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Defending against an employment suit never is a comfortable experience for in-house attorneys. And that discomfort is multiplied one hundred times over when it’s the boss who has been accused of wrongdoing. When that occurs, the in-house lawyers must become the pivot point between the CEO and employment suit — whether it’s discussing the facts of the claim, considering whether to pursue a settlement, preparing the boss to testify (unpleasant flashbacks to Bill Gates’ deposition), or cuing in retained counsel on effectively communicating with the boss. And bosses, for the most part, are intensely interested in employment issues. Why? They intuitively grasp that employees make or break an organization, that employment claims may be symptomatic of a deeper problem and that employees look for a message in the way an employment issue is handled. In-house lawyers walk a fine line, counseling on all fronts for a client who is usually demanding, sometimes unreasonable and oftentimes right. Here are some things we’ve learned, several from the school of hard knocks and many more from the wise tutelage of seasoned in-house lawyers. We’ve set them out as three home bases to go to when it’s the boss. Home Base No. 1 is the most important because it deals with how bosses communicate with you — and, more importantly, how they expect you to communicate with them. Because bosses are generally solution-oriented, as a guide in communication, we’ve borrowed an acronym from the U.S. Army: BLUF, Bottom Line Up Front. This doesn’t mean that you need to be tactless. But it does mean that you need to get right to the point. Be concise. Be frank. Give the boss options (not “alternatives,” which can seem too ephemeral for a practical boss, or “models,” which may seem too inflexible). And remember, before you go into his or her office, take some time to think through what the boss’ expectations, needs and objectives are. Consider what your boss focuses on and how he or she measures results before you come up with the options. This was brought home to us in the mediation of a sex discrimination suit. It was near the end of the day, and the plaintiff finally came in with a dollar amount within a defensible settlement range. While we thought it reasonable, the boss looked at us and quietly said, “Do either of you have any earthly idea on how many units I have to make and sell to write a check that large?” We didn’t. He did. It was back to the negotiating table. Here’s the lesson: When dealing with the boss, you need to focus on the boss’s needs and context — not yours. THERE’S MORE As a corollary to Home Base No. 1, Home Base No. 2 is to look for ways to show the glass is half full, not half empty. The boss is responsible for coming up with a profit (or an acceptable loss), as the execs at the dot-bombs learned, and most share Voltaire’s view of litigation that “I was financially devastated twice, the first was when I lost a lawsuit, and the second is when I won one.” Successful bosses look to the future, which is what business requires, not backwards, which is what litigation requires. Have some idea about how to turn the negative experience of a suit into a positive one. Prepare an After-Action Report — no more than two pages — when concluding litigation, not to find fault but to figure out if the litigation exposed weaknesses needed to be shored up, least best practices (a great term we’ve borrowed from UPS) that need revision, or least best employees requiring additional training or supervision. After settling a Fair Labor Standards Act case, we met with the CEO, who reviewed our After-Action Report suggesting, among other things, periodic reviews of exempt status, and he asked somewhat skeptically, “So, you’re telling me this settlement was inexpensive tuition. Is that what you’re telling me?” Keeping with Home Base No. 1, we said “yes.” A thin smile crossed his lips, and he was off to his next corporate objective, leaving us with the useful concept of “inexpensive tuition.” Which leads us to Home Base No. 3, which comes from what most talented execs do, which is to test you — your advice, your mettle, your counsel. It’s not unlike former General Electric Co. chairman of the board and CEO John “Jack” F. Welch Jr. who, when his subordinates told him they had 60 percent market share, would require them to redefine their market to be larger, and thus their share smaller. So, remember to have a POV, a point of view, and if challenged, don’t scramble around like a quarterback trying to avoid a sack. To paraphrase former Texas Agricultural Commissioner Jim Hightower, the only things in the middle of the road are yellow stripes, dead armadillos and equivocating lawyers. EXPECTING PLEASANTRIES? Here’s an example. We were called into a situation where an East Coast company with a Texas facility wanted to terminate a problem employee. A conference call was scheduled, with the boss and his staff in New Jersey, company lawyers in Philadelphia, the local managers and us. The call started, and we relaxed, naively expecting opening pleasantries, whereupon the boss said, “I don’t know who I dislike more, the employee trying to shake me down or two sets of lawyers with their hooks in me.” It went on from there. He finally said, “What do you think about that?” Our tone was the same as his, and our response was to summarize his dismal view of lawyers, acknowledge we had heard what he said, and tell him we are here to help him develop options in as a cost-effective way as possible. After we responded, we were met with dead silence, and an “Oops!” feeling. Then the boss came back on, said “yes, that’s right,” and we got on with it. He was understood; options developed; and he made a decision. But this experience also taught us that bosses often look at employment cases in an emotional way — especially if they personally are accused of wrongdoing: “How could the former executive sue us? I tried everything to salvage his career” or “I don’t understand why these employees are claiming discrimination in the reduction in force — don’t they understand I tried everything short of that?” This dynamic plays itself out in two areas, in testifying and in developing litigation strategy. Let’s look at the boss as witness first. The bosses’ strengths, decisiveness and self assurance, often can come across to a jury as rigidity and arrogance. And when they testify two impulses are in conflict: their need for control versus their fear of looking foolish. Here are some thoughts about preparing the boss to testify. First, if the case is important enough, try working with a consultant in preparing the boss. Some lawyers shy away from this, at times out of ego or fear of looking less than competent. But remember, your first duty is to do what is best for the client, not yourself. Also, try using videotape practice sessions. That way, you won’t have to tell the boss that drumming his fingers is distracting; he will be able to see it and tell himself. Also, when going over important or controversial facts, work from a whiteboard, so that the boss’s attention will be focused on the message and not on the messenger. And remember from Home Base No. 1, you can be appropriately frank. During one deposition we were involved in, the plaintiff’s lawyer was aggressively asking questions, and the boss was responding in kind. They leaned toward one another, close enough to either kiss or throw a punch. We called a break and asked him, “How do you win a tug of war?” Some of his deposition adrenaline washed over, and he was angry at us; then his face brightened, he smiled and said “You let go of the rope.” Finally, when testifying, the boss may try to take control by interrupting the opposing lawyer, arguing or being nonresponsive. The result can be a witness who looks like he’s hiding something. Instead, coach the boss to say this when the lawyer cuts them off or asks a misleading question: “May I explain?” This puts the boss in a no-lose posture; if the lawyer says yes, the boss goes to town; if no, it’s the lawyer who looks like he wants to hide something. It also puts him or her in control. Let’s look at strategy. In business, the boss looks for leverage. For example, in a business deal, the boss may think, “If the other company resists our tender offer, we’ll play hardball in competing.” Similarly, in employment litigation, the boss may think “We’re sued, so we need to file a counterclaim” or “He’s making us uncomfortable, so let’s make him uncomfortable by digging around in his private life.” This can backfire. Remember the jurors come with a predisposition against corporate America and already are primed to believe a big company will retaliate. Instead of completely resisting the idea of leverage, try to direct the boss’s attention to more suitable tactics than baseless counterclaims or investigating the plaintiff’s private life. Look to various legitimate tactics: filing a Texas Rule of Civil Procedure 202 petition — which allows you to investigate potential claims without filing a suit; doing a fact blitz to determine within 20 days the key witnesses, the pertinent facts and an initial overarching strategy and case assessment; and seeking an independent medical exam if the plaintiff is claiming emotional distress. And there are other tactics. Invariably in an employment case, the boss will ask, “Did we do anything wrong?” And, to a person, the boss wants an honest answer and a principled resolution — one based on the needs of the company, its employees and the desire to do the right thing. While there are ups and downs in getting to a resolution, when it’s the boss, if you handle it correctly, you can end on the upside. Michael P. Maslanka is a partner at Andrews & Kurth in Dallas, is board-certified in labor and employment law by the Texas Board of Legal Specialization and has more than 20 years’ experience. Theresa M. Gegen is a senior attorney at the firm and also is board-certified in labor and employment law. They are editors of the Texas Employment Law Letter, which can be accessed at http://www.hrhero.com/.

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