So the United States is pulling out of Afghanistan and the New York Times does their analysis of what now needs to happen to make it work.

It’s a good legal business model, as well as a political one. The outline the editors employed included such terms as: Governance, Training, Finance, Talking, Economic Stabilization, and generally various categories that address dealing with your internal an external enemies and neighbors whether friend or foe.

So within every business there is governance and more than likely it is driven by a personality, a founder or owner whose personality masters the universe and dictates certain systems or culture (See On the Night Stand of “Fourth Generation Attorney – Since 1887”). Afghanistan has not government or banking system but you do but even then you need to address how your governance is driving your business through the legal and regulatory minefields for your business. 

What is your plan?

My guess is you really don’t have one. But don’t let that get you down, neither does your competition.  Have you notice that “survival” is the controlled response of businesses after the latest crises and long haul real estate/banking/financial markets recession. We are corralled into the simple conditioned response of survivors: “We are lucky to be alive” or “Life is fragile and considering that we are doing ok” or “At least no one has been thrown in jail!”

These very low standards of excellence may be your culture and it is difficult to forge higher ground when you are merely looking to survive. But while these cautionary approached may be wise they may be fool hearty if we do not replace the culture with a “Go for it” mentality as well.

Training and Finance

Have you looked at your books lately?  I mean the nitty-gritty detail. You have endured in part because you have held on to employees that add value to your business, but some do not. Have you evaluated your employees lately – there is real value in each and how you do it is critical to both cajole and encourage. If you are in an industry where you need to do a lot of training of employees your team is probably pretty darned good.

Execution will need to improve. It is always interesting to write this as we look at baseball franchises building their teams for the season – “How are the Red Sox going to find a fifth starter!”

“Who is playing right field?”

How the hell do we not have a shortstop?” 

Evaluation of technology and employees and filling in with training to keep up with what is coming around the bend is critical to your success.

The Enemy Within

 An old sage once reported to his business after an evaluation was done of their operations.  “We have found the enemy the enemy is us!”  In Afghanistan who ever governs will need to address the Taliban will have to live next to Pakistan. 

 Make peace with your enemies sooner than later, talk to them and purge your enemies within even if it is you!

I’ve got a secret!

Remember secrets, maybe when you were a kid in the school yard, some information that someone had but no one was really sure whether there was anything to it. Yes there were whispers and maybe laughter and furtive glances protecting the secret. 

It was affirmed by the cry: “Don’t tell anybody!”

People have secrets. Companies have secrets.We know this as lawyers and client confidentiality protects those secrets, but what I am talking about is secret information in your workplace. 

Do you know of any secrets?

If you review your employment agreement, you will most likely see sections of it that mention “Nondisclosure” and “Confidentiality.”  Someone explained that certain things were “proprietary” to the company and that it could not be shared.

Keeping a secret is hard work, it was when you were a child– being cajoled or interrogated by people trying to get the secret out of you — and today in business it is just as hard. But what if your secret isn’t a secret at all?

What makes something a secret?  How is something confidential?

It takes an effort by the company to maintain a secret. By and large there is not a lotof attention given to the practices and procedures necessary to maintain your secret.  Many people come to me wising to honor their employment agreement and see such terms as “confidentiality” and “proprietary” and want to abide by it, but in fact the company they worked for did not keep anything a secret. There were no procedures, passwords, security systems or anything that hinted that a customer list or anything else for that matter was a secret.

At the same time we advise companies who have secrets that need assistance in producing the effort to protect their information as secret.

Companies especially smaller ones that may have printed an employment agreement form off the Internet are vulnerable here. Review your company secrets this year as the economy heats up and employees look elsewhere employers may lose some valuable competitive advantages.

Happy New Year!

In the season of Bowl Games and NFL Playoffs, you just cannot underestimate the power of football in the United States.

And put it in Pennsylvania or Texas or Florida or Georgia and you have a super-powerfully influential sport.

For university’s in the football business you just have to understand that graduation rates may fall for athletes, academic standards may be hurt in the  US New and World report annual rankings but the  overall student body will love it. With painted  faces walking around campus with no shirts on  or bikini tops in frozen weather it is an iconic American vision on the college campus today not to mention alumni and television dollars pouring into their … company… uh college.

Those of us that attended schools that don’t have a big football program are envious but like my neighbor up the street who made up for it by adopting Michigan as his preferred college  football program (he flies the Michigan banner on his barn) we survive and pick a team and follow them anyway.

Penn State was one of those teams for many people until yet another sex scandal hit another major Pennsylvania institution ( the Archdiocese of Philadelphia the other) much to former Senator and presidential candidate Rick Santorum’s chagrin.

So the business law point of all this has to be yet another situation where institutions are dwarfed by personalities in them. This is not unusual in a entrepreneurially minded country just as Bill Gates dominated Microsoft and the late Steve Jobs dominated Apple Computer Co., the power of personality in our age transcends some organizations.

So how is this managed? 

When the person, the founder or the iconic football coach messes up so royally that a double standard is used to confront the problem — like let’s ignore it– the institution is fatally wounded. It leads to severe damage whether your PR firm thinks so or not you should investigate it because in all likelihood it is happening in your organization.

Is there someone who is such a royal pain in the ass that people begin to create new systems to deal with them?

Are incompetent people protected?

What of succession planning and delegation of authority to mentor new leaders in a positive way so that an institution does not become so reliant on the image of the iconic [fill in the blank] partner, founder, engineer etc that the entire company sits in wait for change to come but it doesn’t until the New York Times is at your door? 

Whether we believe it or not many companies especially smaller, close corporations and family businesses have the same succession strategy as North Korea!

So try to resolve to avoid the Joe Paterno problem and look towards modern techniques to evaluate the state of your company with key employees.

A little effort now that may be slightly painful is better than the implosion that occurs when you look the other way just ask Joe Paterno!

Herman Cain is running for President of the United States.  Historically not a  politician he must now run the gauntlet  of public scrutiny in a life that was generally lived in the halls of corporate America.

OMG!

So first there was the harassment and the reference to a “settlement” –confidential of course so there are no names and faces attached. This would drive a curious media mad. So they kept digging. They didn’t need to go far.

Another surfaces…and then another. The hand up the skirt and the request for well…lets keep this legal.  Like out of a movie script  (a lousy one at that) he says “Well you want the job don’t you!”

In the end…Four in all.

So while he was in the work place these events were apparently not a problem.  Employers,  Directors either knew of it or not and failed to do anything — The Joe PaternoSyndrome.

This sounds extreme and may not apply to me, Matt! But do you want to bet on it! 

A candid and full assessment of what goes on in your organization is more critical than ever as people will feel empowered by these situations and come forward. 

What about the iconic employee, boss, supervisor that cannot be approached without getting the ax! Enter Joe Paterno a Pennsylvania God at Penn State. He had influence throught the corridors of the legislature in Harrisburgh. And maybe in other sectors as well as the police look for an old police report that seems to have disppeared.

The point, eventually they get it and as an employer this is an easy call. If you are an employer — kiss him/her goodbye. You will do better without him or her. Really.  In  the ever changing world everyone is expendible — unless you married to your boss then that is a different situation all together. 

 But in reality sometimes employers get a bit too caught up in the potential legal ranglings and forget the goals and objectives of their buseinesse and begin to “live the litigation,”  this is a syndrome I typically recognize and discusss with my clients. Life moves on.  The litigation takes time and you have to continue with your life both personally and from a busienss perspective. 

For the employee?

Well it is the most difficult issue you will face and you will endure these situations for years to the detriment of your health, marriage and financial success.

Check in to review the  laws that protect you. You might find a rewarding exit strategy.

NOTE: 

[I guess with all the discussion of employment rates and jobs and the volatility of the stock market and the looming presidential primary season, I Will be focusing on jobs and employment over the next few weeks.  The theme-- it is crazy out there!]

It is kind of amazing what spectators we are. 

We sit on the sidelines and watch million dollar athletes fail in baseball over and over again. We scream at the flat screen in hi-definition.

In the “off season,” we are now into the analysis of business decisions and management techniques of the front office.

Did Francona burn out/lose control.

Was Theo focused? What about some of those high-priced free agents that went bust!

And then John Henry, the Red Sox owner drives into a radio station and demands to be heard to address the inaccurate comments of people who talk on the radio for a living.

How passive have we become! Or is this our idle gossip, our recreational pursuit when not at work. A lifestyle choice while your business suffers the same issues on a much smaller scale.

Maybe it makes us feel better about our jobs and businesses to see that everyone is screwed up.  In light of the exit of Theo Epstein and now the GM meetings coming up it still has left an imprint on the psyche of the community especially as Bill Belichek opens up the revolving doors in his defensive secondary and line with weekly hirings and firings.

In the end you and your company is as good as the people you employ.  And is it pretty easy to say that things are tough but at a recent SBANE meeting I was encouraged by the number of people who place people in jobs for a living and the employer demand for good people.  You can’t find them in some sectors and in most you need to train.

So what are you hiring and why is a strategic decision but how and how you let them go is a legal decision that needs some analysis.

This phenomenon is something I have noticed in numerous interviews, cases and negotiations I have reviewed or participated in recently. The phenomenon is simply this: 

There are two parties involved in a dispute and one abides by the rules and the other side seems oblivious to any rules! 

So, for example, can you imagine how much success you would have arguing or negotiation with a gangster (See Howie Carr’s Hitman), a Medillin Cartel member, or a suicide bomber?

These are extreme examples of a kind of  “rules breaker.” But if on the other side there is the party that steadfastly complies with rules — court orders that require things to happen at a certain date and time, construction issues that require some type of permit, paying your taxes, environmental permits, etc., the rule breaker can win every time in the psychological warfare of negotiation.

How then can your negotiation  have a level playing field?

What not to do:

You decide: “To hell with them, I’m going to break some rules!”

You will find that this backfires. That is  simply because the one thing that people who regularly break the rules are very good at is complaining about how others break the rules! People that do break the rules have no problem hypocritically pointing out  the horror of your indiscretions. (Usually with quite an attitude).

So you are now defending yourself about who is the party that least abides by the rules!

This becomes a diversion that the rule breakers love.

I have represented both by the way. The sorry fact is that rule breaking works…  If you let it!

So here is my Tip:  

Leave the rules out of it and think of your goals and objectives.

Also be reasonable in assessing the downside of violating a rule. It may not be the end of the world, but  could have an negative impact but probably not to the degree that you think.

So often we have someone complying with the rules to their detriment while court delays or actions of parties cause them harm? Often those things are used in the “street fight” portion of your dispute.  The side-show psychology of the contest where people want to gain an upper hand by filing a motion to score a point as if they are playing a video game.  They do this at a large cost — legal fees — and not with an eye on the game plan or their ultimate goals and objectives.

The conscientious addiction to not breaking any rule or fear of bending a rule or even being mistaken about whether a rule applies to you plays perfectly into the hands of people who do not abide by any rules.  So decide what your rules are and make your move consistent with an overall plan and a tough resolve to stomach some serious whining from the rule breaker.

The Massachusetts Lawyers Weekly recently interviewed the jury consultant to the Casey Anthony murder trial and there are lessons for all.

In short, the consultant and her staff monitored 40,000 web sites, blogs and Face Book pages and offered certain comments to “test”  how the public  would respond.  They took that real time data and shared it with lawyers defending Anthony who used it in their closing statements and to develop strategies on cross examination of witnesses.

Couldn’t you submit your dispute to the public for review and see what people say and think?

How different would it be from a jury? Less heavily “screened” than the Anthony jurors.

So what if you came to my law firm and told me a set of circumstances and I said to you lets put it out to the public and see what happens?  We could introduce the litigants in some way that gives people some level of attachment to or recognition of — the boss that tormented you at work, and put it to a vote!

Sound outrageous!

Let’s face it that’s what your asking your lawyer as you contemplate starting a lawsuit. you want to know: “Can I win?”

And I might say: “How the hell do I know do I have a crystal ball!”  (Only Kidding) But if you created “My Dispute” and sent out notices to people to review and you could even attach certain evidence and let people comment to see the reactions that they gave to your evidence.

Wouldn’t that help?

It helped Anthony and she was on trial for murdering her child!

It must work for employment disputes, divorces, contracts, juicy business battles…

The Boston Herald recently did a follow up article on the DeMoulas trial and at the top of the page there was  a survey question about what the dispute means for Market Basket stores and the comments rolled in.

Random comments that would give you an instant objective view of how perfect strangers — that is what a jury consists of — might think of your case.

Amy Singer, the consultant hired by the Anthony defense team used the blogs to see what was on the prosecutors mind  She said it was like having a “free shadow jury.” She goes to extreme measures to get to people who are against her client and then develop a strategy to move them towards her clients’ side.

In the Anthony case this was done in real time as people watched the trial unfold, they commented and people listened to them and fed the information to the lawyers!

Is this interactive, reality TV or what?

Is it legal? Fair?

So why not do this yourself?  Let’s talk about it.

Business is hard enough without a fight looming or getting embroiled in a contest either internally with an employee, partner or without,  from a competitor. 

These are side bar stress factors that do not help you in business but are necessary as you stay in business.

Stress can hit another level when the government walks in.  The IRS, OSHA , Defense Contractor Auditors, EPA, NH DES, MA DEP, health and safety people zoning whatever it is the specter of fighting the government is not in your business plan.

Regardless of what your fight is about there are rules that apply.  Having a team in place to help is one but if you are on your own here are a few rules to apply.

Rule No. One: Realize that time rules all!

We have a unique perspective on time. Those things that stress us out and loom in our mind front and center for any period of time appear to be longer to us.  its a torture in a way self inflicted by the fear of what is going on and the threat to your operation. 

It is a stress you want to eliminate as soon as possible.

But you can’t get rid of it though you wish you could.  Things take time and that irritates litigants more than anything. They are getting bills for experts and lawyers and nothing appears to be happening.  Dates get moved, court times are scheduled, you wonder how it will end.

It will end.  As a lawyer that is something that we can guaranty — some day it will end.

So what do you do in the mean time. 

Rule No. Two: Keep your cool!

What does that mean exactly Matt?

Keep your eye on the prize. Consider the fact that you are in a fight and you are throwing punches through your pleadings — complaints where you claim that someone has misrepresented themselves or that they liable to you for conversion of funds.  You accuse them of violating MGL 93A and are seeking an award of treble damages and attorneys fees.

You get an attachment against you.

You are in a fight.  It is going to be initially ugly then calming down when people invest money and time they change perspectvei  sometimes or things happen in their lives that change their position and that helps them move on to another issue hopefully fulfilling but different int eh end.

Stay cool and let time pass.

Rule No. Three : Compartmentalize. 

Just as you can adapt to dealing with your family issues and your business issues — if you can’t that is another issue — we can adapt tot he new reality of the pending or looming battle or disagreeable meeting or confrontation ahead. 

Rule No Four: Prepare. 

Organize yourself without beating yourself up about the predicament you are in.  You will need to review the documents and facts and circumstances over and over a gain and if you made a mistake relax! So what! The party across the table could be a total irresponsible person and just doesn’t care but you do.  Don’t let the “Rule Breaker” get an edge on you. Forgive yourself of whatever you have done in the situation and accept it as part of the battle plan. 

Rule No. Five: Investigate.

Have fun and reach out to sources that will assist you in evaluating your case — experts, witnesses and secure their testimony. Check out background information on the party litigant from informal sources — social media, blogs and Google.

If you take  proactive approach during the time it takes for the process to run its course, you will find that the litigation process can at a minimum be managed like any other issue in your business.

And you know how to do that!

A recent article in the Boston Herald  ( August 24, 2011 by Greg Turner) updates the latest in the DeMoulas family litigation history.  As I have blogged on this topic in the past Turner called me for my thoughts. 

The article was placed because of a pending report to be done by Former Appeals Court Judge Mel Greenberg who was hired by the corporation to do an internal investigation of the investment practices of trustees to an employee fund. His report is expected soon.

The decision to proactively handle this matter by the company and invite a top notch former judge to review shows evolution in the DeMoulas Family Feud. It is instructive to business litigants. The message: Find creative solutions to your legal issues and proceed with some caution even if you are right!

Can there be any emotion left in this battle?

If that is drained then reason usually enters and people begin to listen but it takes time for emotion to run its course.  And it is no less important than money as people want to feel heard.

My theory has always been that Mike DeMoulas, now deceased, never felt he got a fair shake from former Judge Lopez ( a trial with no jury).  Had he thought he had he would have lived with the decision even if a bad one.  That quite frankly is how most litigants react.

But in the endless cases of the 1990’s, Mr. D, a man who patrolled the aisles of his stores making sure things were running properly and who picked up litter in the parking lots, had a fundamental feeling that his day in court was never real. It was suspicious to the hard working grocer. So the battle raged on.

Now, with corporate control and the company doing well, reason has entered the room and the parties have at least paused to fully evaluate what happened with regard to the investments and they will await the report.

However,if the tactical motivation by the Arthur S family group  is control — also an important consideration in litigation (feeling in control) – what would a change in management do to the operation of the company and is that in the companies best interest.

Directors are bound by a fiduciary duty to the enterprise and the shareholders primarily. Whimsical revision by judicial decision and not the drive for profit could be a dangerous setting in a tenuous economic climate.  In short, do we want the courts managing companies.

The lessons of the Demoulas family are instructive for all businesses… a look into endless resources for battle…kind of like the Department of Defense… but in the end the law of fiduciary responsibility govern the corporate enterprise and all are warned that the combination of endless funding, animosity and a big prize can propel  litigation into yet another decade!

The apology, is there a place for it in legal disputes?

This has been getting attention in the legal news in recent years with reports of physicians who goofed apologizing to patients and getting some results ( ie quicker resolution of malpractice lawsuits).

In Dan Ariely’s The Upside of Irrationality,the Duke professor makes the  ”Case for Revenge” (See Chapter 5) and experiments with social settings where people can seek revenge for some indiscretions (annoyances) directed at them. Most importantly in these scenarios he introduces an apology. 

Ariely is an economic behavioral social scientist but his results are telling (See the results on Pages 150 et al in his book).

In the scenario, a person is asked to participate in a study/survey that should take them about 5 minutes to do and for which they will earn five dollars.

He creates a control group, an annoyance group and then a third group that has the same experience as the annoyance group but an apology is added.

People are all mistakenly overpaid for their participation.  The premise being that if they are annoyed and upset and want to vent their revenge instincts — driven by pleasure portions of the brain, they will not return the money as a way to exact revenge. In short, they will fail to acknowledge that they were over paid because they are pissed off at the annoyance — Kind of the reverse of leaving less of a tip at a restaurant for a bad wait staff performance or poorly cooked dinner.

 Ariely’s study finds two things: 

 1. Apologies matter — at least in the short term limited to his study but the apology he concludes apparently cancelled out the annoyance. So that the people returned the over payment at the same rate as those who participated in the  study without any annoyance at all. 

2. Time heals wounds — When you delay the opportunity to exact revenge – the vengefulness receded.

As a human relation technique it would appear that admitting that you were wrong or apologizing may create future opportunities for you rather than digging in and letting the brain’s pleasure centers run wild at the prospect of revenge!