Tuesday, April 2, 2013
Intimacy?
“Intimate” might at first seem like a funny word to describe the in-house attorney’s relationship with his corporate client. But what is intimacy in the context of in-house lawyering? According to Dictionary.com: Intimacy is “a close association with or detailed knowledge or deep understanding of a place, subject, period of history, etc.”
So, intimacy is really quite an appropriate word to describe the important relationship an in-house lawyer has with his client. Because of our professional obligations, we cannot help but have a “close association” with our clients. As in-house lawyers, we also strive for a detailed and deep knowledge and complete mastery of our businesses.
When people ask me why I chose to work in-house, one of the reasons I offer is my desire for a higher level of intimacy with the client - a higher level than can be achieved as an outside lawyer. As an “embedded” legal executive, I am with the business people on a day to day basis. I sit with the top executives, participate in policy making meetings and on committees formed to address issues in various disciplines, attend marketing presentations and sales meetings and work closely with the purchasing, risk management, marketing, finance, audit, human resources, accounting departments and the board. But even more importantly, I have the opportunity to see the warehouse, tour the plant, visit the loading dock and the quality control labs. An in-house lawyer has a unique opportunity to learn the entire business from the bottom up.
Many companies today require executives to spend time in the manufacturing facility, at the retail store, on the production line, in the research lab, manning the grill or working some other front-line job to help them understand how the business operates. If your company does not do this, then you should be proactive about doing it yourself. Knowing the ins and outs of your business is essential in making you a better lawyer for the business.
When you know the business inside out, it is easier to: defend cases, draft contracts that better address the unique needs of your business, appreciate the human resource climate, understand the culture and know what is important to the business. Most importantly, it becomes much easier to be proactive and provide value in ways the business might not expect from their lawyer.
For example, a lawyer friend of mine from another company was called by the president of one of the operating companies he supports when a customer approached the president about jointly creating a new product. My lawyer friend's company is not an R&D company; it manufactures a low tech product sold on the commodity market. Because my friend is embedded in the business, he knows it very well. His clients, including the president, know how engaged he is and thus regularly consult him on a myriad of legal and non-legal matters. The president called him as soon as she hung up the phone with the customer. My friend sat in on the initial meeting with the business folks and the potential partner and was able to identify several very important potential pitfalls that were not even on the president’s radar screen. My legal friend helped craft an agreement that protected his company from the pitfalls as well as ensure proper ownership in the potentially profitable jointly developed product.
In short, the lawyer who knows his business is a better team member and a much more valuable asset to the company than a lawyer who does not. In order to be a good team member, the lawyer must be focused on cooperation and coordinate his effort with the group. Of course, a successful team member must understand how the team works and, ultimately, the final goal of the team. Becoming “intimately” involved with your business gets you and your team to the goal line and beyond.
Wednesday, March 20, 2013
Think
Think
(think) think (think) think (think)
think
(think) think (think) think (think)
Yeah, think
(think, think), let your mind go, let yourself be free.
(Aretha
Franklin – “Think”)
I once had the opportunity and privilege to hear
Charlie Wunsch speak to a group of legal professionals at a daylong conference
in Chicago. Charlie is the General
Counsel, Corporate Secretary and in charge of Legal and Government Affairs for
Sprint Nextel. Charlie struck me as a
fairly modest man, not one to herald his title or accomplishments to impress
people. Which, of course he certainly
has the right to do since he works for one of the largest telecommunications
companies in the world and has a terrific amount of responsibility. I mention his position only because it helps
to know his background when we consider his remarks.
Charlie spoke of the fast pace at which technology has
advanced over the years, reviewing how human communication has evolved from
pre-history communication of a few hundred feet (the distance at which the
human voice can be heard) to mail delivered by horse to crude telephone
communications all the way to instant communication from anywhere in the world
via the internet. I don’t have the space
to relate all of the wonderful examples he gave, but each was a fascinating
example of progress for that time. Let’s
just take notice of the fact that in today’s world, we can communicate
instantly with anyone in just about any place on earth and beyond.
What does the age of instant communication have to do with
lawyering? Well, an awful lot. With the age of instant communication comes
the expectation of instant answers. Clients
look at us as if we are the legal equivalent to the
internet. Google a question and wait a
few seconds for an answer. Well, we as
corporate lawyers know that providing counsel to a client requires careful
thought, analytical skills, judgment, experience, emotional intelligence to
interpret the data, context and other factors.
Lawyering is not only an acquired skill, but an art. The process of thinking requires us to use
all of the above mentioned qualities and roll them into an answer suitable for
our client. We can’t deliver well
thought solutions without the opportunity to “well think” them! We are not the legal equivalent of the
internet with a Google search page built into our systems.
I will paraphrase some of Charlie’s remarks on how this
affects lawyers. Change is too rapid and
profound today for lawyers to always be in reactive mode. Lawyers must not only anticipate change, but also the consequences of change
in order to be prepared to help our companies.
We have to help our clients navigate the changes using the very
technology that makes it harder to have the time to do the job right – by
taking away the time we need to THINK!
Charlie reminded the group that we have to force our clients
to give us time to think. Why? Because “It is our capacity to think
critically, creatively and clearly explain our reasoning, that gives our
service value. If you eliminate the
thinking time, you eliminate the value of those costly legal services.”
You would almost think that Aretha was singing about the
lawyer/client relationship when she sang:
“You need me and I need you (don't
you know). Without each other there
ain't nothing people can do. Think (think) think (think) think (think). ”
A very thoughtful lady that Aretha Franklin!
Wednesday, August 29, 2012
Courage, Influence and Civility*
Courage, influence and civility*
A few weeks back, I had the pleasure of attending an ethics program co-sponsored by DLA Piper and Major, Lindsey & Africa . Susan Lichtenstein (Hill-Rom), Stasia Kelley (DLA Piper) and Paul Williams (MLA) informed an attentive audience of what it is like to be in the boardroom when it comes time to make a very personal decision – whether to “press the button” that will effectively end your future with the company, if not your career.
In a nutshell, the program focused on the GC as trusted adviser, financial analyst, compliance officer and legal advocate. The panel discussed the business needs for a GC with multi-dimensional skill sets and what happens as a result – an increase in the number of circumstances in which the GC is faced with business/legal situations requiring ethical (and not just business or legal) considerations.
GCs are faced with balancing the need for creating trust and synergy with the business team against ethical obligations to ensure the company is behaving “properly” – meaning legally and, in some cases, “ethically”. How can a GC continue to build relationships with the business operation executives while also acting as the company’s moral compass, responsible for reporting ethical breaches to the board?
First, the GC must have an unwavering commitment to ethical conduct at all levels in the company. She must sow the seeds of a “culture of compliance” and nurture that culture throughout her tenure. This commitment must be unwavering, for it will no doubt be tested.
Second, she must not only talk the talk, but she must also walk the walk. Ethical considerations should be raised whenever an ethical concern presents. Ethical considerations should also be part of the decision matrix, so as to ensure consideration of the ethical implications of a decision, even if ethical concerns are not immediately obvious.
Third, the GC must make known her commitment to ethics to every board member, executive and line worker in the company. It must be communicated to the company frequently and regularly. GCs have influence within their organizations and should use it.
Fourth, she must have an excellent relationship with the board so that each member feels absolutely confident that if the time comes, she will press that button and make them aware of all serious issues affecting the company. More importantly, they will trust her judgment and follow her advice in rectifying the problem.
In thinking about how we might influence our organizations in the care and feeding of an ethical environment, often overlooked is how we might influence our outside lawyers to practice in an ethical and civil manner. Lawyers do not enjoy a reputation for being kind to one another. Often, clients expect us to act nasty, disrespectful and mean to our adversaries. Some clients even believe that a lawyer cannot possibly zealously represent a client unless they act in such a manner.
I believe in-house lawyers, and particularly GCs, are well positioned to work a change in the legal environment so that clients will learn to expect nothing less than the utmost in decency from their lawyers. In-house lawyers hire and pay firm lawyers. Firms listen to their clients. If we charge our outside team of lawyers with the responsibility to be civil, professional and yes, even polite – they will listen. I am absolutely convinced that if we reward professional behavior (with fees and more work) and discourage underhanded gamesmanship (by referring work to other firms), the legal world will change.
In-house lawyers have the responsibility to foster a culture of compliance and ethics within their own organizations. In thinking outside the box (extending her influence outside the company), the GC can extend her influence beyond a culture of ethics, to one of civility by and between the outside lawyers, as they zealously advocate for their clients.
Each of us must be able to look at ourselves in the mirror and be content with what we see. We must know that we have done our best to represent our clients zealously, professionally, competently and ethically and that we have conducted ourselves in a manner that reflects well on the profession we have chosen.
*Originally published on August 9, 2012 here:
http://h20cooler.wordpress.com/2012/08/09/inside-perspective-courage-influence-and-civility/
Saturday, March 10, 2012
Emotional intelligence — don’t forget the human element*
A lawyer friend told me a story last week about a case she had been working on. Turns out that years ago, one of the employees at her company was severely injured in a tragic plant accident while on the job in South Carolina. The case settled long before her tenure at the company began. Because of a bookkeeping snafu, the company continued to make payments for medical coverage for the injured worker for years after the settlement, payments that it had no obligation to make. Recently, upon discovering its error, the company decided to discontinue making the payments. My friend, the company lawyer, was tasked with communicating the decision to the former employee.
The former employee was well respected and very well liked. Her injury impacted many of the people with whom she worked as well as those in the administrative offices who handled the subsequent lawsuit, human resources issues and workers’ compensation claims. The company bent over backwards and went far beyond its legal obligations in assisting the employee at the time of the injury and, as it turns out, after the matter should have concluded with the settlement. Even decades later, people at the company who worked with the former employee tear up when discussing the case.
You might guess that it was difficult for my friend to manage the case because of the emotional elements surrounding the injury and the impact it had on the injured worker’s life. However, lawyers deal with many “emotional” issues and must separate themselves from the personal aspects of cases such as this one. She handled the matter as she would any other personal injury case – in a very business-like and professional manner. No problem there.
However, the real challenge came from within the company – from those who worked closely with the former employee. Because she was so well-liked, the emotional scars that remained were aggravated after all the years. My attorney friend experienced pushback from some of the employees with whom she needed to work to resolve the cessation of the gratuitous medical benefit payments. To her, it was simply a part of her everyday business/legal work. But to those with whom she worked, the case tore open long since hidden wounds and emotional trauma that evoked very emotional responses.
As in-house lawyers, we often deal with emotional issues. To preserve our sanity, we disassociate from the emotional elements of the matter so that we can make an objective legal decision. However, once we have done that, we must invoke our emotional intelligence skills in order successfully implement the recommended action, especially when working with others who may not be used to doing that. A lawyer’s “business as usual” manner may well be off-putting to those unaccustomed to turning off their emotions in this way.
In a situation such as this, to help ensure that such an emotionally charged task goes smoothly, the first thing one should do is reach out to those involved in the original case to get a handle on how the company dealt with the emotional issues at the time of the accident and the emotional impact that it had on the work force, paying particular attention to the people who were directly involved and their feelings at the time. Then reach out to those still with the company, and who would be assisting in effectuating the change, to assess their current emotional state regarding the incident. Clearly, as it turns out, they were still very much impacted by what had happened to the former employee. According to my friend, there may have been undue feelings of guilt associated with the accident and a general feeling of “there but for the grace of God go I” mentality. This may have accounted for the generous manner in which the matter was resolved in the first place many years ago. Whether these resurrected feelings are appropriate or not, they exist and must be taken into consideration when formulating a plan.
If you are tasked with carrying out such a charged assignment and you take the time up front to assess the emotional environment, you will be that much better able to implement a plan that accounts for the feelings of those who would be needed to assist in getting the job done and help them handle it without so much additional upset. In other words, you would empathize with those with whom the former employee worked, acknowledge their feelings and address the resolution of the matter in a proper tone and manner, taking into consideration their feelings about the matter, rather than adopting a “business as usual” approach. The objective would be the same but by accommodating the current employees’ feelings, you will make the job much easier for all involved and likely minimize pushback.
The lesson of the day is to be aware of the emotional impact your legal recommendation may have on your client base and communicate your advice so that it is received not only with an appreciative intellect but with a welcoming heart.
* Originally posted December 8, 2011
Wednesday, December 21, 2011
Inside Perspective: Balancing personal beliefs against corporate responsibility*
As in-house lawyers, we must be fair-minded, we must be good examples, we must be sympathetic and empathetic. For most of us, this is not so difficult. However, we live in a complicated world. The workplace is a very diverse place. In-house lawyers encounter diversity in every form: cultural, color, gender, physical ability, sexual orientation, ethnic, religious. How do we ensure that “we all just get along” without compromising our personal beliefs and moving the business goals of the company forward, all while protecting the company from legal risk?
I know the general counsel of a very large public company. On his desk is a Bible, on his wall is artwork with quotes from that Bible. Personally, I feel very comfortable in his office because I share in his beliefs. If I was an employee of this man, would I feel as comfortable if he had a Quran on his desk and Islamic art on his walls? In such a case it would be the responsibility of that general counsel to make me feel just as comfortable under the latter circumstances as I do under the former.
How does one practice one’s personal beliefs without “offending” someone who believes differently? In the corporate world, I do not wear my religion on my shirt sleeve, I do not preach or engage in religious discussions (unless invited to do so). To behave otherwise would not only be counter to the manner in which I share my religion with others outside the office, but could also arguably create exposure for the company by evidencing a perceived (not actual) prejudice in my way of thinking. Of all the offices within the corporate structure (except for perhaps Human Resources), the general counsel must demonstrate absolute freedom from any hint of bias for or against someone who is not like them.
On the other hand, should in-house counsel be relegated to a state of exhibiting absolutely no spiritual life whatsoever? That would be quite unfair to those whose beliefs require them to reach out to others who may be spiritually in need. How, then, do we as in-house counsel “practice” our religion? Just like the business situations we encounter daily, we have to find fair compromise, balancing two of the most important aspects of our lives (work life and spiritual life), walking a fine line between the permissible and the impermissible.
In many cases, people in our position offer “testimony” to their faith through the way they live their lives, their interactions with clients, their daily practice of the principles they adhere to, their efforts at instilling those principles (not the religion) into the culture of the business. In other words, through example.
There are so many issues dividing us today. My hope is that although we have diverse viewpoints, we look to the common moral threads running through each of our belief systems and, within the workplace at least, apply them. Make no mistake, I am not advocating that we act in a morally relative manner. Rather, we must respect each other’s belief systems, hold true to our own principles, and practice our own traditions while being sensitive to creating a perception of bias for or against one belief system or another.
*Originally published on December 23, 2010
I know the general counsel of a very large public company. On his desk is a Bible, on his wall is artwork with quotes from that Bible. Personally, I feel very comfortable in his office because I share in his beliefs. If I was an employee of this man, would I feel as comfortable if he had a Quran on his desk and Islamic art on his walls? In such a case it would be the responsibility of that general counsel to make me feel just as comfortable under the latter circumstances as I do under the former.
How does one practice one’s personal beliefs without “offending” someone who believes differently? In the corporate world, I do not wear my religion on my shirt sleeve, I do not preach or engage in religious discussions (unless invited to do so). To behave otherwise would not only be counter to the manner in which I share my religion with others outside the office, but could also arguably create exposure for the company by evidencing a perceived (not actual) prejudice in my way of thinking. Of all the offices within the corporate structure (except for perhaps Human Resources), the general counsel must demonstrate absolute freedom from any hint of bias for or against someone who is not like them.
On the other hand, should in-house counsel be relegated to a state of exhibiting absolutely no spiritual life whatsoever? That would be quite unfair to those whose beliefs require them to reach out to others who may be spiritually in need. How, then, do we as in-house counsel “practice” our religion? Just like the business situations we encounter daily, we have to find fair compromise, balancing two of the most important aspects of our lives (work life and spiritual life), walking a fine line between the permissible and the impermissible.
In many cases, people in our position offer “testimony” to their faith through the way they live their lives, their interactions with clients, their daily practice of the principles they adhere to, their efforts at instilling those principles (not the religion) into the culture of the business. In other words, through example.
There are so many issues dividing us today. My hope is that although we have diverse viewpoints, we look to the common moral threads running through each of our belief systems and, within the workplace at least, apply them. Make no mistake, I am not advocating that we act in a morally relative manner. Rather, we must respect each other’s belief systems, hold true to our own principles, and practice our own traditions while being sensitive to creating a perception of bias for or against one belief system or another.
*Originally published on December 23, 2010
Wednesday, November 9, 2011
Implicit Bias*
Implicit Bias (also known as “Unconscious Bias” or “Hidden Bias”) has been described as negative associations that ordinary people are found to harbor in relation to various social groups – even while honestly reporting that they regard themselves as lacking these biases. Stated another way – it is believing that one is impartial, but behaving as if one is not.
The information presented by those who advance the notion that implicit bias is real and present in our everyday lives suggests that an open mind and serious self examination is required in order for each of us to test our self awareness and assess our own implicit biases. At the end of this column, you will have the opportunity to do just that by linking to a fascinating study being conducted by researchers at Harvard University. If you take this short test, you will receive feedback informing you where you may harbor subconscious bias toward certain social groups. I guarantee that you will be surprised at the delta between your conscious thinking and the way your brain actually responds to the test stimuli.
Implicit bias studies have shown that doctors are more likely to prescribe life-saving care to whites; that managers are more likely to hire and promote members of their own in-group; police are more likely to shoot a black man carrying a cell phone than a white man; and that referees in basketball are more likely to favor players with whom they share a racial identity. If doctors, business people, police men and women, and presumably objective professional referees are subject to unconscious biases, it would seem unrealistic to believe that lawyers are immune. The good news is that implicit bias can be overcome through awareness, acknowledgement and conscious effort.
Understanding implicit bias is important to lawyers because, once understood, it becomes an important tool for the way we approach our day-to-day jobs. The Harvard study shows that Implicit Biases vary from person to person and that implicit attitudes are modified by experience. Once we understand that we may have a bias for a particular group or groups over another, we can attempt to manage it, check it at the door, when making decisions or giving advice that pertains to or affects that group or a person with that group, for example, providing HR counsel on a RIF or assessing the credibility of an accused manager during an investigation. We can also use it to aid us in moving to a certain result, for example, in picking a jury that will be biased in favor of our client.
ALFA International, a global network of independent business focused law firms, together with ACC Chicago, sponsored an ethics seminar on implicit bias last week. Because this is an intriguing topic, new to many lawyers, there was a full house. People walked away talking about what they had just learned.
The featured speaker was U.S District Court Judge Mark Bennett, who has made the study of Implicit Bias the keystone of his unique approach to jury instructions. He is the first judge in the country to instruct all of his juries on the role of implicit bias in decision making; the state of California just last week approved the use of his pattern jury instruction on implicit bias for use in California criminal trials.
Whether or not you accept the concept of implicit bias, one thing is for certain – the study of implicit bias is not pseudo-science or the advancement of the latest wacky social theory. This is real grist for the mind’s mill and hundreds of social science studies are conducted on this topic each year.
Here is the link to the Project Implicit test site: https://implicit.harvard.edu/implicit/ . I invite you to test your self-awareness of bias against the actual bias shown by your behavior. While not perfect or absolute, the test results should move one to serious self-reflection and to be open to the possibility that one’s thinking is not as objective as one might hope or believe. I would love to see your comments posted after you have taken the test.
*Originally published October 26, 2011
The information presented by those who advance the notion that implicit bias is real and present in our everyday lives suggests that an open mind and serious self examination is required in order for each of us to test our self awareness and assess our own implicit biases. At the end of this column, you will have the opportunity to do just that by linking to a fascinating study being conducted by researchers at Harvard University. If you take this short test, you will receive feedback informing you where you may harbor subconscious bias toward certain social groups. I guarantee that you will be surprised at the delta between your conscious thinking and the way your brain actually responds to the test stimuli.
Implicit bias studies have shown that doctors are more likely to prescribe life-saving care to whites; that managers are more likely to hire and promote members of their own in-group; police are more likely to shoot a black man carrying a cell phone than a white man; and that referees in basketball are more likely to favor players with whom they share a racial identity. If doctors, business people, police men and women, and presumably objective professional referees are subject to unconscious biases, it would seem unrealistic to believe that lawyers are immune. The good news is that implicit bias can be overcome through awareness, acknowledgement and conscious effort.
Understanding implicit bias is important to lawyers because, once understood, it becomes an important tool for the way we approach our day-to-day jobs. The Harvard study shows that Implicit Biases vary from person to person and that implicit attitudes are modified by experience. Once we understand that we may have a bias for a particular group or groups over another, we can attempt to manage it, check it at the door, when making decisions or giving advice that pertains to or affects that group or a person with that group, for example, providing HR counsel on a RIF or assessing the credibility of an accused manager during an investigation. We can also use it to aid us in moving to a certain result, for example, in picking a jury that will be biased in favor of our client.
ALFA International, a global network of independent business focused law firms, together with ACC Chicago, sponsored an ethics seminar on implicit bias last week. Because this is an intriguing topic, new to many lawyers, there was a full house. People walked away talking about what they had just learned.
The featured speaker was U.S District Court Judge Mark Bennett, who has made the study of Implicit Bias the keystone of his unique approach to jury instructions. He is the first judge in the country to instruct all of his juries on the role of implicit bias in decision making; the state of California just last week approved the use of his pattern jury instruction on implicit bias for use in California criminal trials.
Whether or not you accept the concept of implicit bias, one thing is for certain – the study of implicit bias is not pseudo-science or the advancement of the latest wacky social theory. This is real grist for the mind’s mill and hundreds of social science studies are conducted on this topic each year.
Here is the link to the Project Implicit test site: https://implicit.harvard.edu/implicit/ . I invite you to test your self-awareness of bias against the actual bias shown by your behavior. While not perfect or absolute, the test results should move one to serious self-reflection and to be open to the possibility that one’s thinking is not as objective as one might hope or believe. I would love to see your comments posted after you have taken the test.
*Originally published October 26, 2011
Sunday, October 30, 2011
Reaching the next generation lawyer
This year marks the 24th anniversary of my licensure to practice law. I think such a benchmark allows me to now refer to those currently in law school as the “next generation” of lawyers. I recently had the unique opportunity to get together with a group of these next generation lawyers to discuss some of the things that don’t necessarily come through in the classroom.
Josie Gough, the director of experiential learning at Loyola University Chicago School of Law, invited me and David Susler to meet with her class of students to share the insight that comes with a few years of real life experience. Our discussion mirrored some of the issues that I have written about in this column, the idea being to help the students benefit by hearing from experienced lawyers who could describe some of the landmines that many lawyers may encounter over the course of their careers.
Although many issues were touched upon, the focus always returned to the notions of integrity, honor, duty and humility around which our talk was based. I was truly impressed with the way the students genuinely embraced these concepts and seemed determined to absorb as much as possible in the short time we had together.
I was similarly impressed with the way that Professor Gough reaches out to the community of lawyers to bring their actual experiences to life for students who have had relatively little exposure to practicing law. By working in externships and meeting lawyers from the real practice world, the students gain snippets of wisdom accumulated over the course of many lifetimes of practice across a broad practice base – private practice, in-house, public interest, judicial and government. Professor Gough uses her extensive “Rolodex” not only to connect her students with terrific practical experience externships, but also to call on lawyers like Susler and me to provide insight into the “softer” skills, such as getting along with your boss, creating value for the company in the legal department and nurturing quality relationships with your clients.
She also creates the opportunity for her students to affirm that what she teaches them in the classroom is not just theoretical. They learn from “outsiders” that maintaining their integrity is essential to a successful career and not just flowery language that means nothing once they actually enter practice – that it impacts how they will be viewed by judges and other lawyers for the rest of their careers. They learn that they will soon occupy positions of leadership in their communities, that they will be sought out to solve problems, that there are many gray areas and advice is usually not black and white, that they might have to make a difficult choice between a client and “doing the right thing.”
They learn to understand that their chosen profession is indeed noble and that they must act with nobility (not arrogance) and with heartfelt humility. They learn it is important to treat everyone with the dignity they deserve simply because they are a member of the human race – from their support staff or the poor pro bono client to the partner in the corner office. They learn that they must use the gifts they have been given and the positions they have earned, to give back to the community and to further enhance the profession of law.
Susler and I were privileged to have been a part of Professor Gough’s experiential learning class. If you are afforded a similar privilege, as a member of this noble profession you are called to answer, to help ensure that the next generation of lawyers continues to value the privilege of practicing law and the position of influence that goes along with it.
Josie Gough, the director of experiential learning at Loyola University Chicago School of Law, invited me and David Susler to meet with her class of students to share the insight that comes with a few years of real life experience. Our discussion mirrored some of the issues that I have written about in this column, the idea being to help the students benefit by hearing from experienced lawyers who could describe some of the landmines that many lawyers may encounter over the course of their careers.
Although many issues were touched upon, the focus always returned to the notions of integrity, honor, duty and humility around which our talk was based. I was truly impressed with the way the students genuinely embraced these concepts and seemed determined to absorb as much as possible in the short time we had together.
I was similarly impressed with the way that Professor Gough reaches out to the community of lawyers to bring their actual experiences to life for students who have had relatively little exposure to practicing law. By working in externships and meeting lawyers from the real practice world, the students gain snippets of wisdom accumulated over the course of many lifetimes of practice across a broad practice base – private practice, in-house, public interest, judicial and government. Professor Gough uses her extensive “Rolodex” not only to connect her students with terrific practical experience externships, but also to call on lawyers like Susler and me to provide insight into the “softer” skills, such as getting along with your boss, creating value for the company in the legal department and nurturing quality relationships with your clients.
She also creates the opportunity for her students to affirm that what she teaches them in the classroom is not just theoretical. They learn from “outsiders” that maintaining their integrity is essential to a successful career and not just flowery language that means nothing once they actually enter practice – that it impacts how they will be viewed by judges and other lawyers for the rest of their careers. They learn that they will soon occupy positions of leadership in their communities, that they will be sought out to solve problems, that there are many gray areas and advice is usually not black and white, that they might have to make a difficult choice between a client and “doing the right thing.”
They learn to understand that their chosen profession is indeed noble and that they must act with nobility (not arrogance) and with heartfelt humility. They learn it is important to treat everyone with the dignity they deserve simply because they are a member of the human race – from their support staff or the poor pro bono client to the partner in the corner office. They learn that they must use the gifts they have been given and the positions they have earned, to give back to the community and to further enhance the profession of law.
Susler and I were privileged to have been a part of Professor Gough’s experiential learning class. If you are afforded a similar privilege, as a member of this noble profession you are called to answer, to help ensure that the next generation of lawyers continues to value the privilege of practicing law and the position of influence that goes along with it.
Saturday, October 22, 2011
Emotional Intelligence
“…the subset of social intelligence that involves the ability to monitor one’s own and others’ feelings and emotions, to discriminate among them and to use this information to guide one’s thinking and actions” Peter Salovey and John D. Mayer, “Emotional Intelligence”, 1990
A high Emotional Intelligence Quotient, or EQ, is an essential element of a successful lawyer’s personality. This is readily apparent from the definition set forth above. Some scholars believe that one’s EQ is set at birth while others believe that Emotional Intelligence can be learned and developed. In either case, breaking down the several elements that make up the EQ helps one to better understand the concept of EI. When one is aware of the various factors that enter into the EQ, one can work to harness the insight gained and enhance the ability to interact with the client.
As is the case in traditional psychological sciences, there are several schools of thought that address the concept of EI. I will look at the model posed by Salovey and Mayer in their 1990 article “Emotional Intelligence.”
Salovey and Mayer break down EI into four basic elements: (1) Perceiving emotions; (2) Reasoning with emotions; (3) Understanding emotions; and (4) Managing emotions. In the context of our profession, it is very important for us to be in tune with the emotions of our clients.
You might wonder why someone’s emotional state is so important in our delivery of legal advice. It is important to remember, while our client is the company, the company is made up of people. People cannot be separated from their emotions. As people and employees, they may have concerns about their job performance, the decisions they have made that are now being questioned (or are going to make based on your advice), the mistakes they may have made (or are perceived to have made) and impact they are having on the business. People also have lives outside the company. A sick wife, child or parent, financial problems, major life decisions – all have an impact on the emotional well being of the individual and hence impact the manner in which they address the business problem at hand and in turn the manner in which you provide counsel.
As lawyers, once we have a sense of the emotional state of our client, we need to understand the root of that emotion. Is it business related, or personal in nature? Does it revolve around you and the advice you have given in the past and anticipation about what advice you might give now? Or, does it involve someone else in the business? What is the client’s relationship with that person? What is your relationship with that third person and with the client?
The most important aspect of the Salovey and Mayer model for you to consider is how to deal with the knowledge and insight you have gained into your client’s emotional state. This is the real test of your EQ. Those lawyers who are successful are able to make an accurate assessment of what they are dealing with and react with an approach that is complementary to the given situation.
My friend Jenifer Robbins, General Counsel at FPL Advisory Group, summed up lawyers’ EQ in one word – “Empathy”. The ability to relate to your client on an emotional level is absolutely essential for the successful corporate attorney and business person.
As you approach your daily activities, take a moment to think about those with whom you are interacting and try to gauge their emotional state, think about why they might be feeling the way they do, and take into consideration their perspectives and emotional state as you interact with them.
“Human behavior flows from three main sources: desire, emotion, and knowledge”
Plato
Saturday, October 8, 2011
The Golden Rule
The Golden Rule, also known as the ethic of reciprocity, in its various manifestations and restatements over thousands of years forms the basis for almost every culture in human history. Why then is it so hard to abide by this seemingly simple rule? More importantly, why is it so hard for lawyers to practice it?
We are duty bound to zealously represent our clients. Some lawyers treat this duty as a license to use every dirty trick in the dirty lawyer book to accomplish the client goals, as long as those tricks don’t technically violate a rule or cross an ethical line. Lawyers are human beings and as such are not immune to moral and ethical dilemmas. All of us, lawyer and non-lawyer, face choices every day. Those choices have consequences – good and bad. Many times, the prospect of personal or professional gain distracts us from making the right choice – the choice that we would want our similarly situated colleagues to make were the roles reversed.
Practicing the Golden Rule in our personal and professional lives should be the very essence of what it is to be a lawyer. But, how do we reconcile our ethical obligations to our client with the universal of the Golden Rule? That is somewhat of a trick question as I do not think they are necessarily at odds.
Lawyers have a system of rules governing the substance of what we do every day (statutes, regulations, court rules, case law) as well as ethical rules which govern our conduct. When we play in the lawyering space, we play knowing that these rules are in place – we accept them as a given, something that comes with the privilege of practicing law. Smart lawyers know and understand the rationale for these rules and do their best to mind both the spirit and the letter of the law.
Part of what it means to act zealously is to work to test and sometimes change the law. In order to do this, we sometimes have to advance arguments that might seem specious to some, valid to others. In addition to the law, lawyers must deal with people. People are a part of everything we do. Our clients provide us with strategic business plans, advertising copy, lists of people affected by reductions in force, contracts and the facts in litigation matters. When one understands the fluid nature of the law and that facts are recollected by people with differing perspectives of what occurred, there is almost always room for legitimate arguments to be made. However, making legitimate arguments is a far cry from manipulating the system, committing mischief, playing dirty or treating others poorly. There is never a legitimate excuse for failing to practice the ethic of reciprocity, the Golden Rule.
As lawyers, we should first and foremost represent our clients to the best of our ability. This does not imply taking cheap shots at opposing counsel or making frivolous arguments. Rather, implicit in this duty is the responsibility to act within the bounds of the rules set in place by the authorities that govern our practice. As a profession with a high calling, it is also our duty and responsibility to put ourselves into the position of the lawyer (and the client) on the other side of the matter and act according to the principles of the ethic of reciprocity. Respect that lawyer and her client as you expect to be respected. Treat the lawyer and her client the way that you expect and deserve to be treated. Do not be underhanded, do not lie. Abide by the Golden Rule in whichever manifestation you recognize it.
“…Love your neighbor as yourself.”
Leviticus 19:18
We are duty bound to zealously represent our clients. Some lawyers treat this duty as a license to use every dirty trick in the dirty lawyer book to accomplish the client goals, as long as those tricks don’t technically violate a rule or cross an ethical line. Lawyers are human beings and as such are not immune to moral and ethical dilemmas. All of us, lawyer and non-lawyer, face choices every day. Those choices have consequences – good and bad. Many times, the prospect of personal or professional gain distracts us from making the right choice – the choice that we would want our similarly situated colleagues to make were the roles reversed.
Practicing the Golden Rule in our personal and professional lives should be the very essence of what it is to be a lawyer. But, how do we reconcile our ethical obligations to our client with the universal of the Golden Rule? That is somewhat of a trick question as I do not think they are necessarily at odds.
Lawyers have a system of rules governing the substance of what we do every day (statutes, regulations, court rules, case law) as well as ethical rules which govern our conduct. When we play in the lawyering space, we play knowing that these rules are in place – we accept them as a given, something that comes with the privilege of practicing law. Smart lawyers know and understand the rationale for these rules and do their best to mind both the spirit and the letter of the law.
Part of what it means to act zealously is to work to test and sometimes change the law. In order to do this, we sometimes have to advance arguments that might seem specious to some, valid to others. In addition to the law, lawyers must deal with people. People are a part of everything we do. Our clients provide us with strategic business plans, advertising copy, lists of people affected by reductions in force, contracts and the facts in litigation matters. When one understands the fluid nature of the law and that facts are recollected by people with differing perspectives of what occurred, there is almost always room for legitimate arguments to be made. However, making legitimate arguments is a far cry from manipulating the system, committing mischief, playing dirty or treating others poorly. There is never a legitimate excuse for failing to practice the ethic of reciprocity, the Golden Rule.
As lawyers, we should first and foremost represent our clients to the best of our ability. This does not imply taking cheap shots at opposing counsel or making frivolous arguments. Rather, implicit in this duty is the responsibility to act within the bounds of the rules set in place by the authorities that govern our practice. As a profession with a high calling, it is also our duty and responsibility to put ourselves into the position of the lawyer (and the client) on the other side of the matter and act according to the principles of the ethic of reciprocity. Respect that lawyer and her client as you expect to be respected. Treat the lawyer and her client the way that you expect and deserve to be treated. Do not be underhanded, do not lie. Abide by the Golden Rule in whichever manifestation you recognize it.
“…Love your neighbor as yourself.”
Leviticus 19:18
An Opportunity to Get to Know Each Other
I had the good fortune to meet a very nice young lawyer today, the kind of lawyer who will make a big difference in the lives of many people for generations to come.
Sam Finkelstein is the founder and CEO of Legal Prep Charter Academies. LPCA is a legal-themed charter high school approved to open in the Chicago Public School System in the fall of 2012. It will offer a college prep curriculum in a very high-quality learning environment in a high need community in Chicago.
I am excited about this new Chicago public school for many reasons. Too many in fact to address in this column. So for today, I will focus on only one – the “diverse” school population served by the school and the opportunities such diversity presents to lawyers who are not used to working with such populations. I have seen or heard various statistics from several sources that indicate that by the middle of the 21st Century, “diverse” individuals will make up 50 percent of the U.S. population. To many people this may be a shocking statistic, but it is well accepted as a realistic estimate of our future ethnic/cultural make-up. So for those who find this an uncomfortable statistic, I suggest a retooling of mindset in order to be successful in our “new” world.
A good friend of mine related to me that he (like many of my colleagues in the law) was raised in a middle class, white, suburban, Christian community during the 1960s and 1970s. To him, this was America. The only “diversity” he experienced was between Irish, Germans, Polish, Italians, Catholic and Protestants (and various mixtures of those particular groups). Once in a while there might be an Asian or Asian Pacific person who crossed his path. So, while this was a diverse group in one sense, in another it was very homogenous.
My friend met his first black person in college as well as his first Jewish person (at a Catholic university). As he told it, these people were unfamiliar to him and he did not know how to relate to them. Not only had he never met people like this, but what he “knew” about them from others was generally negative. As one might guess, he avoided them as anyone might do when confronted with an uncomfortable situation.
What does any of this have to do with the latest charter school to be approved by the CPS system? The lawyer community is going to be given the opportunity to step up and assist the school as it accepts its first class of freshmen next year, the graduating “Class of 2016.” We will be given mentoring, teaching and other project based opportunities.
We must take advantage of these opportunities so that we can get to know the students in these programs. We must let them see who we are and learn who they are. We need to teach each other about each others’ backgrounds, our respective upbringing, our neighborhoods and home life. People will open up if given an emotionally safe environment that encourages openness and sharing of sometimes uncomfortable and unfounded preconceptions about each other. All participants will learn about each other. Misconceptions, prejudgments and false stereotypical characterizations of each other will dissolve.
The people who participate will learn that despite their differences, we are all more alike than different. By getting to know people who are “different,” who come from a different place, socially, culturally, financially and geographically, walls are broken down and bridges built – one person, one mentor/mentee relationship at a time. People begin to see that yes, there may be differences in speech, food, skin color and so on, but also that they really aren’t that different in their core – they are human beings wanting to provide for their families, desiring good education and the opportunity to excel.
When we come to this level of understanding, we no longer avoid each other or walk on the other side of the street. As lawyers, as leaders of our business and neighborhood communities, we are called to take a leadership role in this process. The new Chicago Legal Prep Academy and people like Sam Finkelstein will provide us an opportunity to do so.
Sam Finkelstein is the founder and CEO of Legal Prep Charter Academies. LPCA is a legal-themed charter high school approved to open in the Chicago Public School System in the fall of 2012. It will offer a college prep curriculum in a very high-quality learning environment in a high need community in Chicago.
“…Legal Prep will focus on the skills that all great lawyers possess: excellent written and oral communication, critical thinking, problem solving and advocacy…While not all of our students will go on to be lawyers, all students will gain an understanding and respect for the law. Students will give back to their communities through scheduled service projects. Every student will be required to gain admittance to college in order to graduate from Legal Prep.” (Emphasis as in original) Legal Prep Mission Statement
I am excited about this new Chicago public school for many reasons. Too many in fact to address in this column. So for today, I will focus on only one – the “diverse” school population served by the school and the opportunities such diversity presents to lawyers who are not used to working with such populations. I have seen or heard various statistics from several sources that indicate that by the middle of the 21st Century, “diverse” individuals will make up 50 percent of the U.S. population. To many people this may be a shocking statistic, but it is well accepted as a realistic estimate of our future ethnic/cultural make-up. So for those who find this an uncomfortable statistic, I suggest a retooling of mindset in order to be successful in our “new” world.
A good friend of mine related to me that he (like many of my colleagues in the law) was raised in a middle class, white, suburban, Christian community during the 1960s and 1970s. To him, this was America. The only “diversity” he experienced was between Irish, Germans, Polish, Italians, Catholic and Protestants (and various mixtures of those particular groups). Once in a while there might be an Asian or Asian Pacific person who crossed his path. So, while this was a diverse group in one sense, in another it was very homogenous.
My friend met his first black person in college as well as his first Jewish person (at a Catholic university). As he told it, these people were unfamiliar to him and he did not know how to relate to them. Not only had he never met people like this, but what he “knew” about them from others was generally negative. As one might guess, he avoided them as anyone might do when confronted with an uncomfortable situation.
What does any of this have to do with the latest charter school to be approved by the CPS system? The lawyer community is going to be given the opportunity to step up and assist the school as it accepts its first class of freshmen next year, the graduating “Class of 2016.” We will be given mentoring, teaching and other project based opportunities.
We must take advantage of these opportunities so that we can get to know the students in these programs. We must let them see who we are and learn who they are. We need to teach each other about each others’ backgrounds, our respective upbringing, our neighborhoods and home life. People will open up if given an emotionally safe environment that encourages openness and sharing of sometimes uncomfortable and unfounded preconceptions about each other. All participants will learn about each other. Misconceptions, prejudgments and false stereotypical characterizations of each other will dissolve.
The people who participate will learn that despite their differences, we are all more alike than different. By getting to know people who are “different,” who come from a different place, socially, culturally, financially and geographically, walls are broken down and bridges built – one person, one mentor/mentee relationship at a time. People begin to see that yes, there may be differences in speech, food, skin color and so on, but also that they really aren’t that different in their core – they are human beings wanting to provide for their families, desiring good education and the opportunity to excel.
When we come to this level of understanding, we no longer avoid each other or walk on the other side of the street. As lawyers, as leaders of our business and neighborhood communities, we are called to take a leadership role in this process. The new Chicago Legal Prep Academy and people like Sam Finkelstein will provide us an opportunity to do so.
For more on Chicago Legal Prep Academy click here: http://www.legalprep.org/
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