f/k/a archives . . . real opinions & real haiku

Robert I Sutton‘s new book “The No Asshole Rule: Building a Civilized Workplace and Surviving One That Isn’t” will be released by (Warner Business Books on Feb. 22, 2007. An identically-titled article is in the latest edition of American Lawyer, and was posted this weekend at Law.com (Feb. 20, 2007). However, the article does not deal directly with lawyers, despite the fact that a) many people consider the words lawyer and asshole to be synonyms and b) Sutton has written about the connection at least twice at his Work Matters weblog.

Bob Sutton is a professor of management science at Stanford University. He argues that “assholes” are bad for business, regardless of their individual effectiveness. In a favorable book review at Life at the Bar, Julie Fleming Brown explains:

“According to Bob, an asshole is one who oppresses, humiliates, de-energizes, or belittles his target (generally someone less powerful then himself), causing the target to feel worse about herself following an interaction with the asshole. (And, as his examples prove, this behavior is not by any means limited to male perpetrators or female victims.) These jerks use tactics such as personal insults, sarcasm and teasing as vehicles for insults, shaming, and treating people as if they’re invisible to demean others. Sutton distinguishes temporary assholes . . . from certified assholes, who routinely show themselves to be nasty people. The latter, he argues, must go [from the workplace].

In his weblog post “American Lawyer on THE NO A**HOLE RULE” (Feb. 11, 2007), Sutton says “I don’t think that there are more assholes in the law than in other occupations, despite the popular stereotype” and he notes that doctors appear to be more abusive in the workplace than lawyers. Nevertheless, Sutton explains that “there are some special challenges for law firms that want to enforce the rule.” He concludes, “Indeed, you might say that one key to law firm management is learning how to turn your assholes on and off!”

Sutton gives three reasons why application of his Rule is especially difficult at law firms:

First, there are big power differences in law firms among people at different levels, and as I’ve shown, there is a lot of evidence that power can turn people into selfish insensitive jerks, who act is if the norms of civility that the rest of us have to follow don’t apply to them!

Second, as I show in The No Asshole Rule, one of the primary causes of demeaning behavior, backstabbing, and an nastiness of all kinds is severe competition between individuals, when life is seen as an I win-you lose game.

Third, often “people hire lawyers to be tough and nasty –to do their dirty work. But people who are best suited for such work aren’t always capable of turning off their venom when they deal with staff members and fellow attorneys.”

Sutton is right that many people hire lawyers “to help intimidate rivals . . . through demeaning interpersonal moves meant to unnerve and intimidate opponents — dirty looks, put-downs, teasing, glaring, and intense eye contact.” He also suggests, there may even be times when those skills may help a lawyer “in the courtroom, a deposition, or a negotiation when used at just the right moment.” However, I’m pretty sure that such tactics are not as successful or as accepted as they once were, and I’d like to discourage their cultivation by newbie lawyers out there, who think they can turn it off and on at will.

stepping on
sidewalk ants the boy
everyone bullies

. . . . . . . . . . . . . by George Swede – Almost Unseen (2000)

In another posting, “Lawyers and The No Asshole Rule (Feb. 15, 2007), Sutton says that lawyers are naturally interested in The No Asshole Rule. He quotes from a 2004 piece by Aric Press, editor of American Lawyer, suggesting that law firms do “jerk audits.” Among Press’ insights, this one may be most telling:

“At a minimum, what I’m suggesting is that you [law firm managers] ask yourselves this question: Why do we put up with this behavior? If the answer is 2,500 value-billed hours, at least you will have identified your priorities without incurring the cost of a consultant.”

A few more thoughts:

1. As Sutton points out, the “nasty but neutral” defense is unlikely to assist you (or your client). “Equal opportunity assholes,” who demean people routinely regardless of race, gender, age — and regardless of pending litigation — shouldn’t count on throwing themselves upon the mercy of the court based on their inherent personality trait or genetic deficiencies. (see this Littler article, Nov. 2004)
2. The book offers a 24-question self-test to see if you are “a certifiable asshole.” You can take Sutton’s Asshole Rating Self-Exam (ARSE) at Guy Kawasaki’s ElectricPulp website. I expect webloggers will be tagging eachother to find out the results. Let me say in advance that I do not plan to take the test (much less reveal my results).
3. Over at shlep, I’ve posted much of the information presented in this post, but also explained why the rule works pro se, too.
4. Admittedly, it can at times be difficult not to respond in kind to the jerky behavior of your opponent. This President’s Week, you might try “learning from Abe Lincoln’s thick skin.”
5. See the take of “third wave” Texas lawyer Chuck Newton on The Rule here.

the gossip
her yard fills
with leaves

. . . . by tom painting – from the chapbook piano practice

“Frost has formed!”
he yells
then pisses

from the face
of the man yelling for me…
mist

don’t be mean
to that horsefly
skylight!

. . . by Kobayashi Issa, translated by David G. Lanoue

   The UK’s 5,000-member Association of Personal Injury Lawyers [“APIL“] has been waging a campaign to prevent an increase in the personal injury limits in the UK’s small claims courts (“small claims track”).  See, e.g., “Support Grows for Retention of Small Claims Limit for Injury Victims” (APIL Press Release, Dec. 11, 2006); and Response to the Better Regulation Task Force (APIL/DCA, May 2004; 18 pp. pdf.).  (via PIBLJ, Jan. 27, 2007)

The dollar limit for most small claims matters in UK courts is £5,000, up from £3,000 in 1999, and £1,000 in 1996.  However, the limit on personal injury and housing repair matters is still £1,000.  Because of that lower limit, almost all p/i matters are heard in the upper tracks of the judicial system.  In 2004, the Better Regulation Task Force produced a report titled “Better Routes to Redress” (48 pp. pdf.), which recommended (in Sec. 4.2, at p. 25), that:

[T]he Government carry out research into the potential impact of raising the limit under which personal injury can be taken through the small claims track. The research should establish a limit which best balances the benefits to the claimant and society against the costs.”

The Task Force noted that keeping the lower limit is supported by lawyers, who argue that p/i matters were too complex to be handled without a lawyer, and that the small claims track offered only limited recovery of costs, which was unfair to claimants in p/i cases, which can be very expensive.   The Task Force suggested that rules be changed to allowed recovery of reasonable medical expenses, and concludes that “allowing more personal injury claimants to go through the small claims track process will increase access to justice for many as it will be less expensive, less adversarial and less stressful.”  Its reasoning can be found in an excerpt provided below, under the fold.

 

 You may recall from our posting last week on personal injury self-help, that both the legal reform group HALT (in its p/i Consumer Alert) and self-help pioneer Nolo.com have stated that small claims court here in the United States can be an excellent place to bring p/i claims for relatively small amounts of money.  In addition, HALT’s small claims reform project has been advocating long and hard for increases in the small claims jurisdictional limits (hoping to someday reach $20,000).

 It its campaign against raising the small claims limit, APIL makes the arguments noted by the Task Force (complexity, inability to recover costs), and stresses surveys showing that the public is reluctant to go to court in a p/i case without a lawyer.   In addition, it frets that “In the small claims court, a claimant either has to pay for legal representation out of his own pocket, which many people can ill-afford, or stand up in court against the defendant without the benefit of a lawyer’s representation.”  This suggests that p/i lawyers won’t use contingent fees (which APIL calls “CFAs” — Conditional Fee Agreements) in small claims court, but I do not understand that position (and would welcome an explanation).  APIL also asserts that the small claims court will not assist the claimant to effectively bring his or her own case.  They make the self-serving claim that the claimant without a lawyer will face a rich defendant with legal representation and not receive justice — or, simply not bother to bring the case.

  Moreover, APIL strongly cautions that

 “By raising the small claims limit firms will be deprived of a huge source of funds, which personal injury claims between £2,000 and £5,000 provide, so making it unlikely that larger risky cases could be pursued.  APIL members have estimated that between a third and a half of personal injury cases they deal with are for damages around £5,000. By removing the ability to regain costs firms will struggle to support personal injury practices, and in particular, will refrain from taking on cases which have any chance of being lost – i.e. only take on cases which have a 90 per cent plus chance of success. APIL believes this will further restrict injured claimants access to justice.”

This seems to be the discredited notion that p/i lawyers subsidize riskier cases with lower risk cases.  Not only is there no credible evidence that such cross-subsidization exists, but each client should have his or her own case treated on its merits by the lawyer — paying fees based on the risk presented by the particular case. 

— Because I am not familiar with the working of the UK legal system, I would very much like to hear from those who might be able to explain whether there are differences that would make low-dollar p/i claims inappropriate for small claims courts in England and Wales.  Does “loser-pay” change the dynamics and make the upper track courts fairer to the claimant?  Would allowing recovery of costs in p/i cases solve the problem of expensive medical reports?   Is self-help information available from the small claims courts for “in person” litigants, so that they will understand procedures, as well as issues such as fault and causation?

So, does APIL have a good case against the increase of small claims limits, or was ethicalEsq correct to suspect that the lawyer guild has been working to prevent reform and revitalization of small claims courts?

1. EL Eversman, at AutoMuse, included last week’s shlep posting on personal injury self help law in Blawg Review #95, which was posted today.  As always, you will find listings to many fine, recent law-related postings in this week’s Blawg Review.  Each Monday, you can find another “best of the blogs” round-up at Tim Kevan’s The Barrister Blog. 

Here’s an f/k/a “small” “claims” bonus:  

small talk
in the cellar
spring rain

their traveling hats
looking small…
mist

yellow gang, white gang
the butterflies stake
their claims

claiming
the big sake cup…
a little butterfly

. . . by Kobayashi Issa, translated by David G. Lanoue

 Below the fold is the reasoning of the Better Regulation Task Force: (more…)

Artful juxtaposition — placing ideas, items or images together to create insight or incitement through comparison or contrast — is at the core of the best haiku and is what we hope brings our loyal readers to f/k/a. Last week, the f/k/a Gang discovered a kindred-spirit weblog that juxtaposes its treatment of legal news, analysis and politics with the lore and love of surfing [sea, not cyber]. It is The Barrister Blog by Tim Kevan and Aidan Ellis, who are members of chambers at 1 Temple Gardens in London. Their specialties include personal injury, health and safety, fraud, and related areas of the law, and they publish and edit numerous publications. Tim is the surfophile

Last month, the Daily Diary weblog at Legal Week praised The Barrister Blog, saying it has the “unlikely but extremely captivating blend of legal analysis and quasi-philosophical musings on his other passion — surfing.” (“Surfing DLA at the great barrister reef,” Jan. 8, 2007)

The Barrister Blog includes a Weekly Review of the Best of the Blogs and Legal News. On the current main page, topics covered include The Compensation Culture, The dangers of specialisation, and surfers and the environment.

Why Lawyers Should Surf by Tim Kevan and Dr. Michelle Tempest

Tim is the author of nearly a dozen books. His two latest — co-authored with psychiatrist Michelle Tempest (his fiancee) — Why Lawyers Should Surf and Why Doctors Should Surf will by published in June by xpl Publishing, and can be pre-ordered. The rationale for the books is explained in this post, and in “Why Lawyers specifically should surf”, and described by the publisher:

Lawyers and Doctors need motivating. As with all intelligent human beings, the best motivation is self-motivation. After many years without an original and empathetic book, we now have a strikingly original one written for practitioners. With the metaphor of surfing and the ocean flowing throughout, the authors have drawn on their collective experience and brought together not only some powerful psychological tools but a beautiful collection of ideas and images which will continue to inspire long after the first reading.

Excerpts from the book can be found in postings at the website, including:

• – – Urbanicide
• – – Saved by the Surf
• – – Wipeouts – Portals of Discovery
• – – Lessons from Big Wave Riders
• – – Time Out
• – – Genius in Boldness
• – – Meaning of Surfing

Although my weblog plate has been overflowing for quite a while now, I plan to push aside some of the cyber veggies and potatoes and save room for both the entrees and the desserts offered by Tim and Aidan at The Barrister Blog.

after all these years
ankle deep
in the other ocean

Beach picnic
sharing our bread
with the one-eyed gull

midday sun
my shadow
to the ocean floor

. . . . . by Pamela Miller Ness

 

“midday sun” – The Heron’s Nest (Oct. 2001)

“summer breeeze” – The Heron’s Nest (Oct. 2000)

“after all these years” from A New Resonance 2; (2001) frogpond. XXI:2

surfeador, by Ladislao Loera

on the beach
the tracks of two
lounge chairs

. . . . . by John Stevenson from Quiet Enough

 

empty sandals
on the beach
pull of the moon

 

. . . . . by Carolyn Hall

The Heron’s Nest 3:5 (2001); A New Resonance 2

in what’s left
of our footprints–
some of the wave

dry air—
the dog shaking off
the ocean

. . . . . by Gary Hotham from The Red Moon Anthology of English-Language Haiku series

“in what’s left” – snow on the water: RMA 1998; South by Southeast V:2

 

arabesque
where the wave
withdraws

. . . . . by jim kacian, from Chincoteague (Red Moon Press, 2000)

in the beach breeze
my travels forgotten…
evening cool

. . . by The Haiku of Kobayashi Issa, David G. Lanoue, translator.

nude beach
a man and a woman
collect shells

………….. . . . by ed markowski from The Heron’s Nest.

 

 

 

 

beach parking lot —
where the car door opened
a small pile of sand

 

. . . by Michael Dylan Welch from Open Window, haiku and photographs

in both hands–
the water she carries
from the ocean

. . . by Gary Hotham from breathmarks: haiku to read in the dark

empty cabin
the beached canoe
fills with leaves

. . . by DeVar Dahl from New Resonance 3: & Snapshots Calendar 2002

the view west –
a splash of red
on every wave

. .. by matt morden – Morden Haiku

. . . . update: Feb. 12, 2007:

she scratches my back –
I reach around
to hers

. . . . . . . by dagosan
with many thanks to The Barrister Blog for its generous pointer to f/k/a

  update (April 21, 2008): See our posting “surf report: a river, a doctor and an ex-barrister“.