Category Archives: Philosophy – Employee Rights

Individual Rights, Gerry Spence Blog

Anyone interested in individual rights and the law should check out this new blog by renowned trial lawyer Gerry Spence.

Mr. Spence comments about his most closely-held views, many certain to raise controversy.  This includes his views that individuals are being oppressed by corporations and government on a large scale, and are oppressed to the extent that he regards ourselves as “slaves” to these larger forces, and to our failures to liberate ourselves.

Whether or not you agree with these views, you will likely find them relevant.  Mr. Spence undoubtedly possesses one of the big character trait he promotes: authenticity.

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Cloverleaf On-Ramps and the Law

When I was in law school, a professor discussed an interesting analogy.  It involved the invention of cloverleaf-shaped on-ramps.  The new on-ramps were self-imposed structures, which- like the self-imposition of new laws- improved safety and prevented us from making human errors.

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Employee Types

This management seminar flier categorizes different types of problem employees (e.g. “The Gossip,” “The Excuse Artist”), and offers ways to deal with each employee personality type.

I think it is usually counterproductive to give people labels.  For example, if a manager tells an employee that he is “The Gossip”- or if the manager merely believes the employee can be reduced to a stereotypical icon like “The Gossip”- those beliefs or words can push the parties’ employment relationship in a negative direction.  In my own observation, employment disputes are resolved much better when management address employees in terms of behavior (e.g. manager tells an employee that “Gossiping is harmful, and I’d ask that you and others avoid it”) rather than labels that categorize a person (e.g. “You are a Gossiper”).

With that said, upon review of this full flier information and seminar description, I think that, for the most part, this seminar does address behaviors first, and promotes positive communications with employees.  (In other words, the seminar promises to tell managers how to communicate with employees about things like gossiping, and doing so in a constructive manner that does not offend the employees or make them defensive).

In my observation, when management encounters behavior types that are legitimately harmful (e.g. excuse-making) but communicates negatively to the employees about this (e.g. “You’re an Excuse Artist who never takes responsiblity for anything!”), then the first stone is cast, and escalating disputes and litigation are much more likely.

As I often find myself saying to employees (and the same holds true for management): When you are in a dispute, it is not enough to be right.  How you communicate is just as important, and often more important, than being right.  If you communicate negatively or unprofessionally, that distracts from the fact you are right, and makes people inclined to defensive or retaliatory behavior, as opposed to seeing the light.

Because this seminar appears to share this philosophy, I give it a thumbs up, for whatever the value of my little thumb in cyberspace is worth.

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“Ghosts of Abu Ghraib” (DVD)

Recently, I watched a very interesting, albeit unsettling, documentary titled “Ghosts of Abu Ghraib.”  More information about the film is here.

The film, of course, addresses the notorious photographs of torture (or alleged torture, some feel) that was conducted by U.S. prison workers at the Abu Ghraib prison in Iraq.  The pictures speak for themselves.  The people interviewed speak volumes as well, although their assertions (unlike the pictures)are more open to dispute.  Were the prison workers involved “a few bad apples,” or were they acting under the explicit direction or negligent oversight of the U.S. government?  All of the above, according to the film.

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Pump You Up

Employers- are you looking for an employment defense attorney who will unquestioningly agree with every word you allege, gladly smear your opponent employee as “ridiculous” and a “liar” and the like, and write letters to your opponent (although more so written to you) proclaiming your organization will be “vindicated?”

Employees- are you looking for an employee rights attorney who will unquestioningly take your “slam dunk case” as you call it, who gladly promises to be more “aggressive” than the prior two attorneys you retained, and who nods and agrees that your case may well go to the Supreme Court because you’ll “never settle with those people?”

If you search long enough, and if you bring a big wallet along, you will eventually find the right attorneys to Pump (PAUSE, CLAP) You Up.

 

 

 

 

And at some point (well short of the Supreme Court or “vindication”) you will realize that you have spent a lot more money on legal fees than you needed to, and you probably WILL “settle with those people” (or, at least you’d BETTER).  And the settlement will be a disappointment to you as compared to what you had believed back when your attorney was vocal about pumping you up, and silent about the multiple risks of deflation.  But at some point you’ll see it’s better to cut your losses than continue to pay Hans and Franz’s membership fee.

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A Story: Opposing Attorneys Drinking Beers Together. (?!)

Another plaintiff’s attorney told me a war story that I’ve often thought about.

The attorney was involved in a very negative lawsuit, where the parties (plaintiff and defendant) apparently disliked each other immensely.

The case went to trial.  After the last day of trial, the attorney asked the other party’s attorney if he wanted to go drink a beer at the local tavern.

The opposing attorney, before answering, looked behind to make sure his client (a representative for one of the parties) had left.

She just wouldn’t understand us drinking a beer together, he explained.  When he looked back, he saw the representative had left.

So the opposing attorneys went to the tavern, and drank a beer.

I didn’t ask the attorney what he and the opposing attorney talked about at the tavern.  But I have some educated guesses about what they didn’t talk about.  They probably didn’t trade personal insults.  They probably didn’t talk about how righteous they or their clients were, although each attorney probably believed in full that his respective client was right, and at trial covered every important fact and argument in his client’s favor.

But probably, by the time they got to the bar, they didn’t say much about the case at all, other than each politely acknowledging that the other did a good job for his client.  And then, the trial disputes behind them, they probably went on to discuss more important things.  Their kids.  Their health.  Their belief that it was important for people- and for opponents, in particular- to drink a beer together.  That at a time when our differences have come to a head, and pose the greatest risk to defray us, that is the best time to embrace commonalities.

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Corporate Rhetoric, the Decline of Individual Rights, and What You Can Do About It

If you listened only to corporate-based rhetoric, you would get the following impressions about individuals who sue organizations:

  • Frivolous lawsuits are out of control, and too many huge verdicts are being awarded to individuals who spill coffee on themselves and the like.
  • There are too many individuals- including employees, consumers, injured persons and attorneys- who are “extortionists,” and are filing frivolous lawsuits to look for a quick (and large) buck.
  • “Tort reform,” and restricting individuals’ access to the legal system, is needed, or else businesses may not financially survive.

As someone who works with individuals bringing legal claims, I see many problems with these concepts, which mischaracterize the state of the world as I experience it.

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“That’s Just the Way That I Am”

“That’s just the way that I am.”  Ever find yourself saying this, when confronted about something you’ve done?  If so, that means four things: (1) you are being unreasonable; (2) you KNOW you are being unreasonable; (3) you are making the conscious decision not to change what’s unreasonable; and (4) you don’t care about the effect your unreasonable action has on others.

The upside is, if you are saying this, you have the capacity of self-reflection.  And it’s never too late to ditch this axiom, and a philosophy that causes others, and you, unhappiness.

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Litigating? It’s Not About “Right” and “Wrong,” It’s About Risk

If you’re an employee or an employer involved in a lawsuit, you may feel strongly that you are “right” and the other side is “wrong.”  I think this is a counterproductive way of looking at a legal dispute.

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Employer Anger = College Money for Lawyers’ Kids

Employers who are angry wind up paying more in legal fees.  A lot more.  This is old news to employment attorneys, but perhaps not to the angry employers themselves.  Sidetracked by anger and the idea of chasing “principle,” they may not be listening to what their own attorneys are saying.  (I should mention that many employees I’ve run into are angry as well, and I warn them of their own risks).

On several occasions, during seminars and personal discussions, I’ve heard employer-side attorneys acknowledge that angry, “principle”-chasing employers are making financially-unwise decisions, but the attorneys claim (which is true) that it isn’t the attorneys’ fault.  On three different occasions, when I heard such an attorney acknowledge that angry employer clients tend to pay large legal fees, the attorney followed up with a statement to this effect: “but hey, I’ve got kids to put through college.”

Why do employer defense attorneys bring up their kids’ college funds when talking about employers who are angry or chasing “principle”?  Because angry employers are a treasure-trove for legal fees, that’s why.  Angry employers usually extend litigation a lot longer, and pay a lot more legal fees, than do employers who are more objective and rational about the risks they face.

Are you an angry employer?  Do you think of your anger as a source of college funds for attorneys’ kids?

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