EFFECTIVE CLIENT COMMUNICATION AND MAKING HARD DECISIONS ... · effective client communication and making hard decisions: the 25 keys to integrity based decisions michael p. maslanka

EFFECTIVE CLIENT COMMUNICATION AND MAKING HARD DECISIONS:

THE 25 KEYS TO INTEGRITY BASED DECISIONS

MICHAEL P. MASLANKA Managing Partner, Ford & Harrison LLP Author, Texas Employment Law Letter

Columnist, Work Matters for Texas Lawyer

Ford & Harrison LLP 1601 Elm Street, Suite 4450

Dallas, Texas 75201 [email protected]

(214) 254-4700

State Bar of Texas BEST OF 2009

Dallas - November 12-13, 2009 Houston – November 19-20, 2009

Austin – December 3-4, 2009

CHAPTER 9

MICHAEL P. MASLANKA

Michael P. Maslanka is the author of the Texas Employment Law Letter, a monthly newsletter subscribed to by3,000 employers across Texas. He works with employers to keep them out of trouble by teaching them how tomanage the situation, not have the situation manage them, just like in his newsletter. He also writes a monthlycolumn for Texas Lawyer called Work Matters. He can be reached at his firm, Ford & Harrison LLP, 1601 ElmStreet, Suite 4450, Dallas, Texas 75201, where he is Managing Partner of the Dallas Office.

Effective Client Communication Chapter 2

I. INTRODUCTION ,,," ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,"""'''''''''''''''''''''''''''''''''' "'''' 1

A. Rule 1: Lawyers Are Advisors, Not Consultants""""""""""""",."""""""""""."""""""""""""" ". IB, Rule 2: The difference between the right word and the almost right word is the difference between a

lightning bolt and a lightning bug. '''''' """""""". ",,", "". """.""", "" "" """"""". """" "","" "., "" ",,",", 1C, Rule 3: Ambiguity and Anger Are Your Friends""".""""""""""""."""""""""".""""".""".".".""". 3

1. Ambiguity """".""""""" """" """"""""" """ """""" "" "". "". "" "" "., ""."",,,, ".",. "". "'" .". ".", 32, Anger ,.. , ,.. " ", " .. ,.,."",." .. ". '" " .. , , ' , , , , " .. , , '.. " ., " ., .. '".,. 33, Presume Positive Intent. "." """"" ". ". ". ". "" "'" "". ". "." "". "." ""'" ,,".' ".',. ",",' ". ""."""", ".,." ". 4

D, Rule 4: Make EveI)' Conversation a Learning Conversation."""".""."""".""."".""."""".""."""""." 4E. Rule 5: When Asked a Question, Answer It.""".""."""""".""."."""".".""""""""""""""""""""". 5F. Rule 6: Have a POV-It's Your Job "".""""""."".""".""""""""""".""""""."""""", ""."". " """. ,,5G, Rule 7: For Goodness' Sake, Shut Up! ".""""""""""""""""""""."""""."""""""".""""".""."""" 6H. Rule 8: Know Your Client """""""""""""''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''""".""" 6I. Rule 9: Know Yourself""""" """""."""""" ". "."""., ,,",," ,," ,," ""., """"" "" ". """ "" """'''' ".. "'"'' ".7J. Rule 10: Know Your Client; Know Yourself; Apply What You Know"""."".""""""""."""""""""" 8K, Rule 11: Optimism Goes a Long Way"."."""...""""""."""""""""""""".""".""".""""."".""."."".91. Rule 12: Remember The Client's Contex!..".. """,,"",," ". """""""""""""'''''''''''' ."" """"""", "",,'. I 0

M. Rule 13: EveI)' Problem is an Opportunity""""""""""""""""""".""."."""""""""."""""""""""" 10N, Rule 14: Respect Your Client's Opinion""""""""".""".""""""""""""."."""""."""""""".""""." I I0, Rule 15: Don't Forget: We have an Ethical Responsibility in Tennination Decisions ""."".""""""""". 1JP. Rule 16: Don't Forget: There are Cultural and Sexual Differences in Communication"""""."""""."". 11Q. Rule 17: The Client Makes Business Decisions, Not You """".""""""""".. "."""""".""""""""".", IIR Rule 18: Don't Forget the Art of Decision Making"""""".""""."""""".""""".".""""".""""""."" 12S. Rule No. 19: Manage Expectations""""""""""""""""."".""".""""""""""""".""""".""""."""" 12T. Rule 20: Be Autllentic ".,,, "",,''', "., ""." """" ". "" ". "". """" ""., "." "." """. "".,,,,,, "",. ".,,, ",,"" ".. "" 12U. Conclusion , ', , , , ", " ,,,, , ,.", .. ,." , , , ,., .. "", ' 12


mmcdonald

Typewritten Text

Effective Client Communication

EFFECTIVE CLIENT COMMUNICATION

Chapter 29

I. INTRODUCTIONI practice employment law. There are, of course, several other specialties, as well as numerous generalists. But

whatever our practice area, we all share one constant: the need to effectively communicate with our clients.The ability to do so - what 1 like to call a lawyer's "bedside manner" - is not something taught in law school, and

is often hard to pick up in the day·to·day bustle of practice, As with many things, it is easier to describe the problemthan to provide a solution,

So, 1 have put together the following rules to help lawyers, not so much with their "IQ" as with their "EQ", theiremotional quotient - which is nothing more than an ability to understand a clients' problems, empathize with them,provide options, give bad news, and still retain their trust and respecl. The math is simple: lawyers with a developedsense of "EQ" are less likely to have disgruntled clients, less prone to grievances, and feel more satisfied with thepractice oflaw.

The essence of good lawyering is good communication; we communicate the risks and rewards to clients of acourse of action, our clients version of events to the fact finder, the law to the court, and ti,e final decisioll - good orbad - back to our clients. We dOll 't just act as conduits. How we communicate - persuasively or not, confidently ornot, and positively or not - deteonines how effeotive we are as lawyers, In short, better communicators get be«erresults.

A. Rule I: Lawyers Are Advisors, Not ConsultantsA la wyer is an advisor, not a consullanl. Some wag once defmed a consultant as "someone who knows 10,000

pick·up lines but has never had a date." That's true. Technical expertise is simply not enough to be a good advlsora lawyer must, unlike a consultant, bridge the world of theory and apply it in developing concrete solutions for a client,This is a Hhome base" rule: when in doubt, rely upon it in all client communications. As Shakespeare notes inMeasure/or Measure, "Good counselors lack no clients."

B. Rule 2: The difference between the right word and the almost right word is the difference between alightning bolt and a lightning bug.This quote from Mark Twain says it all. A slight shift in emphasis in communicating a difficult issue to a clle nt

can make all the difference between the client accepting or rejecting the counsel being given. Clients are willing toaccept bad news if It Is presented In a way that is palpable, understandable, and confirms the lawyer is a friend andnot an enemy. This mises in a vmiety of problem situations which are diagramed below:

Problem

Describingdifficulties withthe case !Iii

1.:::}:?,\.",::A.Il

Example

(I) Let the client know you are on the same side, For instance, use a wordlike "challenge," not "problem," (2) Here's another illustration: "The litigationrisk with this type of case - and quite frankly, our great frustration withthese cases - is tlmt a jury can second-guess the employer's motivation, andif the jury determines that the [protected class] was a factor In the decisionfor termination, then the jury may award damages that exceed any logical orrational basis.H



Telling the clientan expected badresult

CEO is aterrible witness

Clierit who says"I wasn'tthinking of his[sex] [race][age] when Ifired him andti,e plaintiff isfocusing in ontrivia,lIReluctant tosenle

Client jumps toconclusions

The messengergets blamed

'.,{.:.~.i.lj.~.o.•O.:.b';"'...rr.:.i.~.:'i:r':~t:.~l< .:,:, ••:;:.::'

(I) "While we relish the opportunity to tJy a holly contested case (positive),we are also acutely aware of the dangers inherent in a jury tria I (negative);(2) "While we acknowledge the many arguments in our favor, we still facesome indisputable and troubling facts"; (3) "When the facts are viewedthrough this legal filler. .." (4) "We acknowledge that the jury willundoubtedly be composed of the peers of the plaintiff." (5) "As difficull as itis for me to say and you to contemplate..."

"Many of tile qualities which make Sue such a dynamic CEO may,however, make her come across (0 the jury as <pinionated and rigid, whenin fact she is decisive and self·assured. 1I

Use OJ. Simpson trial: "A typical plaintiff's tactic is, in fact, to focus ajury's attention on what we would consider irrelevant issues. This approachis not unlike the OJ. case, where his lawyers convinced the jury to ignorethe blood the police found on the driveway and, hstead, to focus on theminutiae of how it was collected and maintained."

UWe have a window of opportunity to resolve the case ... 11; IIWe will notknow how serious the plaintiff is on his offer, unless we test the waters...";"of course, if ti,e plaintiff continues to insist on an wrrealistically highsettlement demand, then the decision on whether to senle is essentiallymade for us...n

Try phrases like: "there is a good reason for the hearsay rule ... " or "let's becareful about playing doctor" (a useful phrase in personal injury or disabilitydiscrimination cases or "the la er in me..."Try this: "While we hotly contest it, we know that the plaintiff will argue...";"We can reasonably anticipate that the Plaintiff..."; Also using a greaseboard or video deposition clips to deliver the news will focus the client'sattention on the message, rather than the messenger

Remember: How you say something is just as important as what you say. Because it is, remember the following:

AvoidYou based conversationsShifting responsibility for communicating

• Meta TalkRather

• Somewhat• It would seem

The truth is thatAs a matter of factAre of the opinion thatFor the purpose of

2



Embrace• ClarifYing

Acknowledging• NonnaliziJlg• Empathizing• Summarizing

Responding

Chapter 29

C. Rule 3: Ambiguity and Anger Arc Your FriendsDon't be afraid of anger and ambiguity in dealing with your clients. They are your friends; not you're enemies.

Everything a client tells us - and just as importantly, doesn't tell - and the order in which he or she tells it, revealssomething. The client may tell you that her factory makes J0,000 widgets a day. There is an emotion attached to thatfact, whether pride, or shame, or something else. Find it.

1. AmbiguityAmbigUity is an opportunity to fwd out what's really happening. Let's say you arc meeting with a client, you

offer a solution, and the client say, "I'm not sure that's going to work." A defensive "Why not?" is a sure way to enda fruitful dialogue. Instead, take ambiguity as an invitation to probe - ask where the client sees some concerns andask that he or she tells you more.

A corollary to tllis rule brings out another facet of human nature, namely, talIJng in conclusions. We don't evenrcalize we do it, because conclusions are a convenient shorthand. But as a lawyer, don't assume tI,at you understandanother's shorthand or that they wlderstand yours. Rather, lawyers must decipher imprecise words or concepts.Here are some methods to use:

When a client says that "X is the case," try a simple "What do you mean by X?"Why do you say <IX is the case"?Why do you believe"X is the case"? Is it because or "A" or because ofUB"?Or ask for an example of what they're tallJng about.

2. AngerAnger is a more difficult matter to handle, but it can be done. First, you need to remember that the case is not

only about the case. It is also about something much more, especially in employment law. The psychologist Dr.Abraham Maslow described a person's hierarchy of needs. Clients have them too. They need to be acknowledged,emotionally heard (that is empathized with) and respected. Visualize the hierarchy as a triangle with these needs ofthe apex. Starting and ending with the technical solutions, which fonns the triangle base, without considering the apexneeds can be disastrous.

For instance, let's look at a meeting we had with a CEO of a new client. At the outset he said "All lawyers areleeches, interested only in padding their pockets, and you guys are not much better than the suing employee trying toshake me down." Our reaction? Rather than getting defensive or arguing with him, we acknowledged his feelings.He was heard, and empathized willl, and the meeting, once we got down to the technical issues, went well.

Here are two other thoughts to keep in mind;

When upset clients needs to be calmed, a glad rule of thumb, is "nionkey see, monkey do." Calmlyreflecting back to the client what he is saying "what I hear you sayings is [x y z]. Are we right or is theresomething we are missing?" is an effective approach. Again, it acknowledges the client's concerns andopens the dialogue.Just because a client isn't hollering, doesn't mean he or she is not emotional. There was one client wespent a long time developing three options on an employment tennination issue. We favored the least risky,and the client seemed to agree. While going over the details, however, he leaned back, crossed his anns,and looked quizzical. Swallowing our pride and talJng a chance, we asked, "even though you tell us you aresatisfied with this solution, we are getting the feeling that you are not quite sold on it. Are we off base?"This gave the client pennission to open up, he told us he wasn't happy with the solution, why, and wechanged course. He was respected.

3



3. Presume Positive IntentNo one likes to be critic ized, and when that criticism is coupled with anger, it's an unpleasant experience. The

most important rule to remember is this: Presume Positive Iment. Here are some ways to do it: If SOmeone angJilytells you after a meeting that they couldn't believe you said "x y z" in the meeting, your response is: "I could see howyou may have misunderstood what I said. Let me try it again or differently." That wkes the wind right out of theirsails. So, as hard as it is to do, think ti,e following to yourself:

Even if we disagree, he is doing what he thinks is righ!.Even is she is wrong, she is motivated by the same things I am, which is to win the case.Her intentions are as valid as mine, even though we disagree.

However, there will be times when things go wrong in a case, and there will be a time when it is your fault. Therewill be times when it is not.

Here are two approaches.

Approach 1:AgreeApologizeAct

Approach 2:Appreciate

• AcknowledgeAssist

D. Rule 4: Make Every Conversation a Learning ConversationEach ofti,e conversations on the left violates our fundamental home base rule-namely the conversation focuses

on the lawyer, not ti,e client. It makes it about you, not tllem. This is your ultimate wke home poin!. As we'll see,these models (taken from Difficult Conversations by Douglas Stone) will come back and help in other Rules.

A Battle of Messaees A Learnine ConversationThe "What Assumption: I know an I need to know Assumption: Each of us is bringing differentHappened?" to understand what happened. information and perceptions to tl,e wble;Conversation there are likely to be important things that

each of us doesn't know.Challenge: Thesituation is more Goal: Explore each other's stories; how wecomplex than either understand the situation and why.person can see. Goal: Persuade them I'm right.

Assumption: r know what they intended. Assumption: I know what I intended, andthe impact their actions had on me. I don'tand can't know what's in their head.

Goal: Share the innpact on me, and fmd outGoal: Let them know what they did was what they were thinking. Also ftnd out whatwrong. innpact I'm having on tl,em.

The "What Assumption: It's all their fault. (Or it's Assumption: We have probably bothHappened?" all my faul!.) contributed to this mess.Conversation(continued) Goal: Understand the contribution system:

Goal: Get them to admit blame and take how our actions interact to produce thisresponsibility for making amends. result.

4


Effective Client Commnnication Chapter 29

A Battle ofMessa"es A Learnin" ConversationThe Feelings Assumption: Feelings are irrelevant and Assumption: Feelings are the heart of theConversation wouldn't be helpful to share. (Or, my situation. Feelings are usually complex. I

feelings are their faull and they need to may have to dig a bit to understand myChallenge: The hear about them.) feelings.situation is emotionallycharged.

Goal: Address feelings (mine and theirs)Goal: Avoid talking about feelings. (Or, without judgments Or attributions.leCem have it!) Acknowledge feelings before problem-

solving.The Identity Assumption: I'm competent or Assumption: There may be a lot at stakeConversation incompetent, good or bad, lovable or psychologically for both of us. Each of us is

unlovable. There is no in -between. complex, neither of us is perfect.Challenge: Thesituation threatens our Goal: Understand the identity issues on theidentity. line for each of us. Build a more complex

Goal: Protect my ali-or-nothing self- self-image to maintain my balance better.image.

E. Rule 5: When Asked a Question, Answer ItA nwnber of years ago, a client called and asked me whether we would win a case and, if we lost, the range of

damages. I pontificated with the utmost erudition on the vagaries ofjury trials, the elements of damages, and the like.In other words, I didn't have a clue. After about fifteen minutes of silence on the other end of O,e phone, the clientsimply said: "You haven't answered my question." He then said: "Maybe you don't know the answer, but of the fivebillion people on earth, you come closest to knowing." Then came a gentle reminder that he was paying me for myexpertise and did not think that an answer to the question was unreasonable. While my feathers were ruffled, I stilllearned the lesson.

I think these conversations are not uncommon. I was just lucky to have a candid client. I ran into anotheremployment attorney a few years ago at a conference. We shared the same client, but in different parts of thecountry. He said that our mutual boss, the assistant general counsel, asked what he thought it would take to settle acase, and what he considered the down-side exposure to be. He told me that he OlOught this was something of anunreasonable reques~ and told her that he really didn't know. Wrong answer.

Frankly, what lawyers would not put up with in their car mechanics, we expect clients to put up with in us.When we take our car to the shop in the moming, we don't expect to go back at night to have the mechanic tell us "onthe one hand, it could be the carburetor, but on the otiler, it could be the transmission, and yet on the other ... " muchless telling us it can't be fixed.

Allhough we need not engage in engineer-like precision, we can still ballpark it. We can do this in a number ofways: telling a client that if we try the case ten times, we will win or lose it "XU nwnber of times, or that we believe apotential jury verdict will be in a certain range a certain percentage of the time, or that we believe the plaintiff willsettle within an approximate range. We owe our clients the value of our expertise and OUf experience.

F. Rule 6: Have a POV-It's Your JobYou must have a POV. What's a POV? A Point of View. As former Texas Agricultural Conunissioner Jim

Hightower said, "The only tilings in the middle of the road are yellow strips and dead armadillos." A POV is not thesame as imposing a solution on the client. Rather, it is communicating opinions without blurring the roles of counselorand client.

5



Some lawyers fear expressing a POV. They think the client will be upset, or the senior lawyer will see them asupstarts, or that their opinion is of no consequence. We often tell new lawyers it is part of their job to speak up, andwe use this analogy: Planes often crash because the co-pilo~ rather than speaking up about the blinking red lighl onthe console, thinks, "the pilot bas done this for 30 years, he must 1o10w what's going on, so I'll just sit tight."

By being afraid of looking footish, saying something less than perfect, or admitling ignorance, a lawyer violatesanother home base rule - you've made it about you, not them.

And having a POV is notthe sarne as embracing in an unthinking manner a client's position. William ButlerYeats, in his poem An Irish Airman Foresees His Death, wrote the following: "Those that I fight I do not hate,those that I guard I do nollove." Every lawyer needs to remember those words. If you hate the other side, you'vemade it about you. If you love your side, you've made it about you. In both instances, you can't be an effectivecounselor.

G. Rule 7: For Goodness' Sake, Shut Up!Not the client, you. Lawyers often interrupt their clients, taUcing over them, and ending what could be a fruitful

diabgue. We do this for one of fWo reasons:

Some of us tend to be arrogant and pompous and want to impress the client wilh how much we 1010w.Clients, however, often perceive this rush to talk as a reflection of inexperience and a lawyer being tooanxious to prove his or her value. TIley also perceive it as not wanting to take the time to understand theirproblem. Remember: if you talk too soon, then you won't get all the pertinent facls and your solution maynot fix the problem.

orWe interrupt out of a more benign motive, and simply try to reflect back to the client that we agree withwhat the client is telling us. That's fine, but you need to let the client fmish conveying a Olought beforepopping up like a jack-in-the-box to recite some war story as to why the client is right. Remember: it'sabout them, not you.

Here's a rule of thumb. We like to tell clients when they conduct an investigation into inappropriate behavior in theworkplace that - rather than arguing with O,e complaining party that something didn't happen, or that a supervisor istoo good a person to corrunit sexual harassment - they take a "mental time-out," remin from talking, and listen to theperson. The sarne idea applies here. So, the next time you are with a client, and you want to start to talk, throw theflag and declare a "mental time~out." It works.

Dr. Rick Fuentes, a jury consultant at DecisionQuest in Atlanta, says that a jury hears only five minutes of anopening statement before the jurors start filling in the story from their Own backgrounds and experiences. Hecompares it to taking his two young sons to an action movie, and after only 10 minutes they tell him what will happennext.

Resist this impulse. If you don't, you end up imposing your story on the client's, eSChew inconvenient facls, andwind up with generic solutions to nongeneric problems. Couple this with a rush to judgment, which is often triggeredby a desire to impress the client, and you whip up a recipe for faulty corrununication.

So take the time to listen as you undersland these very real human tendencies. When in doubt, relum to homebase - it's about the client, not you.

H. Rule 8: Know Your ClientPsychologists tell us that there are a number of different personality types. A leading test il this area is the

Birkman, which divides personality types into four groups. There are other tests. The point of all this research is notto find out whal your personality type is, as the client's. Once you know that, you can lhen tailor your responses. Letme give you an example. I was meeting for the ftrst. time with the president of a corporation of about 150 employees.An employee he had terminated retained a lawyer who sent a demand letler. It went on for several pages andessentially said that lhe ex-employee was a whistle ·blower, which he asserted was the reason for the firing, and thatthe president had better pay up. Throughout our discussion, the president was very agitated at the letter.

He tI,en pulled out his response, flung it across the desk, and asked: "What do you think of this?" I glanced athis letter, looked up at him, and said: "llm glad it's more than two words,lI We connected. The same line or the same

6



approach with a different personality type would not have worked. What ll'e the different types of personalties?Here is a sununary:

'l!1i#~st:,:';>.: ,.~;: ~,.; :~. .,:~

Type

The Hard Charger

The Politician

The Accountant

The Minister

Best Approach

Start at the end, a.k.a. in the military as "BLUF": bo«om line upfront, like the compan resident.Focus on protecting their image; let them know, if there is aproblem, how you will fix it for them: the case is about both thecase and them and not necessaril in that order.Herelg their trotto: "I never met a fact I didn't likell

• process iseve hin and should be our focal ointListen a lot - has to perceive you as a caring, empathetic person.Work on developing a relationship.

1. Rule 9: Know YourselfHow do you know your communication style? Take this test. No reading on what's next.

Rate each of the four phrases after the followingfive statements on the following scale:

6=the word or phrase that best describes you.4=the phrase next mas/like you,3=the phrase next mas/like you, and1=the phmse least descriptive of you.

r am likely to impress odlers as:[_1 A. Results Oriented.[_1 B. Relationship Oriented.[_1 C. Practical Oriented[_1 D. Action Oriented.

Example:r am likely to impress others as:

[4] A. Results Oriented[6] B. Relationship Oriented[I] C. Practical Oriented[31 D. Action Oriented

The work r enjoy~[_] A. Results-oriented so that time and effort spent is justified.l_l B. Stimulating and thought-provoking with people I enjoy.[_1 c. Well planned, organized, and with a clear purpose.[--'J D. Challenging and likely to contribute something new.

My time is important, so r want to make sure that:[_l A. What r do shows results today.[_1 B. My decisions and actions are meaningful and have long-term value.[_1 c. r plan carefully and follow the plan efficiently.[_1 D. r select activities that are the most interesting and important to me.

I feel most satisfied when I:[_1 A. Get more done than originally planned.[_1 B. Am in a position to help a friend.[_1 C. Solve a problem by collecting information and thinking it through.,[_1 D. Can come up with a new idea to meet a challenge.

7



I enjoy it when others see me as:[_J A. A person who can be counted on to get things done.[_l B. Someone who is trustworthy, sensitive, and creative.[_J C. Someone who is organized and efficient.[_J D. A person who loves a challenge.

Chaptel' 29

ADD THE TOTALS FOR EACHCircle Vour Highest Score

A=[---.J B=LJ C=LJ D=LJRed Blue Yellow Green

J. Rule 10: Know Your Client; Know Yourself; Apply What You KnowWhat we've just gone through is called the Birkman. For more information, go to www.birkman.com. When

we first meet a client, or are just getting to know then, seconds count. We don't change who we are, but we dofocus on who they are and communicate accordingly.

Red Green Yellow BlueOffice Hints formal arrangement individual style functional casual, open

honors/achievement motivational items job-related items family, personal itemss chaos, very neat, vel)' organized lots of paperwork stacked by disorganizedtype

Body direct eye contact solid eye contact indirect eye contact variable eye contactLanguage businesslike fiiendly, smiles easily slow to smile wann, casual

finn handshake broad gestures closed gestures open gestures. Speaking direct, decisive spontaneous, general deliberate, slow thoughtful, casual

Style short, conversations tells stories, jokes organized, logical people storiesinterrupts, to the talks more than listens asks detailed questions, suggestionspoint questions

Expectations Results Creativity Thoroughness RelationshipsBottom·line Enthusiasm, Detail, Systematic Trust, LoyaltyFranJrness, Innovation Accuracy, Logic Friendly, PersonalEfficiency Novelty, Adventure

Focus Objectives Ideas Process Feelings

Strength Pragmatic Imaginative Objective EmpatheticConfident Creative Analytical Loyal, TrustworthyAssertive Enthusiastic Thorough Persuasive

Weakness Aggressive Unorganized Rigid Overly sensitiveDomineering Unrealistic Indecisive InternalizesImpatient Impractical Impersonal Avoids conflict

Best Short conversation Allow time to talk Provide written info. Face to face is essentialApproach Start with results Show enthusiasm Allow time to Get to know them

Provide choices Listen/discuss new review Emphasize rehtionshipBe direct l concise ideas Review Discuss needs

Use testimonials history/experienceExpect detailedquestions

8



Decision·Making

Will decide on thespot if infonnationsupports decision.

Push for a decision.No decision is likely a"no."

Will decide on the spotif level of enthusiasmis high.

May be vague as tospecifics of thedecision. Important tobriefly review thedetails to avoidconfusion,

Will rarely decidequickly. Needschance to reviewinformation andconsider the decision

Try to pin downdecision timing.Follow-up to answerquestions.

Will rare~ decide quickly.Needs chance to get toknow you.

Will focus on opportunityto work long-tenn.Follow-up with lowpress~re.

All of this is simply figuring out someone's needs and then devising a plan to meet them.Want to learn more? Several companies let you take the Birkman test or others at a modest price, together with

some training. Also, check out The Color Code by Taylor Hartman, which has practical, easy to implement adviceon how to identifY and deal with different personality types, or Selling the Invisible by Harry Beckwith, whichprovides thoughtful counsel, in a reader friendly fonnat, on meeting and exceeding client needs. Also, the TrustedA dvisor by David Maister is a must read.

K. Rule 11: Optimism Goes a Long WayIn his astute book, The Art ofAdvice, fonner Dean oftbe SMU School of Law, Jeswald W. Salacuse, makes a

telling point: an advisor whose advice is consistently negative is not as good as one who can explain the positiveopportunities in a situation. A client will very quickly pick up on this: the person who can see all of the negatives maybe more educated, but the person wbo can see all the possibilities is more experienced. Here's what he says:

A pessimistic advisor is not generally tite best advisor. Indeed, consistently negative advice is often anindication of inexperience. While fonnal education may have taught advisors what won't work, it'sexperience that teaches them what will ...

Being optimistic is not being a Pollyaruta; it is not adopting an ostrich-like attitude of self-delusion; and it is not a willfulrefusal to see the obvious. The essence of optimism is developing and presenting options which will solve the client'sproblem.

Any lawyer can essentially "CYA" by telling a client to avoid exposure and therefore not to do something.Clients do not need to pay for this - if the answer is black and white, then the client doesn't need us. Rather, it is upto the lawyer to develop options among the shades of gray. How do we go about doing this? Here's a simplefonnula: every time you say "this won't work," follow it up with a "(comma) but this will," or, better yet, keep thisdemarcation seamless, with your counsel on options twisted togetiter like a pretzel with your admonitions. Andspeaking of a client's context, remember that the best communications are those who provide a positive context,helping to see a half-full glass. Try some of these:

Talk about "meeting challenges," not "dealing with problems."Instead of saying "yes, but" to an idea, use a eOlmector to build 00 what the client says - "yes, and."Remind the client that often a challenge, as with the accountability example, is "inexpensive" tuitioncompared to what could have occurred, and point out the lesson learned and how il can be put to use in ti,efuture.

A couple of caveats. First, this rule is not to be confused with telling the client what she or he wants to hear. Youcan be both optimistic and horiest. I recently spoke to a client about a tricky and undeveloped area of removal law.When he asked about our chances of success, I told him that "we have good arguments but the operative word isargument. II Message delivered.

Second, keep in mind that when we represent individual defendants in litigation - which is becoming ever morefrequent - it is especially important to have just the right mix of optimism and frankness. A piece of litigation can

9



hang like a cloud over the individual defendant's life, permeating everything, not unlike the smell of a smoke-filledroom clinging to our clothes. It's rot a pleasant experience. Consequently, we need to have our antenna up, and toassist a client in placing the lawsuit in proper perspective.

L. Rule 12: Remember The Client's ContextClients don't operate in a vacuum. Whether representing individuals, or corporate America, everyone deals with

dynamics beyond the law. Here is a short example: The client wanted to fire an employee because it believed he hadinappropriately handled the reporting of a safety violation. Not taking what the client said at face value, it was clearthat more people were really accountable than that one employee. And part of the challenge was a very human one:the decision maker was a vice president over the entire area, and, like everyone else, there were employees he liked(the ones he didn't want to punish), and those he was neutral about or didn't like (including the one who was to bepunished). Ideal conditions for a wrongful termination lawsuit. So what did we do? A couple of things:

It would have been easy, and disastrous, to be forthright about what we thought. Instead, to drain IIlemeeting of unproductive emotion, we went to a grease board, diagramed the chain of command and thefacts, and focused on something neutral -Ihe facts on tl,e board - as opposed to feelings.Forgive the rhyme, but we framed without blame.

Once we wenllhrough the facts, we said, "We don't know exactly how to say this, so we hope you'll help us, butwe've noticed there may be some other people who should be held accountable." While initially upset, the clientcame to a better-reasoned and more defensible decision. Dostoevsky wrote that "A lawyer is conscience for hire."While il wasn't meant as a compliment, it does get to the heart of the matter.

M. Rule 13: Every Problem is an OpportunityThe Chinese character for danger is also the character for opportunity. We as lawyers need to embrace this

notion in dealing with clients, especially when the client makes an error in judgment. Let me give you an example.Recently, a client said that it was contacted by a govenunent agency. The agency was investigating why a

particular employee was denied his health insurance benefits after termination. It tums out that the client had anabsolute rule - no exceptions allowed - whereby benefits were denied whenever an employee was terminated for acertain reason. I didn't think much of the rule, not only because there was no practical benefit to the client, but alsobecause I thought it might be susceptible to legal attack. The call from the agency only confumed my fears, althoughtlle client ultimately dodged the bullet.

It would have been natural, and easy, to have criticized the client. This doesn't always involve an overtly criticalconunent - often, a slight change in the tone of voice, or body language, or a facial expression can just as effectivelyconununicate your displeasure at the situalion.

Instead of being critical of the client, and lecturing on the law, I made the follnwing points:

• The complaining ex-employee may have done us a favor.• The regulations dealing with this situation are like hieroglyphics and are hard to understand.• This allows us an opportwlity to revisit our policYl and consider revisions to it.

In short, the client saw - not a problem - but a positive development, and did not go on the "defensive." None of uswould want a physician who only treats the symptoms but doesn't cure the disease, LikeWise, a lawsuit or agovenunental inquiry or the like is often a symptom of a deeper problem. We need to keep this in mind, and treat thedisease, not just the symptoms. To return to Dean Salacuse:

One of the talents of effective advisors is to make the clients see the positive opportunities in a situation, tosee the glass is half fuJI rather than half empty, to view a problem as a chance for improvement rather thana certainty for disaster.

And, speaking of defensiveness, we need to help clients' lower their defensiveness, which chokes off the flow offacls. and increase their opeJUless, which opens the spigots of useful infonnation. Try this: use the phrase lithe moresomething goes without saying, the more it needs to be said II whenever a client - or you ~ say or hear something that

10



seems obvious. Using this phrase gives the client pennission to say what she thinks, without the risk of looking foolishor sounding dumb. This helps develop a common language with ti,e client, not unlike spouses who understand oneanother, without a word being spoken.

N. Rule 14: Respect Your Client's OpinionFrom time to time, cients want you to do something that you believe is not the absolutely best tactic. Lawyers

need to be especially careful, however, about coming to the conclusion that every difference in judgment warrants thelawyer saying "no, that is just wrong and will backfire." The ultimate "no" should be sparingly used, not unlike the useof salty language. When something is seldom used, the effect is greatly amplified when it is.

A lawyer acquaintance of mine told me the following story.. A lawyer was filing a summary judgment motion ina federal court case. The client wanted to add an obscure argument to the motion dealing with the collateral estoppeleffect of an administrative decision. In fact, the client thought it should be the first argunlent. After negotiating withthe client, the lawyer dropped the argument to a footnote. Well, you can guess what happened. The courl grantedthe motion, relying entirely upon the footnote.

Upon receiving the memorandum opinion, the lawyer called the client and told him in a jocular way: "J've gotgood news and bad news. The good news is that the motion was granted, lhe bad news is the courl relied on yourfootnote." The client shot back: "Well, in that case, J've got bad news and worse news. The bad news is you're notgoing to handle the appeal, and the worse news is your law firm is fired from all othercases."

1 don't think this is an extreme example. The lesson is not that "the client is always right." Rather, it is thatclients are often the very best source ct' strategy, tactics, and information about how to solve a certain problem. Weignore their wisdom at our own risk,

O. Rule 15: Don't Forget: We have an Ethical Responsibility in Termination DecisionsWe advise clients on whether to rue an employee. It is the employment law version of capital punishment. If all

we are saying is Uwrite them up three times" and flre them, we're failing in OUf duty. Here are 9 points to remember:

1. Ask yourself: Is this an 80120 or 20/80 employee?2. Use 100% effort to turn around the 80/203. Start off with the double -bind4. Focus on behaviors, not personalities5. Identify the problem.6. Use honesty and empathy.7. Consider the 12 types of 80/20 employees.8. Be prepared: the invasion of the stress caniers.9. Go ahead, take the next step.

P. Rule 16: Don't Forget: There are Cultural and Sexual Differences ill CommunicationHere are four resources:

• In the Company of Women by Patricia HeimThe Race Trap by Robert L. Johnson

• www.workrelationships.comThe Male Mind at Work: A Woman's Guide to Working with Men by Deborah Swiss

Q. Rule 17:The Client Makes Business Decisions, Not YouFrom time to time, clients want to put us in the position of making the decision for them. This comes from a

variety of sources: a company executive may want to put the blame on someone else if the matter you're handlinggoes wrong, or it may be a matter of business inexperience on the part of the client. Whatever its source, it is vitallyimportant that the lawyer, at the outset, help the client understand the difference between a "legal" decision and a"businessll one, This is a three·step process.

First, as a threshold matter, the lawyer needs to determine the approach the client prefers to take. Here are acouple of tactics you can use to do so:

II



• Focus the client's artention on what the client has done to resolve the marter. For instance, ask simplequestions about what the client perceives to be its options: "What have you already done to try to solve theproblem?" or "Whai options have you thought about or are you thinking about trying?"

• Focus the client On what the client perceives is its objective in the marter. Is the objective to try the lawsuitbecause a sertlement would simply encourage others to sue or is the objective to manage the risk to thecompany by sertling? Remember: when you and the client seem to be losing focus, ask yourselves: whatare we trying to achieve?

Second, present all of the options to the client - that is, the options that will assist in solving ti,e problem. Thisentails more than going into full fledged litigation mode. To borrow a concept from the medical profession, sometimesinvasive procedures are called for and sometimes not. This development of options can involve, for instance, "creatingevidence" before suit is filed. (Noti! didn't say manufacturing.) This phrase is simply shorthand for making sure thatthe client's pre-suit actions generate the facts that will give the jury a reason to find affirmatively for you, not merelyan excuse to find against your opponent. It can also involve simply picking up the phone and asking the other sidewhat they want before declaring all-out war.

Third, in keeping wi til rule number two, it is o.k. to tell the client what you would do, as long as the dividing lineis clear. The question can be answered directly, but with a caveat. My preference is telling the client "I'll take mylawyer's hat off for a minute, and put On my manager's hat .. ,'I or uIf I was sitting in the CEO's chair and it was mycompany to run, then I would ..."After this, however, the lawyer should refocus the client on all of the options thatpresent themselves, not simply the one the lawyer would choose should he or she be in the driver's seat.

R. Rule 18: Don't Forget tlte Art of Decision MakingBecause we 8re advisers, we must understand how our clients make decisions. A key to doing so is

understanding tile common decision making traps. Here are a few:

• The Anchoring Trap• The Status-Quo Trap• The Sunken Cost Trap• The Confirming Fairness Trap• The Provider Trap• The Reliability Trap

S. Rule No. 19: Manage ExpectationsLike Rule No. I, this is a "home base" rule: Learn how to manage a client's expectations. This is not to be

confused Witll manipulating the client. Rather, what I am tlIlking about is making sure the client understands the legalprocess, comprehends what it entails, and embraces a realistic view of the matter. And, the verb "manage" isdeliberately used - this rule involves an ongoing process, not a one shot effort. Most successful CEO's do exactlythis. When a CEO does so, the price of stock in her company rises; when you do, tile client is positioned to be neithertulduly surprised on the upside or on the downside, and your credibility rises. You cannot effectively communicatewith a client holding wlrealistic expectlltions. He won't hear what you are saying.

T. Rule 20: Be AuthenticFinally, good communication is based on autllenticity. You can't take another person's style and make it your

own. Before the decisive battle of Midway, Admiral "Bull" Halsey was knocked out of commission by illness. RaySpruance, his replacement, went to the hospitlll, asking him for advice. Halsey's blunt counsel: "When you're outtllere, don't play it the way you think I'd play it'; play it the way you think it should be played." Now that'scOlTununication, and, by the way, still good advice more than half acentury later.

U. ConclusionThe practice of law takes its toll. It's frustrating and often seems counterproductive. We settle cases not

because the person really is a victim of discrimination, but because he or she has a compelling stol)' to tell and we'reconcerned about juror identification with on~the-job trauma. We do not expand the economic pie, we only help incarving up how it's divided. When we get a summary judgment, or win a case at trial, we feel equally frustrated: all

12



the expenditure of time and effort and the client is no better off - the status quo prevails. (Sometimes it's worse. AsVoltaire said: "There were only two times in my life I was financially ruined. Once is when l Jost a lawsuit, and theother is whenl won one.")

Developing your "EQ" can, however, make the practice of law more enjoyable. Here's an example. l hadrepresented a clie nt for a few years, with one particular person as my contact. She was a high-ranking executive,and we'd spent a considerable amount of lime together. One day she introduced me to some new subordinates as her"consigliere.'f

Naturally, l flashed onto images of The God/ather, John Gatti's lawyer and Tony Soprano. Was as I really thatunctuous? Did she consider me that IlDprincipled? I quickly realized, however, that this was a compliment, not aslam. Driving home that night, I slowly realized something else: her comment was a wonderful reminder of why wedo what it is that we do.

13


MAKING HARD DECISIONS:

THE 25 KEYS TO INTEGRITY-BASED DECISION MAKING

MICHAEL P. MASLANKA Ford & Harrison LLP

1601 ELM STREET, SUITE 4450 DALLAS, TEXAS 75201

(214) 256-4700 (214) 256-4701 (FAX)

[email protected]

Making Hard Decisions: The 25 Keys to Integrity-Based Decisions Chapter 9

i

TABLE OF CONTENTS

KEY NO.1: ETHICS ISN’T A MOVIE ........................................................................................................................ 1

KEY NO.2: DON’T CALL IT ETHICS ........................................................................................................................ 1

KEY NO.3: IT’S NOT ABOUT YOU........................................................................................................................... 1

KEY NO.4: AMASS POLITICAL CAPITAL, BUT SPEND IT WISELY .................................................................. 2

KEY NO.5: DON’T NUKE MONACO ........................................................................................................................ 2

KEY NO.6: GIVE THEM A DIFFERENT STORY ..................................................................................................... 3

KEY NO.7: BEWARE OF THE GREATEST ENEMY OF INTEGRITY-BASED DECISIONS............................... 4

KEY NO.8: TEMPORIZE, TEMPORIZE, TEMPORIZE ............................................................................................ 4

KEY NO. 9: SEE IT COMING...................................................................................................................................... 5

KEY NO. 10: WE ARE ALL BIASED ......................................................................................................................... 6

KEY NO. 11: READY, FIRE, AIM .............................................................................................................................. 7

KEY NO. 12: FOUR TRAPS TO AVOID .................................................................................................................... 8

KEY NO. 13: THINK HAM & EGGS .......................................................................................................................... 9

KEY NO. 14: FIND A GOOD MODEL...................................................................................................................... 10

KEY NO. 15: GET THE CLIENT TO LOOK AT THE BIG PICTURE .................................................................... 11

KEY NO. 16: REFRAME THE ISSUES: STORYTELLING PART II ...................................................................... 12

KEY NO. 17: IT'S ABOUT FUNDAMENTALS........................................................................................................ 13

KEY NO. 18: THE DIFFERENCE BETWEEN THE RIGHT WORD AND THE

ALMOST RIGHT WORD............................................................................................................................... 14

KEY NO. 19: AMBIGUITY AND ANGER ARE YOUR FRIENDS......................................................................... 15

KEY NO. 20: KNOW YOURSELF/KNOW OTHERS............................................................................................... 17

KEY NO. 21: OPTIMISM GOES A LONG WAY ..................................................................................................... 19

KEY NO. 22: EVERY PROBLEM IS AN OPPORTUNITY ..................................................................................... 19

KEY NO. 23: BE AUTHENTIC.................................................................................................................................. 20

KEY NO. 24: THE LAW ISN’T ALWAYS THE ANSWER..................................................................................... 20


1

KEY NO.1: ETHICS ISN’T A MOVIE While Norma Rae and Erin Brockovich are entertaining movies, they don't reflect real life. Seldom

is an ethical decision a matter of high drama. Instead, it's difficult, grueling, and often thankless work. But, managers and lawyers sometimes fall into the trap of thinking it is a movie, and becoming a hero of their own story. Corporate chieftains tend to make everything a "High-Noon" scenario between them and the employee, while employees often cast themselves into the roles of one brave soul against a heartless corporate machine. As with life, the truth is in the middle, and you lose your effectiveness by buying into either story line. KEY NO.2: DON’T CALL IT ETHICS

We know this may sound odd, but let me tell you a story on why to delete the word "ethics" from

your vocabulary. We were picking a jury in a employment case several months ago. A new lawyer was picking one just before us. He consistently asked the jury pool the following question: "Do you think if selected to serve on this jury, that you could be fair?" Not surprisingly (at least to us), they all thought they would be. When we ran into him in the hall later that day, we gave him some advice on jury selection and, well, he told us to mind our own business.

But the same principle applies here: everyone thinks that she is an ethical person, or she is a better person than she really is, or convinces herself that she is more ethical than those around her. Instead of using "ethics," try using "business integrity." It's easier to talk about ethical issues by using the "Trojan Horse" of business integrity. Once you start talking about ethics and morality, the discussion slips into argument, with the client becoming defensive. Remember: framing the issue matters just as much as the issue itself. And, when counseling an individual, try framing it in terms of "personal integrity." It's all about making integrity based decisions.

We all think our intentions are pure and good, thus distorting our judgment, and our ability to closely examine the reality of an issue or situation. As my Mom used to say, “We all think we’re better people than we really are.” KEY NO.3: IT’S NOT ABOUT YOU

The essence of being a good adviser, especially on issues that are integrity related, is to understand

that it's about the company and the client, not about you. This is somewhat akin to the idea of being a hero in your own movie. When you make it about you, you're incapable of giving advice on dealing with situations involving business or personal integrity. It's like the scene in “The Verdict” with Paul Newman.

He's ready to accept $250,000 in settlement, but decides to go the hospital to take some photographs of his client - the victim of a botched operation in a Catholic hospital - who is on a respirator. He takes a few pictures hoping to get more money in settlement when he meets with the Cardinal that afternoon. Not a word is said in the scene, and all you hear is the hiss of the respirator. You see it all in his face: it moves from interest, to concern, to a bulb going off above his head saying essentially, "If I win this case, I can make up for everything I've done wrong in my sorry life." Cut to the Cardinal's office, where he rejects $250,000. He made it about himself and he was wrong.

When in doubt, remember these lines from William Butler Yeats, “An Irish Airman Foresees His Death”:

Those that I fight, I do not hate; Those that I guard, I do not love. This is the mind set that you need in being a counselor on any issue, but especially integrity based

ones.


2

KEY NO.4: AMASS POLITICAL CAPITAL, BUT SPEND IT WISELY The single most important any of us have is this: political capital. You create political capital by

being a team player, showing people how to achieve the results they want and not just saying "no." To have political capital, you're going to have to have a POY - that is, a point of view. As former Agriculture Commissioner, Jim Hightower, said, "the only things in the middle of the road are yellow stripes and dead armadillos." Your advice cannot be all things to all people: so, avoid Groucho Marx's counsel that "these are my principals, and if you don't like them, I have others." Situational decision-making will come back to haunt you. You're there to help identify principals that are important to the organization. Life doesn't give us the luxury of having a lot.

So, when you have political capital, make sure you spend it wisely. Political capital is like money in the bank. Build it, hoard it, and spend it only on important things.

Here's an example of wise spending. At the start of my career, I went to a meeting with the General Counsel, the CEO, and Senior Partner. The issue was an age discrimination suit filed by three long-term former top executives. And, the CEO was apoletic. How could they sue the company after all the great things he had done for them? Like a jilted lover, he wanted them to suffer. Now that he thought about, he was certain that the former execs had abused their expense accounts for all these many years. He was demanding a full investigation and wanted to file a counter-claim for fraud. And, come to think of it, a private detective to trail these guys wouldn't be such a bad idea either.

Foolishly, I started to speak, with the intention of telling the CEO why this was a bad idea. The General Counsel gave me this look: I remember it to this day, the sort of look a pet owner gives an unruly dog or a parent a boisterous child (maybe it's the other way around). The words caught in my mouth. Later, in a one-on-one, the GC said, "Point One: He'll forget about it in a week; Point Two: Remember what battles to fight." He was right on both points.

This leads me to two observations by Machiavelli in “The Prince.” First, you must have leverage before guiding a person to make an integrity-based decision. As Machiavelli remarked: “A man who has no position in life cannot even get a dog to bark at him.”

Here’s the other. An admonition to see things as they truly are, not as you wish they were:

How one lives is so far distant from how one ought to live, that he who neglects what is done for what ought to be done sooner effects his ruin than his preservation, for a man who wishes to act entirely up to his professions of virtue soon meets with what destroys him among so much that is evil.

So, remember, while General George Pickett’s charge at the Battle of Gettysburg was admirable and inspiring and courageous, he only got to do it once. KEY NO.5: DON’T NUKE MONACO

People are going to put you in predicaments where you will be required to take some action. Here's

a rule we cannot emphasize too often or too much: Always make a proportionate response to the integrity dilemma that you're confronting. You must always ask yourself: "What is a proportionate response?" Let me give you an example of where I was put in an integrity pickle.

We were representing an owner of a company accused of sexual harassment. While it was his word against hers, he confirmed many of her allegations. Several months later, recognizing that it was purely a credibility contest, he suggested that his deposition testimony could differ from what he told us initially; after all, no one but her could say otherwise.

It would have been easy, but counter-productive, to become the ethics police and say, "I am shocked; that's wrong; get another lawyer!" Do so, and even if we stayed his lawyer, he would have clammed up in the future. Instead, we wrote him a letter, noting that we were sure the comment was borne of frustration with the length and complexity of the legal process - a frustration we shared - and we knew


3

he would testify consistently with what he told us earlier. We were also confident he would not put us in a situation where we would need to evaluate possible withdrawal. It worked.

Remember: It's better to remind than to lecture. Dr. Samuel Johnson said so in the 1700s: He was right then, and he's right now. Counseling clients is not like those interventions you see on TV. Friends of a drug addict or alcoholic meet with him, essentially requiring him to undergo shock therapy, in order from him to see that he is destroying himself. It may work with addiction, but it doesn't work in getting someone to do the right thing.

All of this is to say, as Lincoln remarked in his First Inaugural Address, we must seek out the angels of our clients’ better natures. And in doing so, we need to help them find “wiggle room.” In his perceptive book, Defining Moments, Joseph L. Badaracco, Jr. presents this hypothetical:

A young African-American consultant is asked to be on a deal team. It’s a great opportunity. But, he suspects that he’s chosen simply because he’s African-American. The deal involves municipal finance, of which he knows almost nothing. This is confirmed by his mentor at the company, who tells him that the potential client wanted to see at least one black professional on this deal, or the consulting firm had no chance of getting it. He goes to Human Resources and says he’s read over the company Mission Statement, which talks about advancing on merit. His personal values feel corrupted. What should he do? What should Human Resources tell him to do? Is there “wiggle

room?” What is the “proportionate” response? KEY NO.6: GIVE THEM A DIFFERENT STORY

Let's go back to our company owner for a minute. We could have listed for him the various bad

things that would happen if he did not tell the truth, or skirted the truth. All of which would be graded a 100% for factual accuracy. But it wasn't factual accuracy he needed.

Annette Simmons writes in The Story Factor (one of the best books you can ever read on being a

counselor):

Giving people more facts adds to the wrong pile. They don't need more facts. They need help finding their wisdom. Contrary to popular belief, bad decisions are rarely made because people don't have all the facts. Bad decisions are made because people ignore the facts, do not understand the facts, or do not give the facts enough importance. . . more facts will not help them regain perspective. A story will. A story will help them figure out what all these facts mean. And that's what we did with our owner. We gave him a different story to believe. Facts don't have

the power to change someone's story. Their story will always be more powerful than your facts. You must remember this: you cannot change the facts, but you can change the story. When confronted with integrity dilemmas, think about giving people a different story to believe.

In her book, Simmons talks about a Vice-President of Human Resources at a manufacturing plant that was confronted with a morale dilemma. She was assigned to a large division of a manufacturing unit that found out that their product line was being phased out. And, what was left, was going to be "re-tooled" and required the employees to learn new skill sets. The employees saw a lifetime of experiences go up in a puff of smoke and years of "starting over" looming ahead. It wasn't a happy crowd.

The VP of HR though decided to change the story. She told the employees that while they were going to have to learn new skill sets, many of their colleagues at different locations, in different factories, had lost their jobs in the reorganization. This plant - each and everyone of them - not only had a job, but a new product, a new future. The bottom line: "one story was ending, but a new story was taking its place."


4

And, she made it personal to the employees: she saw a new beginning filled with opportunity to fix the problems they had always had in the facility, to redesign the plant so they could offer benefits to employees such as childcare, and to implement process controls that had been impossible with the old product. She changed the story - she made it a story about beginnings rather than endings - same facts, different story. Her advice:

If you tell them a story that makes better sense to them, you can reframe the way they organize their thoughts, the meanings they draw, and thus the actions they take. . . . Change their story and you change their behavior.

More on this later. KEY NO.7: BEWARE OF THE GREATEST ENEMY OF INTEGRITY-BASED DECISIONS

Here it is: time pressured decisions: "Do it now" or "We've got to get this order of widgets out by 5

p.m. no ifs, ands, or buts" or "The whole world is watching, we'll look stupid if don't launch the Challenger today." To borrow a phrase from H.L. Mencken, decisions made under unnecessary time pressures are usually "swift, sure, and wrong."

While some decisions must be made on the spot, it's when you are bullied into a short decision-making time that integrity-poor decisions are made. Look at the Challenger disaster. Until unnecessary time pressures were injected into the decision making process, the mantra at Mission Control was always: "Can you prove it's safe to launch, because if you can't, we're not." When time pressures were interjected, the issue was suddenly framed differently to "can you show me launching isn't safe, because if you can't, we're launching."

According to J. Keith Murnighan in “The Art of High-Stakes Decision Making”, here are the signs

someone is making time pressured decisions:

• They increase their information processing speed but decrease the amount of information they consider;

• They increase the weight they place on negative information; • They increase their use of simpler rather than more complex decision models; and, • They lock in on and defend their first chosen strategy.

KEY NO.8: TEMPORIZE, TEMPORIZE, TEMPORIZE

What can you do to slow down a runaway decision-making train? Here are a few ideas.

First, ask this question: "If we had twice as much time to make this decision, would we still do the same thing?" Or, try to temporize, which is a $300-an-hour word for stalling. To temporize, avoid rapid back and forth emails: try using a positive/negative sentence, something like, "While I appreciate the need to make a decision soon, we still must fully consider all issues, which we can only do in a face-to-face meeting."

Here's an example of temporizing. A few years ago, we were consulting with a company considering the termination of a high-ranking executive. The losing end of a wrongful termination suit would yield huge exposure. So, we, the Associate General Counsel and the decision-maker (who worked in another facility about 3 hours away) had a conference call. The decision-maker wanted to fire the executive ASAP.

Forgetting Dr. Johnson's advice, we started to lecture the decision-maker on why he must come into headquarters for a face-to-face meeting. The GC held up her palm, cut us off, and calmly said: "Joe, would you buy a $500,000 piece of machinery without looking it over and talking with the key people face-to face? Of course you wouldn't, well we're talking about a $500,000 decision by terminating Jack ? (Pause) So, when do you want to come in?" a pause. And, then she said, “remember what our CEO says:


5

Measure twice, cut once.” Bingo, it worked. (And, come to think of it, a great story. Simmons would be proud.)

I know what some of you may be thinking; that this is about manipulation. It isn’t. Integrity counseling is more than telling a person what a statute says. (By the way, there is a great chapter in “The Story Factor” on "I Know What You Are Thinking" stories.)

Speaking of temporizing, let's look at the following scenario created by Jeffery Seglin. Seglin's

scenario:

You're CEO of a jet engine repair company. At the end of the Company's annual audit, you receive news that 11 planes that your company's worked on have been grounded for potential turbine problems. You're just a few days away from having to sign the audit letter that there aren't any potential claims or issues that have a possibility of producing negative financial results. Here's the dilemma: If you put that in the audit letter, the banks panic, credit dries up, and you're out of business. What do you do? You insert a vague response that "the company had a problem and that we're on top of that problem." No one ever inquired about it, it turned out to be a false alarm, and the company moved on.

Did he do the right thing? Seglin says "no", but Murnighan says "yes." It was a life or death issue

for the company, and the CEO temporized, giving himself more time to figure whether his company's turbines were actually posing a danger to passengers and how to fix those problems. And, here's the kicker: what he said - albeit vague, closely matched the information that he had. As Mark Twain said, "when in doubt, resort to the truth." KEY NO. 9: SEE IT COMING One of my favorite writers is Texas mystery writer, Doug Swanson. Listen to what he has to say from his novel "96 Tears":

Jack thought about big, nasty surprises, how they shouldn't happen. Not if you asked all the right questions, not if you paid attention. You only had to be alert for the signs: the spot on the skin, the smoke on the wind, the noise at the window, the unreturned kiss. See it coming. That was the trick.

Isn't that the truth? And, you can see it when issues of integrity are barreling down the pike. Here's

a phrase that should always set off your early warning systems when talking to clients: "Don't worry, I'll take full responsibility if a problem comes up later."

Let's look at an example: We were consulting with the Vice-president of Human Resources, who said that an employee told her he was asked to double bill. He had spent about 50 hours on a project for one client, figuring out a difficult architectural issue. This employee's boss told him there was a new client with the same problem, and he wanted the employee to charge 50 hours as well to that client. When the employee responded, "I already know the answer, so that would not be right," the boss said, "Don't worry, I'll take responsibility."

Our advice: use a technique called "name the game." So, the next time the boss asked whether the employee had done as asked, the employee said, "Now, let me see if I got this straight. You wanted me to spend the 50 hours on one account and bill them to a new client, even though I didn't do the work for that client. Do I have that right?" Don't say it as an accusation, only as a statement of fact. After saying it a few times, the boss gave up.

And here's another early warning one: whenever you or someone your working with starts to say things like "that's not my problem, that's the problem of the guy on the other side" or "let them worry about


6

that." Stop and ask yourself: are we saying these things because they are true - that is, we can't do the work for the other side - or are we saying these things because they involve unpleasant facts that we either don't want to acknowledge, or prefer to take an ostrich-like attitude of self-delusion about. If the first, you go one way; if the second, another. In making this analysis, recall Ben Franklin's wise advice: "Half the truth is often the biggest lie."

How else can we see it coming? Here are some key phrases, courtesy of Laura Nash in her outstanding book, “Good Intentions Aside: A Manager’s Guide to Resolving Ethical Problems.”:

• “Nobody’s getting hurt” • “Everybody does it. That’s just the way things are done.” • “Everybody understands what’s really going on.” • “I can’t afford to do otherwise.” • “That’s not really an ethical issue.”

KEY NO. 10: WE ARE ALL BIASED

Yes, we are. Here are common types of biases in decision-making:

Confirmation Bias - We're all guilty of this one, and you see it often in employment discrimination cases with juries. A person reaches a conclusion (usually very quickly) and then accepts all information coming in that confirms their initial viewpoint, and rejects or twists around all information coming in later that is inconsistent with their initial viewpoint. At its extremes, it can have devastating consequences. Going back to the Challenger disaster, Thiokol's managers (the company that designed and manufactured the Challenger) looked at the engineers' data from NASA and they interpreted it as confirmation of their decision to launch, viewing what was actually ambiguous information as support for what they wanted to do. And - more fatally - confirmation bias choked-off their desire or interest in seeking information that might disconfirm their initial tendency to launch.

How do you avoid this bias?

• Ask a disconfirming question. Something along these lines: "Short of [doing x],

what could we do to [achieve y]? The purpose of this question is to disprove the initial belief that you attach yourself to.

• Build counter arguments. What's the strongest or best reason to do something else? The second strongest or best reason? The third?

• Consider your own motives. Be brutally frank with yourself: Are you really trying to gather information to help you make a smart choice, or are you just looking for evidence confirming what you'd like to do?

• Seek out the help of others, but don't ask a leading question.

Availability Bias - Here's a question for you before we look at this: which causes more death in the United States - colon cancer or motor vehicle accidents? If you're like 86% of the respondents in one study, you said motor vehicle accidents. In reality, more deaths result from colon cancer. Why? Because of their greater publicity, instances in which auto accidents lead to death are far more available in our memories. Simply put, we remember more recent or sensational information better than older or less sensational information.


• Avoid reliance on memory.


7

• Know that the cause of an outcome may not be the most available factor that comes to mind.

• Get the right facts on paper and in our heads.

Fundamental Attribution Bias - Our minds do not accept that the world in random. As popular novelist Tom Clancy said: "The difference between fiction and reality is that fiction must make sense." But, our minds - and this operates when we're making decisions - want it to make sense - we don't want to believe that things just happen and believe that someone must be a fault. Thus, rather than recognizing that situational forces such as bad luck or an outside factor caused an outcome, we assume that a person's action or lack of it caused a problem.


• Embrace a "constellation of events." It may not be someone's fault. This is

especially important in termination decisions if it is someone' s fault, termination may be called for: if mitigating factors come into play, maybe not. Also, always ask the client.

• Look for all contributing causes. It is too easy to want to place blame on one person's shoulders. If an employee makes a mistake our natural instinct is to blame that one person. But, before doing so, ask yourself the following question: Are others also culpable? Look at issues like - "Was the employee properly trained for the job?"; "Where was the supervisor when the incident occurred?"; "Did the Company have any checks and balances in place?" If you don't, you can bet that the jury will ask these questions.

KEY NO. 11: READY, FIRE, AIM Let’s see how some of these ideas play-out in one of the hardest decisions that you’ll ever make – when to fire someone.

Danger Sign No. 1: Gotcha! Difficult employees are everywhere. And, perhaps they should be terminated. But all too often, we

see problem employees who are terminated for minor or trivial reasons. When you find yourself saying, ''Now I have a reason to get rid of this employee," you need to put

the brakes on what you are doing. All too often we find that employers in this situation are not terminating an employee for a good reason, but rather have a problem employee on their hands - one who the employer probably has not adequately counseled. The employer conveniently sees a minor infraction as a way to make an end run around the hard work of laying the proper groundwork for termination. And, you know what? Employees terminated under these circumstances often bring successful lawsuit for retaliation.

Danger Sign No. 2: Rushing to Judgment There are things you truly know and things you only think you know.

Let's give you an example. We were talking to a lawyer in another firm about a case involving a terminated employee. We suggested to the lawyer that perhaps the client should think about offering the person her job back. Looking stunned, he said, "They can't do that; she's a thief."

When we inquired about why he believed that, his only response was that he had a conversation - not an eyeball-to-eyeball interview - with an employee who himself had been terminated from the company under suspicious circumstances and who may have borne a grudge against the ex-employee in the lawsuit,


8

but who claimed that he saw her take something without following proper procedure. The lawyer really didn't know that the person was a thief. Instead, because it fit his preconceived view of the situation, he concluded she was a thief and rejected all evidence to the contrary. Employers do this all the time. If you find yourself thinking that you truly know the facts of a case without hearing the whole story, then think again about the course you're on. Here's a simple test. Ask yourself the following question: "What facts do I have to support my belief that the employee [fill in the blank with the purported conduct]? If you can't answer the question, STOP!

Remember that a fact is not surmise or guesswork or hearsay. Rather, just like the computer that we're typing this on, facts are solid and verifiable.

Danger Sign No. 3: Developing Tunnel Vision Remember reading Les Misérables in high school? Remember Jaubert, the detective who

obsessively went after the poor guy for stealing a loaf of bread? Let's update it. What about Mulder on the X-Files? No matter what Scully tells him, he either rejects it out of hand or argues with her about it. The two detectives suffer from the same problem: tunnel vision.

Although it may be entertaining to read about or see on television, tunnel vision can be devastating

in the workplace. And, frankly, it is easy to fall into. Here are the danger signs:

• focusing on the employee under investigation without looking at any contextual facts; • laying all the blame for a problem on a particular employee without considering whether

other employees should also be held accountable and perhaps disciplined; or • deciding, before hearing any of the facts, that the employee is guilty as charged.

If you find yourself with one or more of these danger signs, then take a gut check. Ask yourself

whether you are too close to the situation to make a considered judgment that is in the best interests of the company or whether it would be better to have another supervisor or manager handle the situation.

Frankly, it's OK if you don't think you can be fair. To return to the fundamental truth: People are not as fair as they think they are, and they often let their subjective beliefs and feelings get in the way of a considered decision. That's not bad; it's only human. It's a sign of maturity, not abdication of responsibility, to distance yourself.

Often, even what appears to be relatively straightforward investigations are invariably fact-intensive. Here's some advice for you: Do a time line on a grease board. Not only does that help you and other managers figure out what happened, when it happened, and who was involved, but it also has an added benefit - people at meetings tend to be less confrontational and listen more when thy are looking at a grease board and not across the table at someone they may be disagreeing with.

Following these guidelines and being honest with yourself will help you next time you face terminating a problem employee. You'll be able to tell your boss and the lawyers after a lawsuit that the procedure you followed was, in fact, "ready, aim, fire." KEY NO. 12: FOUR TRAPS TO AVOID

When managers make it about themselves, not the company, business integrity fails. (Remember

Rule No. 3.) And, this happens in three scenarios: inartful avoidance, the Narcissus syndrome and the consensus complex.

Let's look at inartful avoidance: Managers refusing to make decisions, or needlessly delaying decision-making, create stressors on business integrity.


9

Avoiding Inartful Avoidance Consider the 1990 case, Vaughn v. Texaco Inc. An African-American employee allegedly was

underperforming. Because she was admired by other African-American employees and an advocate for their concerns, her managers avoided dealing with her shortcomings, preferring to "keep the peace." When business conditions compelled a reduction in force, she was selected; she sued for race discrimination. The 5th Circuit said she gets a jury because race played a role in the managers' decision to duck their responsibilities to give fair warning about her performance deficiencies. After all, if she was counseled, she may have improved and avoided termination, according to the opinion.

It seems the managers put their needs (avoiding an unpleasant situation) ahead of the company's and

the employee's. Note: Even if the decision was made for nonracial reasons, the integrity of the business is still undermined. Any "me first" decisions by managers will do that.

Dodging Narcissus In Greek mythology, Narcissus saw his reflection in a pool, fell in love with himself and was

doomed. We see this in the workplace, with managers favoring - either in hiring, promoting or firing - those with similar life experiences. Here are some danger signs: myopically focusing on an employee under investigation for wrongdoing without looking at all contextual facts; laying all blame for a workplace issue on a particular employee without considering the culpability of others; and having good interviews only with those applicants that are like themselves. Again, it's managers making it about themselves.

Here is a fundamental truth: None of us - not a one - is as fair as we imagine ourselves to be. This is not bad; it's human. So, think about rescuing managers from decisions where they may be a little too close; it's not an abdication of responsibility by them, it's embracing it or simply being more sensitive to this issue and weighing it accordingly in decision-making.

Consensus Often Kills Beware of the consensus complex. If a manager waits until every single fact is in, and every single

person is on board, then the decision may not be second guessed, but it also never may be made. Decisions unnecessarily delayed stress the integrity of the business. By waiting, the manager again puts his needs before those of the company and its employees, makes the decision about him, not them.

Let’s give them a chance.

One of the most common violations of business integrity occurs when a person is keep in a job for which they are not suitable or which does not match their skill-sets. Every minute, every hour, every day, they are in a job for which they are not qualified is one less minute, one less hour, one less day they can be in a job for which they are better suited and in which they can make a contribution. KEY NO. 13: THINK HAM & EGGS

How does a company go about instilling ethics into everyday operations? By thinking ham and eggs, but more on that in a minute.

In a recent survey by KMPG, 80 percent of employees who felt that top management would uphold ethical standards would recommend their company to recruits. But what happens when employees perceive management as taking an ostrich-like attitude of self delusion? The percentage nose dives to 21 percent, and the percentage of those believing current customers would recommend their company to others tumbles from 80 percent to 40 percent.

Too often lawyers think a corporate ethics policy is the start and end of a commitment to business integrity. It isn't. The company's employees, its most valuable asset, look beyond the written policy to the


10

actions of management. While ethics policies are helpful, there's no comparable impact to executives putting themselves on the line. It's like a ham and eggs breakfast; the chicken is involved, but the pig is committed. Same here. Executives need to lead by example, taking stands on issues impacting business integrity. When ethical standards are embraced at the top, they're embraced down the line. Look at this from the Ford Motor Company:

At Ford Motor Company, we endeavor to become a leading contributor to a more sustainable world. Corporate citizenship is an integral part of every decision and action we take. Corporate citizenship focuses on who were are as a company, what we offer in the market place, and how we conduct our business. We aspire to be one of the most respected, admired, and trusted companies in the world. In his book “Net Words”, Nick Usborne suggests revising a policy like this to speak in a more

human voice.

At Ford Motor Company, we try hard to follow business practices that are sustainable in the long term. As a company, we are aware of the impact we have on the planet around us. This awareness shapes who we are as a company and how we conduct our business. We are working hard to earn your trust. As Usborne points out, "Simpler language. Simpler concepts. Simpler promises." Employees will

be at a loss on what to do, or where their company is going, if all they get has the substance of soufflé. KEY NO. 14: FIND A GOOD MODEL

Model 1: Can I Sleep At Night? While some sound enticing, they aren't all helpful. One is the "Can I sleep at night?" test. That's

not much help; after all, executives lie awake at night precisely because they have done the right thing and because they understand their decisions impact lives, with real, not theoretical, consequences.

Model 2: Do I Like What I See In the Mirror? Similarly, the "look in the mirror" test requires you to ask yourself, "What kind of person do I want

to see when I look in the mirror in the morning?" Our take is the same as journalist H.L. Menckens': "For every complex problem there is a solution that is simple, neat and wrong." A couple of other on our "10 Most Wanted List" parade: "No good deed goes unpunished" and "Character is what you do when no one else is watching."

Model 3: The CEO Model Norman Augustine, Lockheed Martin's former CEO, is quoted in Jeffrey Seglin's book, "The Good,

The Bad and Your Business," as saying there are four questions that must be asked before making a decision: Is it legal? If someone else did it to you, would you think it was fair? Would you be OK with the decision if it appeared on the front page of your hometown newspaper? Would you like your mother to see you do it?

Model 4: The Front Line Model For those close to the front lines who are charged with implementing decisions:

• Have we accurately figured out the issues at hand? • What is the purpose and intention of our decision? • What are the effects on others - our shareholders, our employees, the public and other

companies?


11

• Will it be a valid decision over time, or are we deciding based on a short time-frame or expediency?

• Are we omitting contradictory facts from our analysis for convenience's sake or to bolster the favored decision?

• Could you tell your decision without qualms to your boss, your CEO, the board of directors, your significant other?

• Is the decision right? • Is it fair? • Am I hurting anyone? • Could I disclose this to the public or respected mentor? • Would I tell my child to do this? Model 5: Knowledge and Control

What do we mean? Ask yourselves these questions: Are we telling our employees about what the company is up to and what we expect of them, and are we investing them with the tools to act on the knowledge? For instance, don't just let employees know business is off without also giving them opportunities to develop new skill sets to avoid being caught up in a reduction in force. Similarly, don't simply parade out your company's ethics policy without also providing a way to register concerns about it effectively. The knowledge and control model comports with business integrity and provides ammunition for you in a lawsuit. When a jury sizes you up, they will think to themselves: "If I worked at this company is this the way I would want to be treated?" "Even if I don't agree with their decision, was it made conscientiously?" "Would I feel safe if I worked here?" Often, decisions on business integrity come down to finding the right process. KEY NO. 15: GET THE CLIENT TO LOOK AT THE BIG PICTURE The best models that we just talked about all get the client to look at the big picture. They expand the frame of reference. Here's something that happened to us: A company we represent was knocking down a wall in remodeling part of their facility. When the wall got knocked down, asbestos was discovered. A mid-level supervisor on duty came in to look at what occurred, reviewed the situation, and made sure that the asbestos was cleaned up and thrown in a dumpster - which is not the correct way to dispose of asbestos.

He then reported what he had done to a midlevel employee in the environmental section at the company (he was in manufacturing). One person from environmental came down, took a quick look around, but took no further action. Neither the manager nor the assistant in charge of environmental were alerted by either the supervisor or the lower level environmental employee.

Ultimately, word did get back to them after rumors spread throughout the workforce that there was asbestos contamination. The Vice-President of Human Resources wanted to fire the supervisor for not taking more action, and give a pass to the guy in environmental (the VP of Human Resources was tight with the Director of Environmental, and both were fond of the lower level environmental employee). How did we help the client work through the problem? Here are some thoughts:

It would have been easy - and disastrous - to be forthright about what we thought. Instead, to drain the meeting of unproductive emotion, we went to the grease board, diagramed the chain of command and the facts, and focused on something neutral - the facts on the board - as opposed to feelings.


12

If you will forgive us a rhyme, we framed without blame. Once we went through the facts, we said, "We don't exactly know how to say this, so we hope you'll help us, we've noticed that there may be some other people who should be held accountable." We expanded the client's frame-of-reference by asking, "If we only terminate the supervisor, and take no other actions, then someone, some day, may ask: "Should other people have been held accountable? Was that question asked during deliberations on whether to terminate the supervisor? If not, why not?" Ask whether all of the facts have been assembled. Are there other people to talk to? Do we have firsthand information? Are we relying on "daisy chain" information? If we discipline, what message is sent to employees? What message do we want to send? What effects will it have? Will it dissuade them from coming forward with these types of issues? What kind of behaviors do we want to encourage or discourage? Is there anything we can learn from this experience? What exactly is at stake from the decision?

It is imperative to see the big picture. Here are other examples:

The Beechnut Problem – We didn’t deliberately do anything wrong. Several years ago, Beechnut got involved in a scandal. There was an issue as to the purity of its apple juice. One of its senior executives received a memo from its Director of Research indicating doubts about the purity of the apple concentrate that Beechnut received from a supplier. What did they do? Nothing. In later court documents, it was shown that executives told the head of research that even thought it could not be proven that the concentrate was pure, the executives would only change suppliers if research conclusively proved it was impure. There was a much bigger picture here – in terms of brand-identity suffering, possibly injury to children, and paying for something that they weren’t getting. The warning: executives sometimes think that, because they have not deliberately fabricated something, they’re doing the right thing. But, as UPS executives like to say, “Knowledge requires action.” Same here.

KEY NO. 16: REFRAME THE ISSUES: STORYTELLING PART II Often, the best actions we can take to help our clients are to reframe the issues. To show that the glass is half full, not half empty. Here are some ideas on how to turn the negative into the positive. For corporate clients, prepare an after action report no more than a few pages - when concluding litigation, not to find fault but to figure out if the litigation exposed weakness that need to be shored-up, least best practices that need revisions, or least best employees requiring additional training or supervision. For example, after settling a Fair Labor Standards Act case, we meet with the CEO who reviewed our after action report suggesting, among other things, periodic review of exempt status, and he asked, somewhat skeptically, "So, you're telling me that this settlement was an inexpensive tuition. Is that what your telling me?" We said "yes." A thin smile crossed his lips, and he was off to the next corporate objective, leaving us with the useful concept of "inexpensive tuition." Or take the case of a client contacted by a government agency. The agency was investigating why a particular employee was denied his COBRA benefits after termination. It turns out the client had an absolute rule no exceptions allowed - whereby benefits were denied whenever an employee was terminated for a certain reason. We didn't think much of the rule, not only because there was not practical benefit to


13

the client, but also because we thought it might be susceptible to legal attack. The call from the agency only confirmed our fears, although the client ultimately dodged the bullet. It would have been natural, and easy, to have criticized the client for adopting a bad idea in the first place. This doesn't always involve an overtly critical comment - often, a slight change in the tone of voice, or body language, or a facial expression can just as effectively communicate your displeasure at the situation. But, instead of being critical, we made the following points: the ex-employee may have done us a favor; the regulations dealing with the situation are like hieroglyphics and hard to understand; and this allows us an opportunity to revisit our policy and consider revisions to it. KEY NO. 17: IT'S ABOUT FUNDAMENTALS Let's go to Vince Lombardi. His football insights are equally applicable to ethical decision making. After the Green Bay Packers suffered an embarrassing loss - tackles missed, passes dropped, kicks gone wide the team assembled waiting for wrath to descend upon them. And, they waited and waited and waited. Finally, Lombardi came in with a football in his hands. Holding it high above his head for all to see, he looked around and quietly said: "Gentlemen, this is a football. Let's try to remember that next Sunday." He then walked out. The lesson: the biggest messes result from the most fundamental mistakes. The Enron crisis was not caused because executives failed to grasp the complex. Rather, they refused to appreciate the basics. Here's an example. Several years ago, two companies were sued in an age discrimination case. We were representing one and a very fine and very experienced lawyer the other. While on a plane to Seattle for some preliminary interviews, our colleague was looking through some documents and loudly exclaimed, "Look at this! It's a memo by the Human Resources Director with the ages of the employees subject to termination, their tenure and compensation levels. It's a smoking gun. It must be destroyed. After all, it's not under subpoena or discovery requests." While I choked on my Chicken Kiev (or whatever delicacy was being served in coach that evening), I suggested (keeping with Dr. Johnson's wise counsel) that when depositions were taken that the HR Director might be asked if he prepared any written documents and that "Yes, but I destroyed them" could put us in a bad light.

This is a technique known as engaging in “prospective hindsight.” A somewhat more direct way is to take a hypothetical event and state it as a reality. Something along these lines:

Pretend it's two years from now. The Plaintiff has discovered that this document was destroyed. The Court has been informed. Explain what we tell the Court on how and why this has happened. Prospective hindsight comes in a lot of different colors. This is just one example. Here’s

some others from Laura Nash:

• What if I knew there would be a full audit of every decision I made two years from now?

• Or, what are the likely consequences of my decision one year down the road or three years down the road?

When a hypothetical event is related as a reality, people are far more creative at coming up with

reasons for why something could happen and the quality of their thinking improves dramatically. Oh, by the way, the next day at breakfast, our better-rested colleague agreed. Here's the point: whether you're a 30-year or 30-day lawyer, we all - every single person reading this article - can make the same mistakes unless we always return to the fundamentals.


14

KEY NO. 18: THE DIFFERENCE BETWEEN THE RIGHT WORD AND THE ALMOST RIGHT WORD

This quote from Mark Twain says it all. A slight shift in emphasis in communicating a difficult

issue to a client can make all the difference between the client accepting or rejecting the counsel being given. Clients are willing to accept bad news if it is presented in a way that is palpable, understandable, and confirms the lawyer is a mend and not an enemy. This arises in a variety of problem situations which are diagramed below: Problem Solution Example Describing difficulties with the case

Impart a shared sense of concern (a la President Clinton)

(1) Let the client know you are on the same side. For instance, use a word like "challenge," not "problem." (2) Here's another illustration: "The litigation risk with this type of case - and quite frankly, our great frustration with these cases - is that a jury can second-guess the employer's motivation, and if the jury determines that the [protected class] was a factor in the decision for termination, then the jury may award damages that exceed any logical or rational basis."

Telling the client an expected bad result

(1) and (2) Use of positive/negative sentences make difficult statements more palatable to hear (3) Focus on the law (4) and (5) Ease them into the news

(I) "While we relish the opportunity to try a hotly contested case (positive), we are also acutely aware of the dangers inherent in a jury trial I (negative); (2) "While we acknowledge the many arguments in our favor, we still face some indisputable and troubling facts"; (3) "When the facts are viewed through this legal filter..." (4) "We acknowledge that the jury will undoubtedly be composed of the peers of the plaintiff." (5) "As difficult as it is for me to say and you to contemplate..."

CEO is a terrible witness

Make flaws into virtues

"Many of the qualities which make Sue such a dynamic CEO may, however, make her come across to the jury as opinionated and rigid, when in fact she is decisive and self-assured."

Client who says "I wasn't thinking of his [sex] [race] [age] when I fired him and the plaintiff is focusing in on trivia."

An analogy is worth a thousand words

Use OJ. Simpson trial: "A typical plaintiff's tactic is, in fact, to focus a jury's attention on what we would consider irrelevant issues. This approach is not unlike the OJ. case, where his lawyers convinced the jury to ignore the blood the police found on the driveway and, instead, to focus on the minutiae of how it was collected and maintained."

Reluctant to settle Apply slight pressure

"We have a window of opportunity to resolve the case ..."; "We will not know how serious the plaintiff is on his offer, unless we test the waters..."; "of course, if the plaintiff continues to insist on an unrealistically high settlement demand, then the decision on whether to settle is essentially made for us..."


15

Client jumps to conclusions

Objectify the problem

Try phrases like: "there is a good reason for the hearsay rule ..." or "let's be careful about playing doctor" (a useful phrase in personal injury or disability discrimination cases) or "the lawyer in me..."

The messenger gets blamed

Objectify the bad news; distance yourself from the news

Try this: "While we hotly contest it, we know that the plaintiff will argue..."; "We can reasonably anticipate that the Plaintiff..."; Also using a grease board or video deposition clips to deliver the news will focus the client's attention on the message, rather than the messenger

Remember: How you say something is just as important as what you say. Because it is, remember the following: Avoid • You-based conversations • Shifting responsibility for communicating. • Meta Talk -

• Rather • Somewhat • It would seem • The truth is that • As a matter of fact • Are of the opinion that • For the purpose of

Embrace • Clarifying Acknowledging • Normalizing • Empathizing • Summarizing • Responding KEY NO. 19: AMBIGUITY AND ANGER ARE YOUR FRIENDS

Don't be afraid of anger and ambiguity in dealing with your clients. They are your friends; not

you're enemies. Everything a client tells us - and just as importantly, doesn't tell - and the order in which he or she tells it, reveals something. The client may tell you that her factory makes 10,000 widgets a day. There is an emotion attached to that fact, whether pride, or shame, or something else. Find it.

1. Ambiguity Ambiguity is an opportunity to find out what's really happening. Let's say you are meeting

with a client, you offer a solution, and the client says, "I'm not sure that's going to work." A defensive "Why not?" is a sure way to end a fruitful dialogue. Instead, take ambiguity as an invitation to probe - ask where the client sees some concerns and ask that he or she tells you more.

A corollary to this rule brings out another facet of human nature, namely, talking in conclusions. We don't even realize we do it, because conclusions are a convenient shorthand. But as a lawyer, don't assume that you understand another's shorthand or that they understand yours. Rather, lawyers must decipher imprecise words or concepts.


16

Here are some methods to use:

• When a client says that "X is the case," try a simple "What do you mean by X?" • Why do you say "X is the case"? • Why do you believe "X is the case"? Is it because of "A" or because of "B"? • Or ask for an example of what they're talking about.

2. Anger

Anger is a more difficult matter to handle, but it can be done. First, you need to remember that the case is not only about the case. It is also about something much more, especially in employment law. The psychologist Dr. Abraham Maslow described a person's hierarchy of needs. Clients have them too. They need to be acknowledged, emotionally heard (that is empathized with) and respected. Visualize the hierarchy as a triangle with these needs of the apex. Starting and ending with the technical solutions, which forms the triangle base, without considering the apex needs can be disastrous.

For instance, let's look at a meeting we had with a CEO of a new client. At the outset he said "All lawyers are leeches, interested only in padding their pockets, and you guys are not much better than the suing employee trying to shake me down." Our reaction? Rather than getting defensive or arguing with him, we acknowledged his feelings. He was heard, and empathized with, and the meeting, once we got down to the technical issues, went well.

Here are two other thoughts to keep in mind:

• When upset clients needs to be calmed, a rule of thumb, is "monkey see, monkey do."

Calmly reflecting back to the client what he is saying "what I hear you sayings is [x y z]. Are we right or is there something we are missing?" is an effective approach. Again, it acknowledges the client's concerns and opens the dialogue.

• Just because a client isn't hollering, doesn't mean he or she is not emotional. There was one

client with which we spent a long time developing three options on an employment termination issue. We favored the least risky, and the client seemed to agree. While going over the details, however, he leaned back, crossed his arms, and looked quizzical. Swallowing our pride and taking a chance, we asked, "even though you tell us you are satisfied with this solution, we are getting the feeling that you are not quite sold on it. Are we off base?" This gave the client permission to open up, he told us he wasn't happy with the solution, why, and we changed course. He was respected.

3. Presume Positive Intent

No one likes to be criticized, and when that criticism is coupled with anger, it's an unpleasant experience. The most important rule to remember is this: Presume Positive Intent. Here are some ways to do it: If someone angrily tells you after a meeting that they couldn't believe you said "x y z" in the meeting, your response is: "I could see how you may have misunderstood what I said. Let me try it again or differently." That takes the wind right out of their sails. So, as hard as it is to do, think the following to yourself:

• Even if we disagree, he is doing what he thinks is right. • Even is she is wrong, she is motivated by the same things I am, which is to win the

case. • Her intentions are as valid as mine, even though we disagree.


17

However, there will be times when things go wrong in a case, and there will be a time when it is your fault. There will be times when it is not.

Here are two approaches.

Approach 1: Approach 2: • Agree • Appreciate • Apologize • Acknowledge • Act • Assist KEY NO. 20: KNOW YOURSELF/KNOW OTHERS How do you know your communication style? Take this test. Rate each of the four phrases after the following Example: five statements on the following scale: I am likely to impress others as: 6=the word or phrase that best describes you. [4] A. Results Oriented 4=the phrase next most like you, [6] B. Relationship Oriented 3=the phrase next most like you, and [1] C. Practical Oriented 1 =the phrase least descriptive of you. [3] D. Action Oriented I am likely to impress others as: [___] A. Results Oriented. [___] B. Relationship Oriented. [___] C. Practical Oriented. [___] D. Action Oriented. The work I enjoy most is: [___] A. Results-oriented so that time and effort spent is justified. [___] B. Stimulating and thought-provoking with people I enjoy. [___] C. Well planned, organized, and with a clear purpose. [___] D. Challenging and likely to contribute something new. My time is important, so I want to make sure that: [___] A. What I do shows results today. [___] B. My decisions and actions are meaningful and have long-term value. [___] C. I plan carefully and follow the plan efficiently. [___] D. I select activities that are the most interesting and important to me. I feel most satisfied when I: [___] A. Get more done than originally planned. [___] B. Am in a position to help a friend. [___] C. Solve a problem by collecting information and thinking it through., [___] D. Can come up with a new idea to meet a challenge. I enjoy it when others see me as: [___] A. A person who can be counted on to get things done. [___] B. Someone who is trustworthy, sensitive, and creative. [___] C. Someone who is organized and efficient. [___] D. A person who loves a challenge.


18

ADD THE TOTALS FOR EACH A = [___] B = [___] C = [___] D = [___] Circle Your Highest Score Red Blue Yellow Green

What we've just gone through is called the Birkman. For more information, go to www.birkman.com. When we first meet a client, or are just getting to know then, seconds count. We don't change who we are, but we do focus on who they are and communicate accordingly. Red Green Yellow Blue Office Hints Formal

arrangement hones/achievements work stacked by type

Individual style motivational items chaos, very disorganized

Functional job-related items neat, very organized

Casual, open family, personal items lots of paper

Body Language Direct eye contact businesslike firm handshake

Solid eye contact friendly, smiles easily broad gestures

Indirect eye contact slow to smile closed gestures

Variable eye contact warm, casual open gestures

Speaking Style Direct, decisive short, conversations interrupts, to the point

Spontaneous, general tells stories, jokes talks more than listens

Deliberate, slow organized, logical asks detailed questions

Thoughtful, casual people stories questions, suggestions

Expectations Results bottom-line frankness, efficiency

Creativity enthusiasm, innovation novelty, adventure

Thoroughness detail, systematic accuracy, logic

Relationships trust loyalty friendly, personal

Focus Strength Objectives pragmatic confident assertive

Ideas imaginative creative enthusiastic unorganized unrealistic impractical

Process objective analytical thorough rigid indecisive impersonal

Feelings empathetic loyal, trustworthy persuasive overly sensitive internalizes avoids conflict

Best Approach Short conversation start with results provide choices be direct, concise

Allow time to talk show enthusiasm listen/discuss new ideas use testimonials

Provide written info. Allow time to review history/experience expect detailed questions

Face-to-face is essential get to know them emphasize relationship discuss needs

Decision-Making

Will decide on the spot if information supports decision.

Will decide on the spot if level of enthusiasm is high.

Will rarely decide quickly. Needs chance to review information and consider the decision.

Will rarely decide quickly. Needs chance to get to know you.


19

All of this is simply figuring out someone's needs and then devising a plan to meet them.

Want to learn more? Several companies let you take the Birkman test or others at a modest price, together with some training. Also, check out “The Color Code” by Taylor Hartman, which has practical, easy to implement advice on how to identify and deal with different personality types, or “Selling the Invisible” by Harry Beckwith, which provides thoughtful counsel, in a reader-friendly format, on meeting and exceeding client needs. Also, the “Trusted Advisor” by David Maister is a must read. KEY NO. 21: OPTIMISM GOES A LONG WAY

In his astute book, “The Art of Advice”, former Dean of the SMU School of Law, Jeswald W.

Salacuse, makes a telling point: an advisor whose advice is consistently negative is not as good as one who can explain the positive opportunities in a situation. A client will very quickly pick-up on this: the person who can see all of the negatives may be more educated, but the person who can see all the possibilities is more experienced. Here's what he says:

A pessimistic advisor is not generally the best advisor. Indeed, consistently negative advice is often an indication of inexperience. While formal education may have taught advisors what won't work, it's experience that teaches them what will . . .

Being optimistic is not being a Pollyanna; it is not adopting an ostrich-like attitude of self-delusion;

and it is not a willful refusal to see the obvious. The essence of optimism is developing and presenting options which will solve the client's problem.

Any lawyer can essentially "CYA" by telling a client to avoid exposure, and therefore not to do something. Clients do not need to pay for this - if the answer is black and white, then the client doesn't need us. Rather, it is up to the lawyer to develop options among the shades of gray. How do we go about doing this? Here's a simple formula: every time you say "this won't work," follow it up with a "(comma) but this will," or, better yet, keep this demarcation seamless, with your counsel on options twisted together like a pretzel with your admonitions. And speaking of a client's context, remember that the best communications are those who provide a positive context, helping to see a half-full glass. Try some of these:

• Talk about "meeting challenges," not "dealing with problems." • Instead of saying "yes, but" to an idea, use a connector to build on what the client says -

"yes, and." • Remind the client that often a challenge, as with the accountability example, is

"inexpensive" tuition compared to what could have occurred, and point out the lesson learned and how it can be put to use in the future.

A couple of caveats. First, this rule is not to be confused with telling the client what she or he wants

to hear. You can be both optimistic and honest. I recently spoke to a client about a tricky and undeveloped area of removal law. When he asked about our chances of success, I told him that "we have good arguments but the operative word is argument." Message delivered. KEY NO. 22: EVERY PROBLEM IS AN OPPORTUNITY The Chinese character for danger is also the character for opportunity . We, as lawyers, need to embrace this notion in dealing with clients, especially when the client makes an error in judgment. Let me give you an example.

Recently, a client said that it was contacted by a government agency. The agency was investigating why a particular employee was denied his health insurance benefits after termination. It turns out that the client had an absolute rule no exceptions allowed - whereby benefits were denied whenever an employee was terminated for a certain reason. I didn't


20

think much of the rule, not only because there was no practical benefit to the client, but also because I thought it might be susceptible to legal attack. The call from the agency only confirmed my fears, although the client ultimately dodged the bullet.

It would have been natural, and easy, to have criticized the client. This doesn't always involve an

overtly critical comment - often, a slight change in the tone of voice, or body language, or a facial expression can just as effectively communicate your displeasure at the situation.

Instead of being critical of the client, and lecturing on the law, I made the following points:

• The complaining ex-employee may have done us a favor. • The regulations dealing with this situation are like hieroglyphics and are hard to understand. • This allows us an opportunity to revisit our policy, and consider revisions to it.

KEY NO. 23: BE AUTHENTIC Finally, good communication is based on authenticity. You can't take another person's style and make it your own. Before the decisive battle of Midway, Admiral "Bull" Halsey was knocked out of commission by illness. Ray Spruance, his replacement, went to the hospital, asking him for advice. Halsey's blunt counsel: "When you're out there, don't play it the way you think I'd play it'; play it the way you think it should be played." Now that's communication, and, by the way, still good advice more than half a century later. KEY NO. 24: THE LAW ISN’T ALWAYS THE ANSWER Every single person reading this, or listening to what I'm saying, has probably heard at one time or another the following: "Can you prove it's legal, because if you can't, we're not doing it" and you go down one road - or "Can you prove it's illegal, because if you can't we're doing it" - and you go down a different road. But, often we need to consider more than the law.

Listen to what Jeffery Seglin notes in his book:

Abstaining from responsibility for making tough choices using the fear of litigation as a crutch is no real solution since we end-up making decisions that might indeed have good outcomes (or might have bad ones) without really knowing why we made this decision other than the fact that someone somewhere decided that that's the way it's done to avoid exposure.

A way to deal with the situation is to ask a client this: "If there were no laws dealing with

employment, what decision would you make regarding this employee?" Here are two hard truths: None of us, no matter how much we fervently desire, can avoid making decisions with ethical implications. And, as President John F. Kennedy observed in his Inaugural Address, "A good conscience is our only sure reward." But, for every hard truth, there is always a saving grace. Whether it's talking to colleagues about a tough decision or learning from an article or book - often suggested by the very same colleagues on making integrity-based decisions. At the end of the day, no one needs to go it alone.


21

BOOKS TO READ 1. Leading Quietly by Joseph Badaracco, Jr. 2. The Good, the Bad and Your Business, by Jeffery Seglin 3. Final Accounting by Barbara Toffler 4. Pipe Dreams by Robert Bryce 5. The Courageous Messenger by Kathleen Ryan 6. The Art of High Stakes Decision Making by J. Keith Mumighan 7. The Storytelling Factor by Annette Simmons 8. The Trusted Advisor by David M. Maister 9. Clients for Life by Jagdish Shent 10. Crucial Conversations by Kenny Patterson 11. Tongue Fu by Sam Horn 12. Difficult Conversations by Douglas Stone 13. Start With No by Jim Camp Effective Communication Skills for Scientific and Technical Professionals by Harry E. Chambers - This is a great book. As the title suggests, it is especially useful in dealing with those whose skills are more analytical, and less verbal. Listening: The Forgotten Skill by Madelyn Burley-Allen - This is a straight forward and user friendly book on the art of listening. There are self tests throughout the book which are valuable, including a listening assessment exercise. Dealing With People You Can't Stand: How to Bring Out The Best in People at Their Worst by Dr. Rick Brinkman and Dr. Rick Kirschner - An easy to read book, describing the ten specific behaviors that represent people at their worst, and how to deal with them. Resolving Conflicts at Work by Kenneth Cloke and Joan Goldsmith - A must read book on how to deal with the emotional issues that often arise in communication in the workplace. Difficult Conversations by Douglas Stone - A very fine work dealing not only with workplace communication but communication in general. It deals with one of the hardest issues in communication, namely, how to tell somebody something unpleasant. In the Company of Women by Patricia Heim - This book deals with how women communicate in the workplace, and especially with the challenges faced by female managers. Controversial, but well worth the read. Maximum Success: Changing the 12 Behavior Patterns that Keep You From Getting Ahead by James Waldrop and Timothy Butler - This book, written by two professors at Harvard Business School, identifies the 12 types of 90/10 employees: that is, employees who are great 90% of the time but awful the rest of the time. It gives advice on how to manage these employees, and not let them manage you. Now, Discover Your Strengths by Marcus Buckingham - This book by the Gallup Polling Organization has a simple premise: employees need to spend more time developing their strengths than fixing their weaknesses. Each book has a pin number that allows access to the Gallup organization website, where you can take a test (it runs about an hour), which will then tell you your top five strengths out of the 40 or so identified by Buckingham. This book then gives ideas on how to communicate effectively with employees who have certain strengths.


22

How the Way We Talk Can Change The Way We Work: Seven Languages for Transformation by Robert Kegan and Lisa Lahey - A very good book on why employees do or don't change, and how you can meet the challenge of dealing with employees in a changing work force. Get to the Point by Elizabeth Danzinger - A good book on effective communication. Harvard Business Review on Decision Making - A collection of articles on how decisions are made in corporate America. A great starting-off place. The Race Trap: Smart Strategies for Effective Racial Communication in Business and in Life by Robert L. Johnson. The Trusted Advisor by David Maister - A great book which all lawyers need to read.

Documents

EFFECTIVE CLIENT COMMUNICATION AND MAKING HARD DECISIONS ... · effective client communication and making hard decisions: the 25 keys to integrity based decisions michael p. maslanka