Cheap is OUT; Value is IN: Communication and Trust Make it Happen

I have learned that trying to guess what the boss or the client wants is the most debilitating of all influences in the creation of good advertising.

Leo Burnett

I took a bit of liberty in using Mr. Burnett’s quote, applied to the advertising industry.  But the concept, if a word or two is changed out, applies just as well to the attorney/client relationship.  I have learned that trying to guess what the boss or the client wants can be a most debilitating influence in the creation of a healthy attorney/client relationship.

So what does the in-house lawyer client want from her outside counsel? In-house lawyers want VALUE for their money, not cheap fees.  But what does it take to deliver value to an in-house team of lawyers, especially a small law department with little in the way of benchmarking tools and fancy matter management systems?

Upon arrival at a new company, a good in-house lawyer takes some time to learn the business.  The newly retained outside lawyer should follow the in-house lawyer’s lead and do the same. The general counsel should expect the outside lawyer to research the company as much as possible using public sources, then spend some time with the general counsel to learn how she does business; gauge her interests, plans and strategic goals for the department; learn where she (and her department) fit into the business; learn how outside counsel has been used in the past; and find out where she sees the future of the inside/outside “partnership.”

Then it is time to learn how the actual business operates - what does it do, how does it do it?  What are the business weaknesses and where does potential legal exposure lurk? The general counsel should introduce the outside lawyers to the key players in the organization. By this I do not necessarily mean the C-Level folks or even vice presidents. Rather, the general counsel should introduce outside lawyers to the people with whom the outside lawyers will regularly work on matters. The small department lawyer must leverage the business resources to provide the needed information to the outside people so that her day is spent performing legal work, not gathering documents and performing administrative tasks to keep the outside lawyer busy. 

Integral to creating a relationship based on value is developing a protocol for communication between the outside and inside legal teams, one that may include the business people. Word of caution: do not open the floodgate by inviting the business client to call the outside lawyer “any time they have a question.” Your outside legal team will be on the phone constantly with your business people and they WILL bill this time.  So, the inside team should always serve as the conduit for contact with the external legal resources. Open communication will serve the general counsel well in several ways:  She will be personally (or through her team) aware of potential legal issues developing; she will have an opportunity to put an internal resource on the problem right away to try and resolve it before it requires expertise or time commitment beyond that available to her via in-house sources; she will be aware of the matters that her team is addressing; and, billings will be monitored, controlled and minimized. 

A very important element for a value based inside/outside relationship is the development of trust.  Trust is gained on both sides through positive day to day, or issue to issue, experiences. Each side of the relationship must be wholly open and communicative about their thoughts, concerns and expectations. There is a social element to building trust as well. There is nothing wrong with spending down time with your outside firms. However, it would be terribly foolish to compromise your decision making on behalf of your client due to the social interaction you have with your outside firms. Lawyers, though, are particularly adept at keeping business and pleasure separate to ensure such compromises do not take place.

  

As a legal matter develops, it can change, the expectations, goals and expected outcomes and means to the end may need to be adjusted as a result. Neither side should bury their respective heads in the sand and avoid uncomfortable conversations. For a healthy, long-term relationship, expectations and deliverables must regularly be updated to reflect changing circumstances.

 

In closing, let me reiterate the most important points mentioned above – communication with and education about the client, about how the client operates, about expectations and about changing game plans.  Following these elementary rules will go a long way in developing and nurturing a valuable, long term, trusting relationship.

Intellectually Honest Discourse

I love a good argument.  There is almost nothing better than stretching your mind while engaged in an open and honest discussion with someone who views things differently than you do.  It is most fun when engaged in the so-called taboo subjects that are important in a big picture sort of way, such as religion and politics.  These topics evoke deep emotion in people and make the challenge of intelligent and honest discourse all the more interesting.

I have a very good friend who does not share my religious beliefs or my political views.  One might describe the two of us as polar opposites – 180 degrees apart.  The interesting thing about our relationship is that, because of a lot of intellectually honest and intelligent discussion, we seem to have influenced each other on certain matters to within 45 degrees of the other.  In other words, because we are able to discuss very controversial and emotional issues that cut to the very core of our  belief systems in an honest, unemotional and respectful manner, we have brought each other around a little bit to the other’s way of thinking.

The two of us have compromised in the best sense of the word, not falsely by claiming to be in agreement for the sake of keeping peace, but having been truly moved to a new way of thinking about the issue.  This is a wonderful experience.  It is only possible if each of us open our minds to the possibility that we may not be absolutely right about everything all the time.

Having meaningful discussions requires openness, vulnerability, respect and a true and pure willingness to contemplate the argument presented by the “opposing party.”  There can be no sarcasm, no red herrings, no manipulation.  Raw honesty is required.   This is easy to do because there is no end game except enlightenment.  There is no case to win or lose, there is only the opportunity to become smarter – if not about the issue at hand, about how your “opponent” thinks.  Knowing how another who thinks differently than you approaches and analyzes issues will also make you smarter, as you experience a different way of thinking that will help you down the line in other circumstances where there is an end game.

In the “real” world, it is not always easy to be so open and honest about the way one thinks.  As lawyers, we negotiate to get our way.  We start way over here, hoping to end up over there.  We've all played the game, each side makes outrageous demands expecting the other side to do the same.  So we adjust our demands based on the expectations we have of where the other side wants to end up until eventually, after the expenditure of many resources, we end up close to where each side thinks they should be.  Each side walks away believing they got the short end of the deal, grumbling that the other side acted unfairly, complaining about the cost and waste of time, but happy to be done with the emotionally taxing process.  This scenario is played out every day across the world among lawyers, car salesman, commodity vendors, politicians, parents and children, and so on.  This is not the intellectually honest and intelligent discourse of which I speak at the beginning of this column.

Acknowledging the difficulty of acting open minded in an adversarial situation, I invite you as in-house counsel, to try a more open approach with your clients.  Say what you are really thinking, be open to viewing the matter from the perspective of the business person.  Allow yourself to be thoughtfully persuaded by the business to a different way of thinking.  It might not change your legal advice, but it will make you a better lawyer

In Defense of the Older Worker

“How to Bullet Proof Your Career in Your 40s and 50s.” This is the title of an ACC Chicago Chapter Program attended by well over 90 in-house attorneys at the East Bank Club in Chicago. When I heard the title I questioned why, in a lawyer’s prime years, must she think about bullet proofing her career just because she turns 40?

I have always believed, and I am confident that I am absolutely correct, that we become better lawyers with age. Of course this is not simply due to age. Age is a measure of time, not ability. However, as we move through time, we continue to add to our experiences, legal and otherwise. This naturally leads to more personal observations, broader perspectives, situational experiences with outcomes good and bad, substantive and practical knowledge or what I dare to sum up in one word – wisdom.

What is wisdom? The ability to discern or judge what is true, right or lasting, insight, common sense, good judgment, the sum of learning through the ages (Dictionary.com). Over the course of a career, a lawyer is involved in hundreds of situations in which people at various levels within an organization rely upon her to exercise good judgment, avoid pitfalls, maximize profit, provide insight, reduce risk, counsel, guide, sometimes cajole and always protect them from harm. There is no substitute for these experiences in terms of gaining wisdom. No book learning can take the place of actual hands on experience. So then, wisdom is an extremely valuable asset for an in-house attorney to offer her client.

The following words capture the essence of this value:

And if riches be a desirable possession in life, what is more rich than Wisdom, who produces all things? And if prudence renders service, who in the world is a better craftsman than she? … Again, if one yearns for copious learning, she knows the things of old, and infers those yet to come. She understands the turns of phrases and the solutions of riddles; signs and wonders she knows in advance and the outcome of times and ages. Wisdom 8:5-8

Generally, I would guess that practitioners of most occupations benefit from years and years of experience. Who doesn't feel better as they get on the plane when the pilot has a bit of silver in her hair, or when wheeled into the operating room, the surgeon has a slight grandfatherly appearance? But at the risk of offending fellow professionals, lawyers seem particularly well suited to becoming better with age. Of course, age does not equal wisdom, but it suggests it. One can rarely achieve the same level of wisdom without the passing of time as with it, the more the better.

So, I am truly perplexed why any potential employer would look at a seasoned lawyer and believe for a even a moment that she is “too old.” Rather, I would expect that the hiring committee would welcome a bit of silver in the hair, a few wrinkles, an age spot or two. I cannot help but to cite from the Bible once again to make the point:

A great number of wise men (seasoned in-house counsel) is the safety of the world (corporate client), and a prudent king (CEO), the stability of his people (shareholders); so take instruction from my (GC) words, to your profit. Wisdom 6:24-25

Now those are wise words!

Humility

Humility - the quality or condition of being humble; modest opinion or estimate of one's own importance, rank, etc.  Dictionary.com

How can an in-house counsel balance this most important of virtues with her efforts to build confidence in her client that she is trustworthy, her advice competent and her leadership and guidance effective?   Doesn't an effective lawyer have to demonstrate assertiveness (even aggressiveness), boldness, strength and confidence to meet the expectations of her client?

The answer is yes – she must exhibit these traits, but I suggest it must be done from a perspective of humility.  A true humble nature residing in the heart of the lawyer will do much more to build a strong relationship with her clients and help her serve the business more effectively.  To be clear, I do not mean to confuse being humble with being hesitant, reluctant or afraid or in any way lacking in confidence.

  

There is a sure air of confidence and a certain je ne sais quoi surrounding people who are highly effective at what they do, yet are self-effacing.  Jim Collins, the author of “Good to Great”, a recent management book about eleven of the most successful companies in the United States, says, “There is a direct relationship between the absence of celebrity and the presence of good to great results.”  There are many reasons for this according to Collins, but I want to focus in this short space on why humility is a necessary element of success. 

As you contemplate the level of humility you reflect onto others, think about how you view this trait in your peers and colleagues.  Are you motivated by clients or company leaders who are inconsiderate, egotistical, bombastic, grandiose?  Do you champion their cause, give them the benefit of the doubt when challenged, support their initiatives wholeheartedly and honestly?  Or, do you find yourself aligning with people within your organization who are kind, gracious, self-effacing, understated, all the while being highly effective?  I believe the answer is obvious, at least for me.

 

The in-house lawyer has the challenge of performing under the client’s perception of what a lawyer should be (often not a flattering image of the lawyer) and maintaining her professionalism and integrity.   I believe that this can be done by maintaining a servant perspective, reflecting modesty and respect for others and their opinions, but standing strong (respectfully) on issues for which there is no compromise.  None of us have all the answers to every clients every question and we shouldn't act like we do. 

To be effective a good lawyer must be assertive, confident, bold, decisive, and at times strong-willed, aggressive, forceful and sometimes obtrusive.  In doing so she must not give up her kindness, modesty, politeness, professionalism, integrity, respect for others, acknowledgement of authority and understanding that she is not perfect, in a word – humility.  This is a tough balancing act for the in-house counsel.  I encourage you to think and reflect about why humility might be a good thing for you to consider as you approach your clients.    

It takes Great Courage to Do the Right Thing

“Courage is rightly esteemed the first of human qualities... because it is the quality which guarantees all others.”

Winston Churchill

I wrote a column a while back in which I discussed a difficult decision that might one day be faced by every general counsel – whether to “press the button” that could kill their career for the sake of doing what is right or to preserve their future by towing the company line (Courage, Influence and Civility).  Reflecting on this column triggered memories of a past experience at my former company.  In 2002, Spiegel, Inc. was experiencing a perfect storm – SEC compliance failures, alleged fraud on the part of the directors (who have denied any wrongdoing), problems with the company's credit issuing bank and the secured assets it leveraged to generate cash, issues with its lenders and breached loan covenants, a crashing retail environment and defaulting credit card holders. 

I had the privilege of working for a general counsel who walked the walk when faced with the “press the button” decision.  My personal commitment to ethical behavior was affirmed and strengthened through my mentor’s example. 

When Bob Sorensen came to Spiegel in June 2001, it was to be the capstone of a very successful legal career.  He would end on a high note as the GC of a Chicago institution, a grand catalog company with national retail operations (Eddie Bauer) and one of the most lauded internet sites of the time.  With revenues upwards of three billion dollars, Spiegel was one of the big retail players. Sales were strong, or so it appeared, and the company was doing reasonably well. 

However, under the surface, trouble was brewing and it was about to become public. The SEC was investigating Spiegel, the OCC was investigating the bank it owned, outside counsel was forced to “noisily” withdraw from representing the company and sales started to dive.  

So, not long after becoming the General Counsel of Spiegel Inc. in June 2001, Sorensen was put in the unenviable position of guiding a sinking ship through waters fraught with compliance issues.  Rather than set forth the sordid details in this brief column, I refer the reader to the SEC Independent Examiner’s Report (Crimmins Report) – an excellent read and a very good tool to help lawyers gain a real sense of what it means to be faced with a career ending ethical decision.  I strongly urge all in-house counsel to take the time to read the report. 

Sorensen had the good fortune to work side by side with Mike McKillip, Vice President of Audit, who reported directly to the parent’s audit committee in Germany.  Together, these men faced many ethical challenges, the seriousness of which are faced by few people in their careers.  They were subject to intense internal political fallout, peer criticism and potential civil and criminal exposure.  Notwithstanding these pressures, these men never once wavered from their commitment to do what is right. 

Not one year into his tenure, according to the report, German management referred to Sorensen, McKillip and others in U.S. management who repeatedly communicated the troubling situations with the SEC etc. to the board, as “black painters” – pessimists who were exaggerating the seriousness of the situation.  They dismissed their objections as flights of fancy.  It was  suggested that Sorensen be terminated. 

As set forth in the report, when faced with important decisions on corporate action, Sorensen repeatedly insisted on taking the high road at each and every ugly turn.  While this may seem an obvious choice, the report makes it very clear that Sorensen was the leader of a small and distinct minority of U.S. executives who advocated taking the right actions over the objection of senior German leadership.    

Sorensen and McKillip would tell you today that the pressure they faced from the board of directors and the expatriate CEO was so intense that it took years off their lives.  Yet they stayed with the company and insisted on doing the right thing.  Sorensen and McKillip ended up staying with Spiegel to the bitter end, Chapter 11 and the ultimate sale of all assets. 

When their tenure at Spiegel ended, Sorensen retired and McKillip went to work as the Director of Internal Audit for the Evangelical Lutheran Church of America – he used to say that he went to work for God.  McKillip died last September at the age of 59, and I (along with several colleagues) truly believe that his days at Spiegel contributed to his death at a young age.  Both men have inspired many others by way of their honorable and ethical example. 

Mike McKillip was a very good friend of mine and I know that he would not have done anything differently if given another chance, even knowing how it would affect his health.  Among many honorable legacies left behind by Mike McKillip, his unwavering commitment to ethical corporate citizenship is among his greatest. 

What is the moral of the story?  Today’s general counsel often serves as more than just the top legal advisor in a company: trusted business advisor, financial analyst, compliance officer, ethics compass, counselor and advocate.  Because the GC has more than one role, she may face an increase in the number of circumstances that require her to provide ethical or moral analysis and not limit herself to just business or legal considerations. At the end of the day, each of us must be able to look at ourselves in the mirror and be content with who we see.  We, like Sorensen and McKillip, must know that we have done our best to represent our clients zealously, professionally, competently and ethically.  We must ALWAYS do the right thing.

Character cannot be developed in ease and quiet. Only through experience of trial and suffering can the soul be strengthened, vision cleared, ambition inspired, and success achieved.

Helen Keller 

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.

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!        

Courage, influence and civility*

Courage is not simply one of the virtues, but the form of every virtue at the testing point. -C. S. Lewis

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/

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

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