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Ma's Lessons for Being a Better Lawyer



Texas Lawyer
November 05, 2008

I loved my mother. She was really smart. As a kid, she taught me a lot. And, her lessons made me a better lawyer. So, Ma, here's to you.

Lesson No. 1: All experiences in life are good ones, but only if you draw the right lessons from them. Otherwise, it's just something that happened to you. This yin and yang must be frustrating to general counsel: Get sued, pay lawyers. And, to boot, only three things can happen: summary judgment, try the case, settle the case. To paraphrase a famous Texas football coach when asked about why he didn't pass more: When you pass, only three things can happen, and two of them are not good. Same here.

So, what's to be done? Have your lawyers do what the military does, namely, an after-action report (AAR). After every matter is completed, require from your lawyers a report -- no more than two pages -- on what happened, what was done right and what could have been done better (but, no blame game) and what steps should be taken to do more of the first and less of the second.

As a client told me when I gave him an AAR, "So what you're telling me is that this case was inexpensive tuition." Bingo. He and Ma would have hit it off.

Lesson No. 2: You can't change people; you can only help people. Rewind to 1987. A witness was being prepared for her deposition. There were two defendants with a joint defense agreement; I represented one employer, and another lawyer represented the other. The witness was doing all she could to be a good witness. But the other lawyer was impatient and upset. He was trying to make her testify the way he would testify. Finally, the stress short-circuited her, and she started to cry.

Had the lawyer's mother told him what mine told me, he would have grasped the futility of the approach. There is a better way, and I learned it in the early 1990s. Develop a message system with the witness. Ask the witness, "What do you want the judge and jury to know? What facts support those messages?" Boil it down to three or four messages. Tell the witness that as long as she stays on message, the delivery -- the words used -- do not matter. Developing a message system puts the witness, not the opposing lawyer, in control. Question to GCs: Which approach would work better, especially for your C-level executives? To ask it is to answer it.

Lesson No. 3: There is a story on the surface and story beneath it. Of course, when I got educated, I would smart-alecky tell Ma about Sigmund Freud's famous line that sometimes a cigar is just a cigar. I guess all kids phase into that phase. But, she was so right. Let me tell you about a case out of the U.S. District Court for the Southern District of Iowa -- Van Horn v. Specialized Support Services Inc., et al. (2003) -- and let's pretend that you hear just this: An employee slapped a patient in an assisted-living home, which had a zero-tolerance policy when it came to patient abuse. Should the employee be fired? You'd say yes, right? But, there is always more.

Turns out, the employee had complained about the patient touching her inappropriately and asked for help (say, a self-defense course). But Specialized Support Services did not respond to her request. She finally slapped the patient when he grabbed her breast. The court said the slap was opposition to sexual harassment and found that her termination violated Title VII. The case shows that GCs need to drill down and get the dope. Disagree? Think about the couple where, when one suggests eating Chinese food for dinner, the other explodes in anger, yelling that it wouldn't kill them to eat Italian food. Chances are the argument is not about the quality of the restaurant's beef and broccoli.

Lesson No. 4: When in doubt, resort to the truth. Isn't that the truth? Many lawyers obfuscate their messages, deceive others into believing they are zigging when they are zagging and cloud their meanings and intention. To what end? At a seminar, I heard a lawyer say one of his favorite tactics at mediation was to keep the mediator confused as to who had ultimate settlement authority on his side of the table. Guess he misunderstood one too many Sun Tzu books. The truth works. It clarifies. It liberates.

Here's a mediation example: It was day's end, and we had made our last offer. We communicated it as such. The mediator came back and said we had an agreement and that the other side just wanted my client to pick up their mediation expenses. No big deal. We say, "Hey, wait a minute. Our last offer was our last offer. No more. We settled based on that number." And it worked. We settled on our last offer.

Being truthful is the right thing to do. It is quick and less painful. Sort of like when Ma took the bandage off in one quick yank (she was a nurse and knew her stuff).

Lesson No. 5: A moment's pleasure often leads to a lifetime of regret. My mother gave me the facts of life. I was 12. All I knew at the time was that I was in love with Ginger on the TV show "Gilligan's Island," and I had a vague idea as to why. (Looking back, I know Mary Ann was more wholesome, but at 12, I guess it's not about being wholesome.) In keeping with her karate-chop quick truth-telling in Lesson No. 4, Ma told me this lesson quickly, with its Zen-like quality. I am sure there was more, but this is all I remember.

Perhaps this is the most important lesson for an employment lawyer. So many time-pressured decisions lead to so many bad results. We have to launch the Challenger shuttle now. The whole world is watching. Let's get those widgets out the door by 5 p.m.; don't worry about any quality-control problems. We must fire Joe immediately.

President Abraham Lincoln, pointedly speaking to the South in his first inaugural address, said: "Nothing valuable is lost by taking time."

GCs often need to slow down the decision-making process on employment issues. They should ask the decision-makers, "If we have 10 times as much time to make this decision, would it be the same decision?" No matter what the employee supposedly did, don't blindly react. As with Lesson No. 3, get the facts. Put the employee on paid leave while taking time to figure out what happened. As Ma understood, once done, it is done and can't be taken back. There are no refunds.

My mother is gone. And, as the Randy Newman song "The Great Nations of Europe" goes, when you're gone, you're really gone. No more time to interact, no more time to ask why a parent believes as she does, no more time to show appreciation.

Do me a favor -- give your parents a call if they're still here; if not, think about them. And never forget that the lawyers we became are never far removed from the children we were.

Michael P. Maslanka is the managing partner of Ford & Harrison in Dallas. His e-mail address is mmaslanka@fordharrison.com. He is board certified in labor and employment law by the Texas Board of Legal Specialization, and he writes the Texas Employment Law Letter. His "Work Matters" blog and podcasts can be found on the Texas Lawyer Web site.