Gruntled Employees

More Orwellian rules on writing

Last week, I wrote about George Orwell as an unlikely writing teacher for lawyers, managers, and HR pros. In addition to his six rules for simple writing, his 1946 essay "Politics and the English Language" offers six questions all scrupulous writers should ask themselves:

1. What am I trying to say?
2. What words will express it?
3. What image or idiom will make it clearer?
4. Is this image fresh enough to have an effect?
5. Could I put it more shortly?
6. Have I said anything that is avoidably ugly?

Of course, you don't have to ask these questions, says Orwell:

But you are not obliged to go to all this trouble. You can shirk it by simply throwing your mind open and letting the ready-made phrases come crowding in. They will construct your sentences for you — even think your thoughts for you, to a certain extent — and at need they will perform the important service of partially concealing your meaning even from yourself.

Big Brother might not be watching you, but your readers — your clients, your employees, your shareholders — are paying attention to your words. So should you.

The myth of courtroom experience

Robert Ambrogi has a nice post at Legal Blog Watch that poses the question, "Is Courtroom Competence Going Kaput?" Robert cites a recent Boston Bar Association study that concludes that the decline in civil-court jury trials is leading to a dwindling supply of experienced trial lawyers. (By "trial lawyers," I mean lawyers who try cases — not the euphemism for the tort-plaintiff bar.)

The study, encumbered with a wordy (and underhyphenated) title "Jury Trial Trends in Massachusetts: The Need to Ensure Jury Trial Competency among Practicing Attorneys as a Result of the Vanishing Jury Trial Phenomenon," focuses on the Bay State but applies nationwide. It expresses concern that more lawyers "lack the confidence and acumen needed to execute the sometimes unpredictable and tumultuous nature of conducting a trial." And it suggests a number of changes to help newer lawyers get more trial experience.

But friend and colleague Lee Gesmer, of Boston's Gesmer Updegrove LLP (celebrating its twentieth anniversary this month — no mean feat), notes in his Mass Law Blog that diminishing jury trials isn't a bad thing for our clients. Lee attributes the drop in jury trials partly to an increase in clients' sophistication. Our clients are now more likely to have in-house counsel watching out for their interests. Clients are becoming more concerned about rising litigation costs (and jury trials are almost always more expensive than other outcomes). And courts are often too slow; businesspeople want to move on, whle litigation is all about reliving the past.

Lee's summing up deserves another look:

I tell clients from the first day a dispute arises that, no matter how angry or enthusiastic for a trial they may be, their case is likely (statistically speaking) to settle, and that they should constantly keep settlement options actively in mind. I tell them that the only reason a civil case should go to trial is if one side badly misjudges the facts or law underlying the case. If the case is close, it should settle (why take the risk of an all or nothing gamble?). If it is one-sided, it should settle, since it should be clear that one side is likely to lose.

Conversely, I once heard a senior partner of a large national firm tell a seminar audience of lawyers that if you ever had the chance to do a jury trial, you should seize the opportunity because they can be a lot of fun. I agree: they can be a lot of fun. But for the lawyer, not for the client. I'm sure that partner's clients wouldn't have appreciated those remarks. Instead, more clients should hear words like Lee's.

Orwellian lawyers

The adjective "Orwellian" usually refers to an abuse of the English language for political or bureaucratic reasons. George Orwell's Nineteen Eighty-Four is remembered in part for its description of Newspeak, a bastardization of English designed to oppress its speakers and limit their ability to think independently and critically.

Kind of like legalese.

As Rutgers professor William Lutz — himself described as the "George Orwell of the Plain Language Movement" — writes, "Language is power, period. The lesson of Nineteen Eighty-Four is that those who rule the language, rule.... The language of the lawyers, of the politicians, of the intelligentsia, is supposed to make [others] feel inferior."

But calling that kind of language "Orwellian" is ironic. Orwell hated that kind of language abuse. In his 1946 essay "Politics and the English Language," he listed six rules for writing good, plain English. The respected London newsmagazine The Economist starts out its own Style Guide with the six rules. Lawyers, managers, and HR professionals would profit from adopting them:

1. Never use a metaphor, simile or other figure of speech which you are used to seeing in print.


2. Never use a long word where a short one will do.


3. If it is possible to cut out a word, always cut it out.


4. Never use the passive where you can use the active.


5. Never use a foreign phrase, a scientific word or a jargon word if you can think of an everyday English equivalent.


6. Break any of these rules sooner than say anything outright barbarous.

10 ways to protect your company's trade secrets

Your people are your most important asset. But your trade secrets are up near the top of the list, too.

Just what are trade secrets? They are the information that would damage your company if your competitors got a hold of it. What can steps can you take to protect them?

Here are 10 actions you can take to reduce the risk of trade-secret theft:

1. Keep secrets off your website.
   Common sense suggests that if something is on your corporate website, it can’t possibly be a trade secret. Yet we’ve seen companies try to argue that it is. For example, a company might claim that customer lists are confidential, despite their website trumpeting the names of their customers. If it’s really a secret, keep it that way.


2. Use password protection on your trade secrets.
   If secrets are going to be kept on your company’s computers, make sure your password protections are up to date. Have a strict password policy, and make sure everyone follows it. Once employees start sharing passwords, your secrets are at risk. And make sure employees don't write them down. (See this post about employees who do.)


3. Use a shredding service.
   Many secrets find their way onto paper and end up in employees’ wastebaskets or, even worse, recycling bins. Giving employees personal shredders is an improvement, if everyone uses them. A better solution is to engage a professional shredding service, along with a strict policy for using it.


4. Have a powerful email/internet/computer policy.
   Most trade secrets spend much of their lives in electronic forms, and smart-but-unethical employees can use today’s technologies to help these secrets find their way to your competitors. Have a strict digital policy that carefully spells out that the computers are company property, and that employees have no right or expectation of privacy in what appears on their screens and hard drives.


5. Keep secrets under lock and key.
   It’s basic common sense, but it’s amazing how many employers fail to lock up their trade secrets. If secrets are kept in file cabinets, make sure the drawers are locked when not being used. Install locks on office doors and desk drawers to protect trade secrets kept in employees’ offices. And keep track of who has the keys.


6. Have — and use — a company ID system.
   Larger companies have so many employees that it can be hard to keep track of who’s who. To prevent strangers from snooping around your offices, implement a company identification system. And make sure employees wear or carry their ID badges. A system that isn’t used consistently offers little protection.


7. Have a need-to-know policy.
   Don’t get in the habit of cc-ing everybody in the company. Limit information to people who have an actual need to know it. If trade secrets are distributed throughout the company without regard to who needs the information, then a court might conclude that they’re not really trade secrets.


8. Conduct exit interviews.
   When an employee leaves your company, this might be the last time to impress upon them the need to keep confidential business information confidential. Have a checklist of points to make during the interview, and get the employee's signature on an acknowledgment that it's not OK to distribute secret information. This makes it harder to feign ignorance after being caught distributing your secrets.


9. Review trade-secret concerns whenever a key employee is leaving.
   Whenever you find out that a key employee is leaving, you should examine the trade-secrets she was privy to and assess the risks of her disclosing them. Especially if she’s going to work for a competitor. Remind her of any noncompete or nondisclosure she’s bound by. And preserve the contents of her computer hard drive and email, just in case. (Don't just reassign her computer to her replacement!)


10. Have a trade-secret audit done.
    Your employment counsel should be able to provide you with a comprehensive review of your trade-secret inventory, procedures, and policies for a reasonable fixed fee. The end product of this audit should be an executive-level report that tracks your company’s trade secrets, including who knows what and what protections are being undertaken to safeguard them. If you don’t know whether your trade secrets are being protected, they probably aren’t. A trade-secret audit should pay for itself many times over in reducing both trade-secret theft and unsuccessful enforcement litigation.

Useful is to useless as beautiful is to ... ?

Keeping in mind that this blog is named for a word that isn't but should be, there's a group of words having to do with quantities of qualities that are missing their natural opposites. For example:

• someone can be beautiful, but not beautiless
• mindful is not the opposite of mindless
• being a lawyer can be gainful employment; can't it also be gainless?
• my painting is worthless; why isn't Picasso's worthful?
• she has boundless enthusiasm; why isn't mine boundful?
• sometimes I'm clueless about something; I'm never clueful
• I'm also sometimes hapless, but I've never been hapful
• this blog can be playful, but it is rarely playless
• you can try to be masterful; if you fail, are you masterless?
• witless but not witful
• childless but not childful
• fitful but not fitless

Who decides this stuff anyway? Send me comments with other needful words and their apparently needless counterparts.

"Why would I write my password down? It's just my birthday."

Think your company's secrets are safe? Think again.

One third of all employees write down their computer passwords, Reuters (via USA Today) reported last week. This from a study performed by Nucleus Research and KnowledgeStorm. The study found no correlation between the complexity of the password system and the likelihood that employees would write down their "secret" codes — a third of all employees would always jot down their passwords no matter how simple they were. The study concluded that employers serious about security should consider abandoning passwords in favor of other methods, such as biometrics.

More on billable hours and work-life balance

No less than the eighth-highest-ranking lawyer in the country, Associate Justice Stephen Breyer, had this to say about the problem of billable hours in the foreword to the ABA's August 2002 Commission on Billable Hours Report:

The villain of the piece is what some call the “treadmill” — the continuous push to increase billable hours. As one lawyer has put it, the profession’s obsession with billable hours is like “drinking water from a fire hose,” and the result is that many lawyers are starting to drown. How can a practitioner undertake pro bono work, engage in law reform efforts, even attend bar association meetings, if that lawyer also must produce 2100 or more billable hours each year, say sixty-five or seventy hours in the office each week. The answer is that most cannot, and for this, both the profession and the community suffer....

Does [the billable hour] unnecessarily aggravate the pressures that threaten to confine the lawyer to the office, insulating him or her from the community? Moreover, does the billable hour contribute to or undermine a practitioner’s ultimate goal — to provide clients with the best legal services possible? And to the extent billable hours are counterproductive on either or both counts, how, when, and to what extent, might it be possible to change billing methods?...

[The Commission's task] concerns how to create a life within the firm that permits lawyers, particularly younger lawyers, to lead lives in which there is time for family, for career, and for the community. Doing so is difficult. Yet I believe it is a challenge that cannot be declined, lest we abandon the very values that led many of us to choose this honorable profession.

So at least one Supreme Court justice believes that work-life balance is an important problem, and that billable hours just may be one of its causes. (You can access the entire Commission report here.)

Lawyers and work-life balance

There is an important conversation — well, important to lawyers — going on in the blogosphere about work-life balance. Dan Hull's always-insightful What About Clients? kicked up some dust in a post about how small firms can win clients away from big firms:

get off your knees, quit bottom-feeding, chuck both your "niche" market thinking and your work-life balance nonsense (the first 8 to 10 years for associates, and lawyering done right after that, should be hard work for even the gifted), steal the good clients, provide outrageous service and get rich.

Professional coach Julie Fleming Brown's Life at the Bar picked up on the "nonsense" tag and has this post about how lawyers can adjust their own balance and still provide excellent client service:

But it’s possible (and necessary) to adjust the balance in whatever direction is most desirable for a particular lawyer and still to provide excellent service. Such an adjustment will lead to certain consequences, whether it’s rapid advancement in career, a deeply satisfying personal life, handsome or sub-optimal earnings, burnout or boredom, or most likely some shifting mix of these and other consequences.

Dan Hull responded with a forthright post about work-life balance being a "dumb-ass issue":

WLB is "your" problem--not mine. Each one of us creates our own quality of life as we learn to lawyer, keep lawyering and serve clients.... If you are a job-hunting student or young lawyer expecting my firm to support a regime of work-life harmony, please try another shop.

This conversation led me back to an excellent summertime post on Tom Collins's More Partner Income
that calls for some creativity in valuing the work of those attorneys (mostly mothers) who work fewer hours:

Let’s turn this conversation around. On the one hand, let’s deal with the child raising years of lawyer-mothers; and on the other hand, let’s start celebrating the benefits of lawyering, including the satisfaction of service to others ....

I think Tom's right. There is a creative way to solve this problem: ending billable hours.

More to come ...

No lawyer tricks for defending against sexual harassment

Sexual harassment is the hardest employee claim to defend against. Why? Because it's the claim most likely to make its way to a jury.

When we're defending our employer clients, we try to get most types of employee claims narrowed or dismissed using an arsenal of legal tactics.

Lawyer tricks, in jaded terms.

For example, say I'm defending a disability-discrimination claim. Here are the different arguments I can make to try to get the claim dismissed:

1. the employee's not actually disabled
2. her condition isn't serious enough to meet the disability threshold
3. she's not "otherwise qualified" to perform her job
4. she refuses to accept the reasonable accommodations my client's provided
5. the accommodations needed to allow her to do the essential functions of her job are not reasonable
6. she's already claimed elsewhere that she's totally disabled, meaning she can't work, period

As you can see, there are a number of arguments I can use in a legal motion to try to get the claim dismissed. They're not easy arguments — disability cases are very tricky — but they are arguments.

Sexual harassment is different. I have fewer arguments I can make. Once the employee clears the hurdle of showing that the conduct actually was sexual harassment — meaning that it was unwelcome sexual conduct at work — she's off to the races. The only remaining issues are questions of facts — "he said, she said." And questions of facts are decided at trial. Once a sexual-harassment case gets to trial, the employee has a solid chance of winning, and a probable six-figure payout if she does.

The smart employer has a serious antiharassment policy and regularly trains its employees and managers so they know what harassment is and how to prevent it. That's much more effective than lawyer tricks.

Liar, liar, your résumé's on fire

The Boston Globe's terrific workplace reporter Diane E. Lewis noted in today's paper a recent survey called "Résumé Lies." CareerBuilder.com polled 2,200 employees and over 1,000 hiring managers on the subject of fibbing on your c.v. Fifty-seven percent of the hiring managers reported that they've caught lies on applicants' résumés. Of those lie detectors (my lame-but-unavoidable pun, not Diane's), 93% chose not to hire the liar (also my lame rhyme — sorry).

Ironically, only five percent of the workers polled admitted to writing résumé fiction. So either all this lying is being done by a select few ... or people who lie on their résumés tend to lie on surveys, too.