Ruminations On Making the Legal System Work Better

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.

Howard

About mavity2012

I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues. Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession. I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors. I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values. Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
This entry was posted in managing legal matters, NLRB, OSHA and tagged , , . Bookmark the permalink.

One Response to Ruminations On Making the Legal System Work Better

  1. Jeff Romine says:

    Sounds like your first 17 days of the new year have been like mine!

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