can present a live, abbreviated examination of one or more witnesses, to see how they will likely be received. There are situations in which both parties to a dispute conduct a mock trial as an ADR method to aid in settlement negotiations. The point is that a party is not precluded from doing meaningful pretrial jury research simply because he/she/it cannot afford to spend tens (or hundreds) of thousands of dollars for the exercise. In fact, here’s a secret: I have it on excellent authority that some of the best trial firms in the country always do pretrial jury research and often do it on the cheap, regardless of the client’s wealth.
Certainly the biggest challenge for me, as an outside or, if you prefer, “outhouse,” lawyer representing private clients is keeping up my client development efforts, even when I’m absolutely slammed in the actual practice of law. I know I’m not alone and this challenge is hard for just about everybody on the outside.
I sometimes envy people with client-development or sales-type jobs that allow (or force) them to focus exclusively on selling. Unlike a pharmaceutical representative or residential realtor, lawyers have to constantly balance the substantive side of the job (conducting discovery, writing and arguing motions, preparing for trial) with the sales side (writing, speaking, meeting, etc.). When push comes to shove, at least for me, the sales side usually takes a back seat to the demands of the practice. This isn’t surprising: clients hire trial lawyers to litigate cases, not to spend their time finding new clients and more cases. Also, lawyers aren’t typically sued for malpractice for neglecting their marketing responsibilities and focusing instead on winning the case. On the other hand, without a pipeline of new work, we find ourselves languishing, dead in the water, when a busy case resolves.
In a perfect world, I would use others to appropriately leverage both sides of my job. I would have associates and paralegals available to leverage for performing practice-related tasks they are equally, if not better, suited to do. But then I would also have someone, even a part-time employee who could help make sure I keep up with my marketing and networking responsibilities, scheduling meetings, arranging for articles and speaking opportunities.
Alas, it’s not a perfect world, yet. Until then, I’ve got to keep struggling not to neglect my marketing efforts when, as in the past few weeks, I’ve been extremely busy with a particular case. I recently spoke with my business development coach about this challenge. His suggestion, loosely paraphrased, was that I shift my orientation away from being a legal “practitioner” to being a legal “business developer.” I should understand as my primary job, not to win cases or achieve favorable settlements, but rather to generate more business. I’m not sure I understand or completely agree with this view. But thinking about the issue has helped me develop some simple strategies designed to help me maintain the law practice/business development balance, even when things get hectic. Here they are:
1. Schedule, schedule, schedule. Like many litigators, I live my life out of a calendar. I’ve found that, provided I get a coffee, lunch or dinner date on my calendar, I have little trouble scheduling around this appointment. The takeaway: get something on the calendar, even if it has to be rescheduled later.
2. Combine case-related travel with visits to existing or prospective clients. The most successful practitioners I’ve known make it a habit to visit existing and prospective clients face-to-face whenever they are “in town” for another reason.
3. Calendar follow-up steps. For every 5 appointments I schedule for coffee or lunch, at least 3 cancel or reschedule. I have a bad habit when someone cancels at the last-minute of failing to follow through immediately to get a new date on calendar. The result is a long, long delay and starting from scratch on the rescheduling. I’m trying now to follow-up right away when someone cancels to get a new appoint on our calendars, even if that, too, eventually must be rescheduled. Ideally, no meeting will be left behind.
4. Do business development before anything else. This is one my biz dev coach really likes. He suggests I spend between 5 and 30 minutes each morning on client development before doing anything case-related. I’ve tried to adopt this, but it’s challenging given the unpredictability of a litigation practice.
Hopefully, these 4 strategies will help me stay out of my shell and not find myself dead in the water whenever a particularly time-consuming case resolves.
Bloomberg TV interviewed Vel Hogan, the foreperson of the jury in the recent Apple v. Microsoft patent trial, which returned a $1 billion verdict in Apple’s favor. Undoubtedly future jury consultants will anchor entire PhD theses on this trial. I don’t pretend to have the education and experience to do any kind of in-depth analysis. But a few interesting points can be quickly gleaned from the interview.
Takeaway Number 1: Vel is smart. But not just intelligent or wise. He possesses the kind of intelligence, training and knowledge necessary to grasp much, if not all, of the technically sophisticated evidence presented during a patent trial. According to my crack internet research, Hogan is VP of Engineering for Multicast Laboratories. He holds patents and has been a member of the Silicon Valley tech community for over 30 years. I would think most patent lawyers would be heartened to know jurors of Vel’s intellect are out there, available to be impaneled (particularly if your trial is conducted in a venue rife with tech engineers). He said in the interview that the jurors were “inundated” with evidence. Someone less intelligent or uninterested in technology could easily have been overwhelmed by the evidence and, rather than considering and re-considering the evidence–a great deal of which was highly technical — reached a verdict instead based the cut of John Quinn’s suits or because they like Apple’s TV commercials.
On the other hand, for the reason I am about to discuss (in Takeaway Number 2), many trial lawyers might be fearful of a juror of Vel’s intellect in this kind of case. Purely from the interview, it does not appear Vel had any bias going into the trial or deliberations. He owns no Apple products; his wife has a Samsung phone, but it’s not a smart phone. If he had any bias that he concealed during voir dire, but that he brought into the jury room, it could have been a problem. Why?
Takeaway Number 2: Vel served as a torch-bearing guide to most of the other jurors. I speculate that it took the other jurors no time at all to select Val as their foreperson. They knew from voir dire that he was a techie. They probably paid attention to his expressions and slightest comments throughout the trial. If/when he took notes, they either wrote notes themselves or wondered what they had missed that was so important. He said in the interview that they started deliberations with a question and answer session, trying to clear up confusion some of the jurors had about certain issues. Vel was thus their teacher, and their trusted guide in a way that none of the lawyers or witnesses could have been. I suspect this was particularly true because I read about (and Vel Hogan alluded to) Judge Koh’s frustrations with the lawyers for both sides throughout the trial. The judge’s scoldings likely eroded the jurors’ confidence in the lawyers to guide them through the trial. Thus, as a knowledgeable, likeable, apparently objective teacher and guide, Vel Hogan’s ability to influence the outcome of the trial was enormous.
Takeaway Number 3: Vel took the legal questions home with him and continued to deliberate. He alluded during the interview to an “Aha” moment he had one night during the deliberations. Before that, at the outset of the deliberations, he thought the verdict would likely be in Samsung’s favor. But there was a single point that he struggled with (whether the No. 460 patent was invalidated by prior art). He said that, after he internally resolved that struggle and decided he could defend the patent if it had been his own, much of the remainder of the deliberations went smoothly. I speculate (with extra emphasis on that word) that the deliberations thereafter went smoothly because Vel, as the torch-bearing guide and teacher, had made his decision. All that remained was for Vel to explain his own reasoning to the others.
Takeaway Number 4; The jurors worked in a systematic fashion to reach their conclusions. Several comments during the interview suggested that the deliberations were indeed deliberate. They addressed the “simplest things first.” If they hit a bump in the road, it would not derail their progress. Rather, they suspended judgment on that point and moved on, with the plan to re-address the bump in the road informed by the outcome of their other deliberations. In this way, they navigated their way (with their torch-bearing guide) through a veritable morass of evidence and instructions.
The interview is worth watching. If I’ve mis-paraphrased Vel’s comments, please let me know. I struggled with embedding the code, so the best I can offer is a link: https://bloom.bg/OkRkhk.
I have a friend who is a BSD in the venture capital world. I reached out to him a while back because I had read that one of the companies his firm was funding was about to undergo a significant expansion. I asked my friend if he wouldn’t mind introducing me to the company’s general counsel, so I could get my foot in the door in helping the company establish a solid platform for management of employment issues which were bound to arise, given their imminent hiring.
To my surprise, my friend rebuffed me. “To tell you the truth,” he said, “it’s really not something that’s on their radar at this point.” I let it pass–there might have been a variety of reasons he didn’t want to make the introduction. But, suppose he was telling me the truth, that he thought the general counsel of this emerging tech start-up really didn’t need to be thinking about who to use to prevent and, if necessary, deal with employee “issues.”
If he was telling the truth, I think he was mistaken. This is particularly true given that the company was domiciled in California, unquestionably the most hostile legal environment in the world for employers.
Granted, I don’t think selecting employment counsel is on par with raising funds or gaining market share. If the company fails, there won’t be employees to make claims or file lawsuits. On the other hand, meeting and potentially retaining a legal expert to review the company’s policies, draft or revise a handbook and perhaps conduct some training is neither time-consuming nor rocket science. It is certainly not expensive. Particularly if the ounce of prevention establishes, at the company’s early stages, a solid foundation which prevents even one otherwise avoidable employment lawsuit.
I have seen up close organizations that started and grew without a solid, systematic adherence to employment laws. In each instance, I’ve become involved only after the company has been sued and we are trying to frame a defense. At that point, the company’s management invariably recognizes its shortcomings and vows to do better going forward. Unfortunately, this only happens after the company is forced to spend tens of thousands (or more) in settlement and defense costs.
It is not unusual for small employers to look to their “business” counsel for guidance on complying with employment issues. This is the lawyer that drafted their articles of incorporation or negotiated a lease. However, it is more common for this to occur only after there has been a claim or suit. Before that time, my friend is right, it’s literally “not on their radar.”
I’m partial to the idea of working with a lawyer that concentrates his or her practice on employment defense, rather than a business generalist. There are lawyers who do nothing but employment advice and counseling, which is who I–a litigator–will look to if I’m confronted with a particularly unusual question. The problem for the commercial lawyer in advising on employment issues is the rapidly changing nature of employment laws. An additional problem arises when the claim goes further, and ripens into an administrative complaint with the Equal Employment Opportunity Commission (EEOC), California’s Department of Fair Employment and Housing (DFEH) or similar agency, or if there is a civil lawsuit filed. While the company’s business lawyer might be a wizard at negotiating a complex lease, he or she might struggle when conducting a deposition, drafting a solid motion for summary judgment or representing the company in front of a jury.
I have all the respect in the world for entrepreneurs. And I expect there are a thousand and one issues and headaches to successfully navigate without having another lawyer stick his or her nose into how the company runs its business. But the last survey I saw said that the average verdict or award in employment lawsuits where the employer lost was over $400,000 (and this was a few years ago). I’d argue that it’s never too early to put retaining an employment lawyer “on the radar.”
Not everyone is cut out to play the boss. While I suspect there are a few sadists who actually enjoy the act of firing an employee, most people hate delivering bad news and learning you’re now jobless usually ranks near the top of the bad news heap.
From the point of view of a lawyer who represents employers in lawsuits, however, I view the process of termination to be extremely important. It can be tempting, when one is forced to deliver the news, to sugarcoat. Most sugar-coating doesn’t really make anyone feel better. For example, “you’ll always be part of the family,” or “you’ll thank me someday for this chance at a fresh start,” might have worked for George Clooney in “Up In The Air,” but it’s a pretty stupid thing to say in the real world.
One brand of sugar-coating that can be really dangerous concerns mischaracterizing a termination for poor work performance as something other than what it is. In particular, suggesting a sub-par employee is being “laid off” creates substantial risk. If the “redundant” employee is replaced anytime in the near future, it sets the stage for him or her to argue, in a subsequent discrimination lawsuit, that the lack of work was merely a pretext. That the actual goal was to eliminate the employee on the basis of some protected characteristic (i.e., race, gender, disability, religion). This kind of evidence plays well at trial: like all of us, jurors love to hear about conspiracies and cover-ups.
One way for employers to make the act of termination less of a surprise–and therefore less painful for everyone involved–is to make termination the final step in a progressive discipline policy. Implementing such a policy starts with a frank discussion with the underperforming employee that is documented by a dated, written record of the discussion. This type of discussion does not even need to be characterized as discipline, but rather a coaching tool.
If verbal discussions (documented) do not improve performance, the next step should be a written notice that describes the problem, proposes a solution and is provided to the employee concurrently with the verbal discussion. The employee should be asked to sign this document, and perhaps there will be a space dedicated for any response the employee might have. lf the problem persists, the possibility of one or more additional written notices/warnings can be provided, but the message communicated should be that, after a defined number of written notices/warnings, termination will result.
A progressive, documented discipline policy serves two really important purposes. For me–your lawyer–it is important evidence if a wrongful termination or other lawsuit results from the employment relationship or termination. Perhaps more importantly, though, it gives the employee every chance to succeed.
I recently defended a fairly contentious deposition. To my surprise, my witness complained to me during a private meeting halfway through the deposition, “I wish you’d really give it to him. If I was a lawyer, I’d never let him (opposing counsel) get away with that.”
I was frankly surprised. While I wasn’t obstreperous, I hadn’t been a shrinking violet, either. The examining counsel had asked mostly crappy questions and my witness had been really well prepared (in my not-so-humble opinion) over the better part of two full days. I thought the deposition was going swimmingly.
I sensed that the problem, from my witness’ perspective, was that she was wounded by the way the examiner was treating her and bitter that certain facts she viewed as private (family status, country of origin, etc.) were being dragged out of her in what appeared to be a harsh, public way. She’d never been deposed before, and wasn’t used to how lawyers routinely twist and torture the meaning of a witness’ testimony. I realized it wasn’t that she felt that I wasn’t doing a technically capable job, but more that she expected any lawyer on her side to exact a pound of flesh from the examiner. After all, what else was I there for? She wanted John Wayne with a briefcase.
I told her, “I actually think you’d find it harder to concentrate, understand the questions and answer if I had really mixed it up with him.” This is based on experience. In the past, when I’ve encountered a real asshole examining my witness, or when I’ve been flabbergasted by a particularly egregious line of questions, or just had too much caffeine, I’ve turned into a real jerk. (Turns out I can portray a pretty good jerk–who knew?) I’ve always reflected afterward that, while I might have dished out some really cutting barbs, had I been a good advocate?
I certainly hadn’t improved the record. (In fact, I’ve worried after particularly hot tirades about the possibility my Mamet-esque monologue might find its way into an exhibit read by the judge.) Worse, though, I’d always felt afterwards that the additional tension caused by our dust-up exacted a psychological toll on the witness. Sure, there are people used to concentrating and communicating in abusive environments. But I’m sure the abusive environment rarely made them concentrate or communicate better than they would if those around them treated each other with respect.
At the end of the day, as I explained to my witness, what matters most is the transcript–the written record. (Unless the deposition is videotaped.) Whether I verbally punish the examining lawyer, or even make it more difficult for him to do his/her job, it’s unlikely to improve my client’s chances of prevailing, particularly if I engage counsel in a vitriolic exchange which makes it hard for anyone to think. The best revenge, I told my witness, is to win the case!
