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The Art of Making Ethical Decisions

Most decisions are not binary. They are not either/or. Rather, they fall within the shades of grey, on the continuum between black and white. This is why we have lawyers.

Client expectations are changing. Increasingly—especially in a post-Enron and post-economic meltdown world—clients look to us to help them make ethically based decisions. We are morphing into consigliores. And, we must be ready to meet their changing expectations. Or, clients are putting us in ethical dilemmas, sometimes inadvertently, sometimes deliberately. So to help us all, here are keys on ethical decision making.

Ethics Isn’t a MovieWhile Norma Rae and Erin Brockovich are entertaining movies, they

don’t reflect real life. Seldom is an ethical decision a matter of high drama. Instead, it’s difficult, grueling, and often thankless work. But, plaintiff and defense lawyers sometimes fall into the trap of thinking it is a movie, and becoming a hero in their own story. Lawyers on the defense side tend to make everything a High-Noon scenario between them and the employee, while lawyers on the plaintiffs’ side often cast themselves into the roles of one brave soul against a heartless corporate machine. As with life, the truth is in the middle, and you lose your effectiveness as a counselor by buying into either story line.

I know this may sound odd, but let me tell you a story on why to delete the word “ethics” from your vocabulary. I was picking a jury in a employment case several years ago. A new lawyer was picking one just before me. He consistently asked the jury pool the following question: “Do you think if selected to serve on this jury, that you could be fair?” Not surprisingly, they all thought they would be. When I ran into him

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98 Maslanka’s Pocket Guide to eMPloyMent law 2015


in the hall later that day, I gave him some advice on jury selection and, well, he told us to mind our own business.

But the same principle applies here: everyone thinks that she is an ethical person, or she is a better person than she really is, or convinces herself that she is more ethical than those around her. This tendency is all too human and goes by the name “the self-serving bias.” We are all subject to it, including yours truly, who thinks he is skinnier than he really is, has more hair than he truly possesses, and is decidedly better looking than the mirror reflects.

Instead of using “ethics,” try using “business integrity,” it’s easier to talk about ethical issues by using the concept of business integrity. Once you start talking about ethics and morality, the discussion slips into argument, with the client becoming defensive. Remember: framing the issue matters just as much as the issue itself. And, when counseling an individual, try framing it in terms of “personal integrity.”

Leave movie making to Hollywood.

It’s Not About YouThe essence of being a good adviser, especially on issues that are

integrity related, is to understand that it’s about the client, not about you. This is somewhat akin to the idea of being a hero in your own movie. When you make it about you, you’re incapable of giving advice on dealing with situations involving business or personal integrity. It’s like the scene in The Verdict with Paul Newman.

He’s ready to accept $250,000 in settlement, but decides to go the hospital to take some photographs of his client—the victim of a botched operation in a Catholic hospital—who is on a respirator. He takes a few pictures hoping to get more money in settlement when he meets with the Cardinal that afternoon. Not a word is said in the scene, and all you hear is the hiss of the respirator. You see it all in his face: it moves from interest, to concern, to a bulb going off above his head saying essentially, “If I win this case, I can make up for everything I’ve done wrong in my sorry life.” Cut to the Cardinal’s office, where he rejects $250,000. He made it about himself and he was wrong.



Amass Political Capital, but Spend it Wisely

When in doubt, remember these lines from William Butler Yeats, An Irish Airman Foresees His Death:

Those that I fight, I do not hateThose that I guard, I do not love.

This is the mind-set that you need in being a counselor on any issue, but especially integrity-based ones.

The client first; you second.

You’re Going to Have to Have a Point of ViewTo give advice on integrity issues, you’re going to have to have a POV—

that is, point of view. As former Texas Agriculture Commissioner Jim Hightower said, “The only things in the middle of the road are yellow stripes and dead armadillos.” Your advice cannot be all things to all people: so, avoid Groucho Marx’s counsel that “these are my principals, and if you don’t like them, I have others.” Situational decision making will come back to haunt you. You’re there to help your client to identify principals that are important to the organization or to her as a person, and stick to them. Life doesn’t give us the luxury of having a lot. These are the keys to a mind-set that you need in counseling on these issues.

Equivocation? Not useful.

Amass Political Capital, but Spend it WiselyThe single most important thing your client has in any organization,

or a lawyer with her client, is this: political capital. You create political capital by being a team player, showing people how to achieve the results they want and not just saying “no,” and, well, being nice to everybody from the guy who hands out the mail to the CEO. And, when you have political capital, make sure you spend it wisely. Political capital is like money in the bank. Build it, hoard it, and spend it only on important things.

At the start of my career, I went to a meeting with the General Counsel, the CEO, and Senior Partner. The issue was an age




discrimination suit filed by three long-term former top executives. The CEO was apoplectic. How could they sue the company after all the great things he had done for them? Like a jilted lover, he wanted them to suffer. Now that he thought about it, he was certain that the former execs had abused their expense accounts for all these many years. He was demanding a full investigation and wanted to file a counter-claim for fraud. And, come to think of it, a private detective to trail these guys wouldn’t be such a bad idea either.

Foolishly, I started to speak, with the intention of telling the CEO why this was a bad idea. The General Counsel gave me this look: I remember it to this day, the sort of look a pet owner gives an unruly dog or a parent a boisterous child (maybe it’s the other way around). I was about to say that he couldn’t do these things and that they weren’t such good ideas. But, the words caught in my throat, Later, in a one-on-one, the GC said, “Point One: He’ll forget about it in a week; He doesn’t know or care who you are. You have no political capital. Point Two: Remember what battles to fight.” He was right on both points.

So, remember, while General George Pickett’s charge at the Battle of Gettysburg was admirable, inspiring and courageous, he only got to do it once.

Remember Gettysburg.

Don’t Nuke MonacoLet’s return to the idea of proportionality. Clients are going to put you

in integrity based predicaments. Here’s a rule I cannot emphasize too often or too much: Always make a proportionate response to the integrity dilemma that you’re confronting. You must always ask yourself: “Am I making a proportionate response, or am I overreacting, or under-reacting?” Let me give you an example of being in an integrity pickle.

I was representing an owner of a company accused of sexual harassment. While it was his word against hers, he confirmed many of her allegations. Several months later, recognizing that it was purely a credibility contest, he suggested that his deposition testimony could differ from what he told us initially; after all, no one but her could say



Beware of the Greatest Enemy of Integrity Based Decisions

otherwise. It would have been easy—easy, but counter-productive—to become the ethics police and say, “I am shocked; that’s wrong; get another lawyer!” Do so, and even if he stayed with me, he would have clammed up in the future (more likely he would have fired me, hired another lawyer, and lied to him). Instead, I wrote him a letter, noting that I was sure the comment was borne of frustration with the length and complexity of the legal process—a frustration I shared—and I knew he would testify consistently with what he told us earlier. I was also confident he would not put me in a situation where we would need to evaluate possible withdrawal. It worked. We went to mediation pre-deposition and settled.

As Dr. Samuel Johnson said in the 1700s: “It is better to remind than to lecture.” He was right then, and he’s right now. Counseling clients is not like those interventions you see on TV. Friends of a drug addict or an alcoholic meet with him, essentially requiring him to undergo shock therapy in order for him to see that he is destroying himself. It may work with addiction, but it doesn’t work in counseling.

Eschew confrontation.

Beware of the Greatest Enemy of Integrity Based Decisions

Here it is: time pressured decisions. “Fire the employee now!” or “We’ve got to get this order of widgets out by 5 p.m.—no ifs, ands, or buts” or “The whole world is watching, we’ll look stupid if don’t launch the Challenger today.” To paraphrase H.L. Mencken, decisions made under unnecessary time pressures are usually “swift, sure, and wrong.”

While some decisions must be made on the spot, it’s when you are bullied into a short decision making time that integrity-poor decisions are made. Look at the Challenger disaster. Until unnecessary time pressures were injected into the decision making process, the mantra at Mission Control was always: “Can you prove it’s safe to launch, because if you can’t, we’re not.” When time pressures were interjected, the issue was suddenly framed differently to “can you show me launching isn’t safe, because if you can’t, we’re launching.”




According to J. Keith Murnighan in The Art of High-Stakes Decision Making, which discusses the Challenger disaster and signs someone is making time pressured decisions:

✓ They increase their information processing speed but decrease the amount of information they consider;

✓ They increase the weight they place on negative information;

✓ They increase their use of simpler rather than more complex decision models; and

✓ They lock in on and defend their first chosen strategy.

Don’t rush.

Temporize, Temporize, TemporizeWhat can you do to slow down a runaway decision making train?

Here are a few ideas. First, never forget the power of a question: “If we had twice as much time to make this decision, would we still do the same thing?” Or, try to temporize, which is a $400 an hour word for stalling. To temporize, avoid rapid back and forth emails. Try using a positive/negative sentence, something like, “While I appreciate the need to make a decision soon, we still must fully consider all issues, which we can only do in a face-to-face meeting.”

Here’s an example of temporizing. A few years ago, I was consulting with a company considering the termination of a high-ranking executive. The losing end of a wrongful termination suit would yield substantive exposure. So, I, the Associate General Counsel and the decision-maker (who worked in another facility about one hour away by air) had a conference call. The decision-maker wanted to fire the executive ASAP. Forgetting Dr. Johnson’s advice, I started to lecture the decision-maker on why he must come into headquarters for a face-to-face meeting. The GC held up her palm, cut me off, and calmly said: “Joe, would you buy a $500,000 piece of machinery without looking it over and talking with the key people face-to-face? Of course, you wouldn’t, well we’re talking about a $500,000 decision



Ten Phrases Lawyers Hear that Portend Ethical Disaster

by terminating Jack? (pause) And, then she closed the deal with a “story”: “And remember what our Joe says, ‘Reasons twice, act once.’ So, when do you want to come in?” Bingo, it worked. Why? She didn’t lecture—she told a story.

Think persuasion, not finger wagging lecture.


I love noir fiction. And there are few better than Doug Swanson, whose protagonist is Dallas PI Jack Flippo. Listen to this from his book “96 Tears:”

Jack thought about big, nasty surprises, how they shouldn’t happen. Not if you asked all the right questions, not if you paid attention. You only had to be alert for the signs: the spot on the skin, the smoke on the wind, the noise at the window, the unreturned kiss. See it coming. That was the trick.

Want to see it coming? Here are 11 warning signs that an ethical issue may pop up.

(1) “Isn’t it obvious?” I hear this from operational managers refusing to hire a disabled

applicant: “Isn’t it obvious that a man with only one arm can’t do this job?” This mind set unwisely forecloses the ADA’s mandate that an employer must determine whether an employee can perform the essential job functions, with or without a reasonable accommodation. Or saying “Isn’t it obvious that we do not want to hire a convicted felon?” This too unwisely ignores the EEOC’s new guidance that automatic exclusion from employment because of a felony may be a proxy for race discrimination because blacks are convicted of crimes on a disproportionate basis. I suggest following my mother’s advice: The more something goes without saying, the more it needs to be said.




(2) “This is a no lose case. Guaranteed two comma verdict.”Listen to this from Proverbs, 28;20: “He who maketh haste to

be rich shall not be innocent.” Isn’t that the truth? Whether the fictional Gordon Gekko or the all too real Bernie Madoff, they show their lack of character from the get-go, promising easy wealth, eschewing hard work. The best antidote is to be a person of character. As W.C. Fields wisely explained, “You can’t cheat an honest man.”

(3) “We must decide today!”Here is the greatest enemy of an integrity based decision:

unnecessary time pressure. “Fire the employee now!” or “We must get the widgets out the door today, quality control be damned” or “The entire world is watching, the Challenger must launch.” To paraphrase H.L. Mencken, decisions made under unnecessary time pressure are usually “swift, sure, and wrong.” When under pressure to “do it now” ask this question: “If we had ten times as much time to make the decision, would it be the same decision?”

(4) “Everybody else is doing it.” Here is a sampling from the last 31 years: “Companies in my industry

don’t pay overtime. Why should I?” and “My competitor across town fired the union organizer in his company and nothing happened to him.” We are seeing this now with the Lance Armstrong scandal. Here is the sad truth: 20 of the 21 of the top 3 finalists in the Tour de France during Armstrong’s win streak have been associated with doping, and the other cyclist is under suspicion. (Read http://m.usatoday.com/article/news/1635499).

So, competitors reason that they must cheat. Circumstance gives them no choice. What is at first rationalized as necessary self-help ends up in disgrace. Stephen Cope, in his book “The Great Work of Your Life: A Guide for the Journey to Your True Calling,” explains that the Bhagavad Gita teaches that it is better to follow your true dharma and fail than follow the false dharma of the others and succeed monetarily. And, let’s face it: the truth comes out in the end.




(5) “The other side’s problem.” We hear this phrase in litigation and deal making. Things are

percolating along and someone on your team says “You know, should we be doing xyz?” or “Does the other party know about this issue?” When the caption is the answer, stop and ask: Are we saying this because it is true or because it is convenient? Convenience never trumps ethics.

(6) “We can’t change course now. We have too much invested.”This is false dichotomy territory, into an either/or mindset. How to

break through? Mary C. Gentile offers this advice in her book, “Giving Voice to Values: How to Speak Your Mind When You Know What’s Right:” change the frame from “we did not get what we wanted” to “what did we learn from this experience?” Failing to do so conjures up, for me, lines from W.H. Auden’s “The Age of Anxiety:” “We would rather be ruined than changed/We would rather die in our dread/than climb the cross of the moment/and let our illusions die.” Change course. It’s the smart play.

(7) Another pair of eyes to the project? Your’ re joking, right? What a waste!”

True, projects are overlawyered and overanalyzed. But active resistance to advice is a telling sign that something may be seriously amiss. Take it as a warning to press all the more for that other set of eyes. An ostrich-like attitude of self-delusion leads to disaster. Listen to Proverbs 1:30-31: “They would have none of my counsel/and they despised all my reproof/therefore shall they eat the fruit of their own way/and be filled with their own devices.”

(8) “We’ve always thought about (xyz) this way. And, we always will.”I can do no better than Justice Felix Frankfurter who decided a

legal issue one way in 1943, and then completely reversed course in 1949. He gave this explanation in his opinion: “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.” Genius. Henslee v. Union Planters Bank, 335 U.S. 595, 600 (1948).




(9) “It is what it is.” Huh? Once upon a time, this phrase actually had a somewhat

graphic meaning. (Check out the Urban Dictionary on the internet.) Now, it has bled into everyday conversation, used principally by those who want to sound insightful and wise but who are just dazed and confused. Only Buddhist monks are allowed to talk like Buddhist monks.

(10) “You are the most wonderful person I have ever met. I feel we were meant to (fill in the blank as to activity).”

Beware flattery without facts, especially when it comes too fast, too soon. It is a sign of a sociopath (a/k/a psychopath). They target their victims (people of use), compromise their integrity, exploit them, and toss them aside when done. And, it all starts with false flattery. For more information read “The Sociopath Next Door” by Martha Stout and “Without Conscience: The Disturbing World of the Psychopaths Among Us” by Robert Hare or try “Othello” where Shakespeare identified the prototype sociopath, Iago, who remarks “When devils will their blackest sins put on they do suggest at first with heavenly shows ...” (Check out my column on Othello from the Literate Lawyer).

Speaking of the Devil, watch this scenario from “The Devil’s Advocate,” a truly horrible movie. Al Pacino is Satan, with his day job being the Managing Partner of an international law firm. He counsels a colleague, who knows Pacino is Satan: “Don’t get too cocky. No matter how good you are. Don’t let them see you coming. That’s the gaffe, my friend—make yourself small. Be the hick. The cripple, The nerd. The leper. The freak. Look at me—I’ve been underestimated from day one.”

Here is the title card: Flippo in the white trunks v. Satan in the red. I’m in Jack’s corner, hoping and praying to see it coming. The Devil be damned. Listen.

The unethical always tip their hand.



We Are All Biased

We Are All BiasedYes, we are. Here are common types of biases in decision-making

from J. Keith Munningham:Confirmation Bias—We’re all guilty of this one, and you see it often in employment discrimination cases with juries. A person reaches a conclusion (usually very quickly) and then accepts all information coming in that confirms their initial viewpoint, and rejects or twists around all information coming in later that is inconsistent with their initial viewpoint. At its extremes it can have devastating consequences. Going back to the Challenger disaster, Thiokol’s managers (the company that designed and manufactured the Challenger) looked at the engineers’ data from NASA and they interpreted it as confirmation of their decision to launch, viewing what was actually ambiguous information as support for what they wanted to do. And—more fatally—confirmation bias choked off their desire or interest in seeking information that might disconfirm their initial tendency to launch.

How do you avoid this bias?• Ask a disconfirming question. Something along these

lines: “Short of [doing x], what could we do to [achieve y]? The purpose of this question is to disprove the initial belief that you attach yourself to.

• Build counter arguments. What’s the strongest or best reason to do something else? The second strongest or best reason? The third?

• Consider your own motives. Be brutally frank with yourself: Are you really trying to gather information to help you make a smart choice, or are you just looking for evidence confirming what you’d like to do?




• Seek out the help of others, but don’t ask a leading question.

The Availability Bias—Here’s a question for you before we look at this: Which causes more death in the United States—colon cancer or motor vehicle accidents? If you’re like 86% of the respondents in one study, you said motor vehicle accidents. In reality, more deaths result from colon cancer. Why? Because of their greater publicity, instances in which auto accidents lead to death are far more available in our memories. Simply put, we remember more recent or sensational information better than older or less sensational information.

How do you avoid this bias?• Avoidrelianceonmemory.

• Knowthat thecauseofanoutcomemaynotbe themost available factor that comes to mind.

• Gettherightfactsonpaperandinourheads.

The Fundamental Attribution Bias—Our minds do not accept that the world in random. As popular novelist Tom Clancy, said, “The difference between fiction and reality is that fiction must make sense.” But our minds—and this operates when we’re making decisions—want it to make sense—we don’t want to believe that things just happen and believe that someone must be a fault. Thus, rather than recognizing that situational forces such as bad luck or an outside factor caused an outcome, we assume that a person’s action or lack of it, caused a problem.

How do you avoid this bias?• Embrace a “constellation of events” It may not be

someone’s fault. This is especially important in termination decisions—if it is someone’s fault,



Think Ham & Eggs

termination may be called for: if mitigating factors come into play, maybe not.

• Look for all contributing causes. It is too easy to want to place blame on one person’s shoulders. If an employee makes a mistake our natural instinct is to blame that one person. But, before doing so, ask yourself the following question: Are others also culpable? Look at issues like: “Was the employee properly trained for the job?” “Where was the supervisor when the incident occurred?” “Did the company have any checks and balances in place?” If you don’t, you can bet that the jury will ask these questions.

Know Yourself.

Think Ham & EggsHow does a company go about instilling ethics into everyday

operations? By thinking ham and eggs, but more on that in a minute.A survey by KMPG shows that 80 percent of employees who felt that

top management would uphold ethical standards would recommend their company to recruits. But what happens when employees perceive management as taking an ostrich-like attitude of self delusion? The percentage nose dives to 21 percent, and the percentage of those believing current customers would recommend their company to others tumbles from 80 percent to 40 percent.

Too often lawyers think a corporate ethics policy is the start and end of a commitment to business integrity. It isn’t. The company’s employees, its most valuable asset, look beyond the written policy to the actions of management. While ethics policies are helpful, there’s no comparable impact to executives putting themselves on the line. It’s like a ham and eggs breakfast; the chicken is involved, but the pig is committed. Same here. Executives need to lead by example, taking stands on issues impacting business integrity. When ethical standards are embraced at the top, they’re embraced down the line. Look at this from the Ford Motor Company:




At Ford Motor Company, we endeavor to become a leading contributor to a more sustainable world. Corporate citizenship is an integral part of every decision and action we take. Corporate citizenship focuses on who we are as a company, what we offer in the market place, and how we conduct our business. We aspire to be one of the most respected, admired, and trusted companies in the world.

In his book, Net Words, Nick Usborne suggests revising a policy like this to speak in a more human voice.

At Ford Motor Company, we try hard to follow business practices that are sustainable in the long term. As a company we are aware of the impact we have on the planet around us. This awareness shapes who we are as a company and how we conduct our business. We are working hard to earn your trust.

As Usborne points out, “Simpler language. Simpler concepts. Simpler promises.” Employees will be at a loss on what to do, or where their company is going, if all they get has the substance of soufflé.

Find a good model, Jeff Seglin’s book, The Good, The Bad, and Your Business talks about some:

Model 1: Can I sleep at night?

While some sound enticing, they aren’t all helpful. One is the “Can I sleep at night?” test. That’s not much help; after all, executives lie awake at night precisely because they have done the right thing and because they understand their decisions impact lives, with real, not theoretical consequences.

Model 2: Do I like what I see in the mirror?

Similarly, the “look in the mirror” test requires you to ask yourself, “What kind of person do I want to see when I look in the mirror in the morning?” Our take is the same as journalist H.L. Menckens’: “For every complex problem there is a solution that is simple, neat and wrong.” A couple of other on our “10 Most Wanted List” parade;



Think Ham & Eggs

“No good deed goes unpunished” and “Character is what you do when no one else is watching.”

Model 3: The CEO Model

Norman Augustine, Lockheed Martin’s former CEO, is quoted in Jeffrey Seglin’s book as saying there are four questions that must be asked before making a decision: Is it legal? If someone else did it to you, would you think it was fair? Would you be OK with the decision if it appeared on the front page of your hometown newspaper? Would you like your mother to see you do it?

Model 4: The Front Line Model

For those close to the front lines who are charged with implementing decisions:

• Have we accurately figured out the issues at hand? What is the purpose and intention of our decision?

• What are the effects on others—our shareholders, our employees, the public and other companies?

• Will it be a valid decision over time, or are we deciding based on a short time frame or expediency?

• Are we omitting contradictory facts from our analysis for convenience’s sake or to bolster the favored decision?

• Could you tell your decision without qualms to your boss, your CEO, the board of directors, your significant other?

Model 5: Knowledge and Control

What do we mean? Ask yourselves these questions: Are we telling our employees about what the company is up to and what we expect of them, and are we investing them with the tools to act on the knowledge?




For instance, don’t just let employees know business is off without also giving them opportunities to develop new skill sets to avoid being caught up in a reduction in force. Similarly, don’t simply parade out your company’s ethics policy without also providing a way to register concerns about it effectively. The knowledge and control model comports with business integrity and provides ammunition for you in a lawsuit. When a jury sizes you up, they will think to themselves: “If I worked at this company is this the way I would want to be treated?” “Even if I don’t agree with their decision, was it made conscientiously?” “Would I feel safe if I worked here?” Often, decisions on business integrity come down to finding the right process.

Find a moral – live it.

It’s About FundamentalsLet’s go to Vince Lombardi. His football insights are equally applicable

to integrity based decision making. After the Green Bay Packers suffered an embarrassing loss—tackles missed, passes dropped, kicks gone wide—the team assembled waiting for wrath to descend upon them. And, they waited and waited and waited. Finally, Lombardi came in with a football in his hands. Holding it high above his head for all to see, he looked around and quietly said, “Gentlemen, this is a football, Let’s try to remember that next Sunday.” He then walked out. The lesson: the biggest messes result from the most fundamental mistakes. The type of mistake anyone can make.

The Enron crisis was not caused because executives failed to grasp the complex. Rather, they refused to appreciate the basics. Here’s an example. Several years ago, two companies were sued in an age discrimination case. I was representing one and a very fine and very experienced lawyer the other. While on a plane to Seattle for some preliminary interviews, my colleague was looking through some documents and loudly exclaimed, “Look at this! It’s a memo by the Human Resources Director with the ages of the employees subject to termination, their tenure and compensation levels. It’s a smoking gun. It must be destroyed. After all, it’s not under subpoena or discovery requests.” I suggested (keeping with Dr. Johnson’s wise counsel) that



The Real Golden Rule?

when depositions were taken that the HR Director might be asked if he prepared any written documents and that “Yes, but I destroyed them.” Why? “Well our lawyers told us to do so.” Now, imagine us a few weeks later, standing in front of a federal judge, and explaining how we came to give that advice. This is a technique known as engaging in prospective hindsight. It takes a hypothetical event and states it as a reality. Something along these lines: Pretend it is two years from now. The plaintiff has discovered that this document was destroyed. The court has been informed. Explain what we tell the court on how and why this has happened.

When a hypothetical event is treated as a reality, people are far more creative at coming up with reasons for why something could happen and the quality of their thinking improves dramatically. Oh, by the way, the next day at breakfast, our better rested colleague agreed. Here’s the point: whether you’re a 30-year or 30-day lawyer, we all—every single person reading this article—can make the same mistakes unless we always return to the fundamentals.

When in doubt, return to the fundamentals.

The Real Golden Rule?The problem with the Golden Rule is it just sits there, like a fish on

ice at the local grocery store. Statements don’t move people because they are static. Statements do not engage the mind or the soul. That’s why I was struck by the “Three Rules of Thumb” included in the West Point Ethics System, as explained by Ronald A. Howard and Clinton D. Corver in Ethics for the Real World: Creating a Personal Code to Guide Decisions in Work and Life. If a cadet can answer the following three questions “no,” then a decision passes muster. If not, it is red-lighted. Here they are:

1. Does this action attempt to deceive anyone or allow anyone to be deceived?

2. Does this action gain or allow the gain of privilege or advantage to which I or someone else would not otherwise be entitled?




3. Would I be dissatisfied by the outcome if I was on the receiving end of this action?

When clients are making really hard ethical decisions, they need to hear the Golden Rule in the form of specific questions, which generate specific actions, not platitudes.

The Golden Rule consists of golden questions�

ReframeI enjoyed reading Giving Voice to Values: How to Speak Your Mind

When You Know What’s Right from Mary C. Gentile. She talks about how to change the mind of someone who is invested in a bad decision, but who will not change course no matter what.

Why is someone so stubborn? Gentile tells us that it comes from the all too human trait of fearing loss more than enjoying gain. And we fail to change a losing trajectory from our tendency to frame issues in terms of a false dichotomy: “We are either winners or losers, in control or controlled.” And thus wall-off new information and points of view. Her solution? Help others view the previous decision as already having paid off, even if what the person has gained is not what she anticipated. Reframe from a “we did not get what we wanted” frame to a “what did we learn” frame. I leave you with W.H. Auden and my mother. Auden nailed the human tendencies that Gentile writes about “We would rather be ruined than changed/we would rather die in our dread/then climb the cross of the moment/and let our illusions die.” My mother, the pragmatist, taught me that “all experiences in life are good ones, as long as you draw the right lesson from them. Otherwise it is just something that happened to you.”

You can’t change the facts, but you can change the story.



The Art of Written Communication

We speak, but we also write. Our job is to sharply refine issues, not to muddy them. When I was a new lawyer at the NLRB, I wrote my first brief. I got to work early, put it on my supervisor’s desk before he arrived, and went back to my office to await the accolades. After waiting for what seemed an eternity, he finally ambled into my office, plopped the brief on my desk, and kindly remarked, “Partner, this brief doesn’t follow the Ned in the First Grade reader principle.”

Seeing my puzzlement, he said, “You know, Ned: This is Spot, Spot is a dog, see Spot run.” I was upset. How dare he question the work product of an honors graduate of a solid law school? While, I re-wrote the brief and re-submitted it. A week later, I came into work, saw the response brief in my inbox with a big “A+” on the cover, signed right below by all the office managers from the Regional Director on down. Thanks, Dwain.

Reduce Passive VoiceThis tip is recited in every manual and course about effective writing.

Some bean counter actually figured out that good writers use passive voice about 25% of the time and lawyers (who are notoriously bad writers) use passive voice about 75% of the time. Law professors are even worse, often using passive voice 90% of the time.

How can you identify passive voice?-Look for a “be” verb with a verb ending in “-ed”- Look for a sentence that de-emphasizes the actor, and emphasizes the object.

Some examples:The bill was passed by the Legislature. (Passive).The Legislature passed the bill. (Active).




The deadline was missed by the Plaintiff. (Passive).The Plaintiff missed the deadline. (Active).

By reducing passive voice, you eliminate unnecessary words and add clarity.

Active Words Drive the Story; Passive Words Slow it Down

Everything can and should be shortened: words, sentences, paragraphs and sections. The result is a product that gets to the point and is easy to read. Some general guidelines to use:

Never have a paragraph that covers a whole page. It’s like a block of ice. You can break it up with bullet points or a chart or turn it into two or three paragraphs. It will be much easier to read.

Keep sentences short. If a sentence is longer than a couple of lines, it may be too long. Use one line descriptive headings as signposts. For example:Plaintiff starts work at the company and complains about a co-employee stealing from the company.

Chose simple words:

Instead of: Try:

Additionally AndIn addition toFurtherFurthermore

Currently NowAt the current time At this time

However ButDue to the fact BecauseOn the basis ofFor the purpose of ToIn order to



Complicated Issues Need Simple Writing

Use specific words: mealy mouthed double speak can result in wordiness. Here’s a quick example:

Please extinguish all smoking materials. (Vague). Please put out all cigarettes. (Concise and easier to understand). Eliminate unnecessary adverbs and adjectives.

Instead of: Try:

Totally without foundation Without foundation Unsupported

We obviously need We needWe clearly need

Remember your audience—they are busy people who already have too much to read.

Complicated Issues Need Simple WritingThese days we are finding that communications require discussion

of technical issues. And it’s not just because of the growth of high tech companies in Texas (although that is certainly a factor). The other reason is that technology has permeated all aspects of our lives. So a simple case about an employee incorrectly recording his work time can involve complicated issues related to hand scanning devices and computerized time systems.

When you must address technical material head on, you need to determine how best to present the information. Generally, the more technical the issue, the simpler your writing needs to be. If you are writing about something technical, make sure you understand it yourself. This doesn’t mean that you have to get a computer science degree and understand the inner workings of the machine. But you do have to understand all the terms of art and source material that you are using. Then focus on plain language. Consider using an analogy to something we all know about.

Understanding comes before explaining.




Don’t write like a lawyerThe symptoms: using long sentences, clauses within clauses, and

legalese. The solution: write the way you speak. Would you say, “The reasons are fourfold”? No. You would say “There are four reasons.”

Some words scream “legalese.” These include “heretofore,” “hereunder,” “said document,” “wherefore.” You should eliminate them from your documents.

Try reading your work out loud. Does it sound unnatural? If so, it’s probably full of legalese. Then verbally explain your arguments to a non-lawyer friend (don’t worry, you can use an imaginary friend here). Your actual produce should be similar to your verbal, non-legal explanation.

Even if your client is another attorney (for example in-house counsel), you should avoid legalese and legal terms of art in evaluation letters and case memorandum. The reason? While the in-house counsel may understand what you’re saying, you never know who is going to read your work. The client’s vice president may read your written communications. Also, using plain language that anyone can understand will help the in-house counsel—she doesn’t want to spend her time translating your legalese into plain language for the operations people.

Keep Notes Neat and Professional and To the PointThe first goal, of course, is to get your message across. But you have

to remember that the information may be used for other purposes. For example, if you are investigating a claim of harassment by one employee, the notes you take may very well be the cornerstone of any defense your company has if a lawsuit occurs. If the notes are not neat and professional or are incomplete real trouble can result.

For example, in one of my cases, the investigator, during a witness interview, had written the words “sexual harassment,” with no explanation by them. About six months after the investigation, when the lawsuit was filed, I interviewed the investigator. The investigator could not remember what the significance of the words “sexual harassment” was in her notes, she couldn’t remember if she asked about it, if the



“The Difference Between the Right Word and the Almost Right Word is the Difference Between a Lightning Bolt and a Lightning Bug�”

witnesses brought it up, and whether the witness denied or confirmed that sexual harassment occurred.

Try to make your documents complete, so that they can stand on their own without you. Also, never make any jokes, sarcastic comments, or flippant comments in your documents.


This quote from Mark Twain says it all. A slight shift in emphasis in communicating a difficult issue to a client can make all the difference between the client accepting or rejecting the counsel being given. Clients are willing to accept bad news if it is presented in a way that is palpable, understandable, and confirms the lawyer is a friend and not an enemy. This arises in a variety of problem situations, which are diagramed in the table below.

Problem Solution Example

Describing difficulties with the case

Impart a shared sense of concern (a la President Obama)

(1) Let the client know you are on the same side. For instance, use a word like “challenge,” not “problem.” (2) Here’s another illus-tration: “The litigation risk with this type of case— and quite frankly, our great frustration with these cases—is that a jury determines that the [protected class] was a factor in the decision for termination, then the

(Continued )





jury may award damages that exceed any logical or rational basis.”

Telling the client an expected bad result

(1) and (2) Use of positive/negative sentences make difficult statements more palatable to hear

(3) Focus on the law

(4) and (5) Ease them into the news

(1) “While we relish the opportunity to try a hotly contested case (positive) we are also acutely aware of the dangers inherent in a jury trial (negative); (w) “While we acknowledge the many arguments in our favor we still face some indisputable and troubling facts”; (e) “When the facts are viewed through this legal filter ...” (4) “We acknowledge that the jury will undoubtedly be composed of the peers of the plaintiff.” (5) As difficult as it is for me to say and you to contemplate ...”

CEO is a terrible witness

Make flaws into virtues “Many of the qualities which make Sue such a dynamic CEO may, however, make her come across to the jury as opinionated and rigid, when in fact she is decisive and self-assured.




Client who says “I wasn’t thinking of his [sex] [race] [age] when I fired him and the plaintiff is focusing in on trivia.”

An analogy is worth a thousand words

Use O.J. Simpson trial: “A typical plaintiff’s tactic is, in fact, to focus a jury’s attention on what we would consider irrelevant issues. This approach is not unlike the O.J. case, where his lawyers convinced the jury to ignore the blood the police found on the driveway and, instead, to focus on the minutiae of how it was collected and maintained.”

Reluctant to settle

Apply slight pressure “We have a window of opportunity to resolve the case …”; “We will not know how serious the plaintiff is on his offer, unless we test the waters …”; of course, if the plaintiff continues to insist on an unrealistically high settlement demand, then the decision on whether to settle is essentially made for us …”

Client jumps to conclusions

Objectify the problem Try phrases like: “there is a good reason for the hearsay rule …” or “let’s be careful about playing

(Continued )






doctor” (a useful phrase in personal injury or disability discrimination cases) or “the lawyer in me …”

The messenger gets blamed

Objectify the bad news; distance yourself from the news

Try this: “while we hotly contest it, we know that the plaintiff will argue …”; “We can reasonably anticipate that the Plaintiff …”; Also using a grease board or video deposition clips to deliver the news will focus the client’s attention on the message, rather than the messenger.

Remember: How you say something is just as important as what you say.

Make Writing Simple and DirectLawyers pride ourselves on being good writers, but sometimes

wordiness obscures the power of our messages. Help is available. Bryan A. Garner’s new book “HBR Guide to Better Business Writing”

is full of useful advice. I especially enjoyed the section on avoiding business-speak. Here is a sampling from one of his charts:

• Replace“atyourearliestconvenience”with“assoonas you can.”

• Get rid of “in light of the fact that,” and choose“because.”

• Dump “we are in receipt of” in favor of “we’vereceived.”



Make Writing Simple and Direct

• Slash“thankyouforyourcourtesyandcooperationinthis matter” to “thank you.”

Bottom line: Cut the noise. Peggy Noonan makes the same point in “On Speaking Well: How to Give a Speech With Style, Substance, and Clarity.” She argues that people need to use good and simple words to express heartfelt feelings. She notes that a soldier shot in battle does not explain to his buddy that a bullet has struck him but that he has been hit.

Noonan recommends watching a scene in “The Godfather: Part II” in which Hyman Roth speaks from his heart to Michael Corleone about Roth’s murdered friend, Moe Greene. Greene is a Las Vegas casino owner, and Roth knows Corleone ordered him killed.

Francis Ford Coppola and Mario Puzo, author of the novel “The Godfather,” wrote the screenplay. Noonan calls the speech one of the best in the second half of the 20th century, and she’s right. I watch it whenever I am stuck.

Garner, Noonan and Coppola/Puzo—they can help lawyers express ourselves.


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