If it paid, I’d spend most of my time writing, blogging and tweeting, but those satisfying outlets do not pay the bills. Yep. I’m a senior partner with management responsibilities in 30-something offices, but I must still manage my always urgent cases and meet billable hours standards (which ironically I crafted myself).
So I resolved a high stakes case last week, and although there’s plenty of other matters screaming for attention, I hope to blog a bit this week. however, tonight I simply want to share a few observations.
1. To the government, please don’t make employers go all the way to the literal or figurative steps to settle a case. While I recognize that sometimes the timing may represent a strategy decision, on other occasions the problem is a lack of urgency. I appreciate the woeful lack of funding for Fed OSHA, most State Plans and state legal departments, but a large citation or very public EEOC lawsuit can cost n employer millions in business and blocked bids. That’s not a problem if the employer is “guilty,” but what if the employer is not guilty or if the government can’t meet its burdens?
2. To attorneys on both sides, please learn when not to act like a “lawyer.” I’ll use the OSHA setting as an example. the OSHA practice is unique among the labor specialties because all sides share the same goal of figuring out how to protect workers. At some point, we’re all on the same page. This means that we should all focus a bit less on whether we can “beat” the other side and focus more on arriving at a resolution that best employs OSHA’s limited resources and facilitates a safer workforce. Let me pout this more bluntly … forget you’re adversarial training and desire to kick the other side’s a__. Look for a solution which rewards the “good” employer and allows OSHA to achieve more than they could at trial. Few people are as good as me at being harsh, but I’D rather leave with the proverbial “win-win” outcome. Let’s shoot for a result that will impress our kids. If it’s not possible, bring out the hammer and tongs.
3. In negotiations, remind yourself repeatedly to put yourself in the other side’s shoes. I confess that sometimes I am amazed that the other side doesn’t “get it.” Maybe I’m correct. Maybe they haven’t done their homework. But that doesn’t matter. If they don’t get it, assume that it’s your fault and keep trying. Don’t lose your temper, unless of course you dispassionately decide that closing your briefcase and threatening to leave is objectively the best strategy.
4. Listen to the other side in negotiations and don’t cut them off. I struggle with this failing because often the other side’s argument is obvious and I don’t want to wait for the inevitable and obvious conclusion. I want to proceed to rebuttal. Too bad. I need to thoughtfully listen before responding. Maybe it builds character.
5. Don’t try to master your weaknesses. Do what you do well and get someone to work with you and then divvy up what each of you do best.
6. It’s hard to prepare too much, so God bless paralegals and good associates. If it is a highly technical subject, learn it better than the other side or bring someone who can do so (see earlier observation about good associates).
7. If you don’t like to win, you probably should not be a lawyer, but check your ego at the door
8. If you’re a NYC lawyer and think you’re smarter and better than those rubes on the other side, you may be heading to a swift and well deserved application of frontier justice. Lawyers do not rank above most honest working folks and if you read your own résumé too much, you’re an easy opponent. More importantly, being an attorney is a “profession.” We’re held to a high standard of ethics, professionalism amen duty to the community. Basically, we need to be the polar opposite of the protagonist in the “Wolf of Wall Street.”
9. To employers, we understand that you have to coldly calculate the value of trying a case, but please do so. I know that my admonition sounds self-serving, but sometimes it is in fact necessary to establish that you will not simply throw money at every frivolous claim. Or the risk of “repeat” OSHA citations or damaging collective bargaining precedent may justify going to the limit. On a personal level, it’s tough to draw a line in the sand with an opponent and posture; only to then be ordered to meekly give in. It diminishes the employer’s future capital, as well as that of the attorney.
10. As a final note, I want state how much we labor lawyers appreciate the extraordinary efforts of our clients’ managers who tirelessly assist us in responding to union drives or OSHA citations in addition to their normal 60 hours a week. Never doubt that we know to whom we owe our success. It’s our pleasure and honor to work with you.