Law And More

Forget Jury Consultants - Hire a Psychic [for RI III]

Finally, the tea-leaves reading profession is being recognized as, well, possibly worth a try. 

In the June 30th edition NEWSWEEK, Tony Dokoupil reports on how corporations such as Seagate Technology and William Morris hire psychics for insights on the business and hunches about the future, including who to hire. One such psychic Laura Day earns about $ 10,000 a month from just one client. She has about five regulars right now. 

Should there be a Rhode Island Lead Paint Public Nuisance Trial III, the defense teams for Sherwin-Williams, NL Industries and Millennium Holdings might bypass jury consultants and hire a few good psychics.  I know their power. 

In over two decades of self-employment I have frequently consulted psychics. They have primarily helped me discern where my business or I was stuck.  Then they made recommendations on how to get unstuck.  Although I also have hired executive coaches, I find this approach more holistic and, yeah, highly productive.  Not a minute of the consultation seems to get wasted.  Now, if I can only get the IRS to allow this deduction for psychics.

Those in this line of work go by various titles such as intuitives, astrologists, and healers. The trick is to find one who seems to have the gift of seeing beneath the surface reality and is a good fit for us.  Also, there are plenty of flim-flam readers out there.

For the past two years I have been using the services of the intuitives at The Pilgrim's Way, Carmel, California [831-624-4955].  The setting is a Metaphysical book store in which seven days a week, there are readers there onsite.  They do give phone consultations.  One half-hour costs $45.00 and can be put on a credit card. This group was referred to me by a college friend who lives in Carmel.  She was the canary in the mine who tried out the service in-person in the store a few times before I did.

Disclosure:  When I was live-blogging the RI lead paint II, I consulted an intuitive about if all that digital work was going to get me anything/anywhere professionally. "Yes, but it will take a while."  She was right. It did get me a lot, but it did take more time than I anticipated.  New-economy success seems to require more persistence and patience than the old-economy kind.

Tort Reform, Alternative Bookstores & No Unbearable Lightness of Being

BigLaw is contributing big to Obama's campaign war chest.  That's at least some kind of hedge on how this possible new president and the other Democrats swept in this November will influence our legal system. Reality is: No one knows what will happen to the gains in tort reform. So, we tort reformers have to do a lot more than throw money at this unknown. 

What we do know, though, is that just about every movement in America has expanded its scope, sometimes exponentially, through independent aka underground bookstores. 

Remember how many of us aging Baby Boomers wandered into the counterculture?  No, it wasn't always via the free concerts.  More often it was through those hole-in-the-wall bookstores.  The movement leaders stocked used dog-earned copies of Abbie Hoffman's "Steal this book," provided free coffee, and with faux mellowness seduced us. 

My uncle discovered Alcoholics Anonymous by being muscled into one of those inspirational bookstores. Yeah, the "Big Book" somehow fell into his lap. 

On the left coast, California resident Marsha Keeffer tells us, it might have been those tiny alternative book stores which helped relax attitudes about gay people. And one day, there it was: Gay couples were allowed to marry.

Eastern religions claim their growth in America is coming primarily through educated people picking up books on the subject, especially in new-age shops.  And, no slouches at promotion, the Christian Scientists have their reading rooms nicely tucked away in oddball places.

We have nothing to lose and tons of supporters to gain by setting up wonky out-of-the-way shops.  There will be books, DVDs, websites, and even Meetings behind the curtain on tort reform.  The curious, the undecided, the enemy will all drift in.  Some will stay - and help. [Here is my contribution - a free copy of my e-book on public nuisance Download publicnuisancevoodoo.pdf]

It seems so obvious: Independent bookstores are America's churches, but without the unbearable lightness of being.

Lead Paint Defendants - Wall Street wants you to sell more of the unleaded stuff

Paint is not just paint.  The marketers at the lead paint defendant companies know that. 

For example, Christopher Karwowksi, President of the Cleveland Coatings Society and Sherwin-Williams' Senior Buyer, told me that paint always guaranteed immediate gratification.  One coat and it's a fresh start, new space, or whatever voodoo we can conjure up.  But it could be way more. 

With the tanking of the housing sector, paint companies might now have to go in that direction of the way more.  It's time to think out of the bucket or roller pan.  Wall Street wants them to sell more of the unleaded stuff.  In fact, The Street right now seems more agitated by what the housing slump will do to the defendants' earnings than what the august Supremes might rule in Rhode Island.

So, why not play around with reframing paint.  The mindset about paint is something to apply when moving in, sprucing up, increasing saleability/rentability.  It's totally bundled into a goal, usually a very practical one.  That's just like breakfast used to be. It was bundled into a planned morning ritual. Then restuarants repositioned it as an all-day, all-evening, all-night treat, fun even.  The mystique of eating breakfast whenever still lingers - and sells many eggs and sausage that wouldn't have been sold.

Breakfast24 also unbundled it from something planned to an impulse.  A trip to, say, Sherwin-Williams' paint stores or  Lowe's where Valspar is stocked, can be spontaeous.  Let's just paint, the same as, just let's eat out tonight, see a movie, or get a beer.  There's a mood lifter here, just as Karwoski said.  Push that and it's a spiritual experience.  There can be cooperative advertising with the Buddhist publication TRICYCLE or the spa in Norwich, Connecticut. Push that just a bit more and those managed care therapists who need to get us well fast will have us all painting their offices.

Painting also works off calories.  How much is what the Benjamin Moores better start advertising.  The smart money says it's a slam-dunk to work in a product placement with "The Biggest Loser."

Painting can also be a gift.  Someone always needs that or just to know anyone cares. "Hey, Dad, for Father's Day this year we're coming over to paint the whole downstairs." That's more memorable that the afternoon at Outback Steakhouse.  In Cleveland, Sherwin-Williams' Chief Executive Officer Chris Connor and 30 employees went with their scrappers and brushes and redid a house a low-income family could afford.  

For me, painting has been the triumph of determination over lousy motor skills.  That was one thing I could do.  Disclosure:  I have moved about 16 times in 20 years.  Probably it was so I could paint the new place.

RI SC - Captain Ahab in Protocol Seating

No question in my obsessed mind.  Right there in protocol seating at the Rhode Island Supreme Court lead paint appeal will hover Captain Ahab. 

This decade-long litigation as well as all its subthemes of public nuisance and the right thing to do has consumed us.  Its our great white whale.  We will be in the courtroom in person or by our Internet hookup in hopes that the oral arguments will be the beginning of the end.

If the ruling primarily favors the defendants, with an overturn of the verdict or a new trial, the end could happen fairly quickly.  Or if the ruling isn't to the likings of Sherwin-Williams, NL Industries and Millennium Holdings, then we might all move to a whole other type of court: federal.  There are adequate constitutional issues, ranging from separation of powers to right to due process, for the case to have standing in federal jurisdiction.  After that, it's becoming more and more probable that we could be actually going to the U.S. Supreme Court.

If the ruling primarily favors the plaintiff, then it well might be the beginning of the golden age of public nuisance lawsuits, along with contingency agreements as the key enabler. Plaintiff attorneys can simplify this step in the legal process as a win for public nuisance and promote it.  I can't rule out any industry which wouldn't be a candidate for being sued as contributing to a public nuisance.

And that will be the start of something new.  Lead paint could have a few more hurrays in places like California but then will likely fade away. In the April edition of THE AMERICAN SPECTATOR William Tucker observed that lead paint "somehow lacks the pizzazz or practicality of previous bar crusades."  There could emerge something as big and enigmatic as Moby Dick to become attached to.

God - Casualty of Social Class

The constitutional battle to keep church and state separate may be ending, and not by a long legal opinion.  It might be just the influence and power of class in America, a nation which brands itself as class-free.

If anything captures that development it's this week's article in NEW YORK Magazine on the new atheism or the beliefs of "the brights."  Recall it was NEW YORK which made the "Me Decade" mainstream.  The publication, even in this era of the Internet, still has the clout to anoint a concept the fresh zeitgeist.  If we read between the lines in Sean McManus' article "If God Is Dead, Who Gets His House?" we can't miss the smooth smugness of The Brights. No question, they are the ruling class, the 21st century WASP Brahmins, those who will dominate our institutions.  Of course, we class-insecure Americans all want in.

This didn't happen overnight.  Way back in November 2006 WIRED ran a cover story on The Brights.  Then it was the Brit [not an American-born, mind you] Christopher Hitchens who barnstormed the country with his not-all-that-provocative but very engaging "God Is Not Great."  TV featured a segment on a humanist group in California who operate an atheist Sunday-school-type discussion for themselves, but mostly for their children. They clearly were members of the professional elite Richard Florida calls "The Creative Class."  What's there not to emulate?

Social pressure, especially that directed at upward mobility, has always trumped law in our nation.  Our diversity pulls us to bizarre kinds of common beliefs.  The belief in no God is likely to become one of them.  Forget that holiday lawsuit about nativity scenes in front of city hall and against reciting the Lord's Prayer after Alcoholics Anonymous meetings which the judge orders miscreants to attend.  We The Brights will have moved way beyond that - to the ruling class of no God.

 

Spitzer, Now Dann - Are Reformers Chasing Down Their Own Darkness

Are reformers cursed creatures?  Looks like it.  The Eliot Spitzers and now the Marc Danns seem set on a path by their demons to fight external evil - which might just mirror their own inner darkness.  We know about Spitzer.  The Dann story of internal chaos seems to be coming out bit by astounding bit. [One of the best summaries is Walter Olson's on Overlawyered.com.].

These superheroes who relentlessly chase down human imperfection have always been a puzzle.  The developmental tasks of "growing up" entail learning to accept mankind's and therefore our own flaws.  Once we master that rite of passage, the world opens to us.  We can work for a jerk, marry a spouse who often irritates us, and live with our mistakes.  Having made that accommodation to reality we don't engage in crusades.

The Spitzers and Danns either never made it through that developmental loop or have some unusual need to be purer-than.  Whatever, they embark on high-profile missions, succeed for a while, then too often implode, big time.  They, along with Bill Lereach and Dickie Scruggs, are just among the most recent play-outs of this syndrome.  There were the TV evangelists, Joe McCarthy, the over-the-top priests keeping boys on the straight and narrow and the 'umble Richard Nixon.

If there is such an entity as human progress, maybe we can get on with being wary of those tireless reformers.  In November let's elect those bozos who promise to do no harm.

Casting Spells in Court - Clients prefer economic arguments played in media, not corridors of law

Economic arguments always get attention, in bad times especially.  Yet, clients traditionally assign them to their public relations agencies, which usually include lobbyists, to make. Those arguments wind up in the media, white papers, legislators' offices, and public service announcements.  Rarely do corporations or individual plaintiffs have their attorneys make them on the most powerful and popular stage there is: The American courtroom.  We do love our trials.

During the four months of the Rhode Island Lead Paint Public Nuisance Trial II I didn't hear one economic argument, not from either side.  There were certainly contentions about the need for money but no defaulting into America's most sacred belief system Capitalism.

Well, today, plaintiff attorney Bill Marler of Marler Clark has crossed that boundary, at least on his popular blog which deals with food-borne diseases.   In his blog post today "The Raw Economics Driving the Use of Downers," Marler presents the economic pros and cons of allowing downers or non-ambulatory cows into the food supply system.  Those downers have been banned from slaughter because of fear of mad cow disease.  However, some aren't ambulatory because their leg might have been broken on the trip from pasture or they might have become non-ambulatory while awaiting slaughter after being cleared. 

After presenting numbers for both the pro and con side and the implications of those numbers, particularly in terms of reputational capital and the surging export market, Marler concludes there's not enough economic payoff in not banning all downers.  As we do in public relations, he then issues a call to action to readers on how this smart economic policy can be made to work.

This is an interesting experiment in a different approach to persuasion by an attorney.

Disclosure:  Now and then I do editing for Marler Clark.

Reader input wanted on attorneys' going the road less traveled.  Please leave a comment or contact me at Mgenova981@aol.com.  In tough times, we in communications put those economic arguments right up front.

The Pricing Power of Mystique

We heard today from in-house attorneys who are explaining to outside law firms that they expect cost-efficiency.  But not everyone in professional services agrees that the new norm is sensible pricing.  In fact, they told me that this paradigm ignores the pricing power of mystique.  Offer a well-positioned, well-packaged, somewhat specialized service with enough smoke and mirrors and no client will quibble about price.

One of those who discussed this with me operates a boutique in Boston.  He's a "fixer."  What needs to be fixed is important, requires the right contacts and right social intelligence, and will be accomplished in a manner that will always remain somewhat a mystery.  He couldn't price that affordably. 

Nor could those Ivy League MBAs who march into the Fortune 100 to uncover the sins of the past and the present. Seducing confessions, delivering penance and blessing the new way are beyond price, right.

There are also the services embedded in the reward system for America's business and investment royalty.  Price is only relevant when it's excessive.

I know this world exists.  I serve a few clients who can create this kind of mystique.  They receive $60,000 or $70,000 monthly retainers from this organization or that leader.  There never seems to be a shortage of those willing to pony up this kind of money.

The in-house lawyers who want pricing more in-line with reality aren't referring to this blessed bunch, are they.  That's what I told this voodoo master who can put together a far better game than the rest of us.   Those rest of us have to adjust to the new norm of competing on price, not entirely but enough to kill any vestige of 1990s greed. 

Gut Feelings - Not In This Court

"I have a gut feeling that lead-free, not lead-safe, is the way to eliminate lead paint as a health hazard in Rhode Island." 

Of course, key state witness Patricia Nolan, former head of the RI health department, didn't say that during the RI Lead Paint Public Nuisance Trial II. She framed her opinion endorsing lead-free based on research and statistics from recognized entities, government and medical.  RI's lengthy lead-paint abatement proposal doesn't talk about "hunches." And on January 4th, the attorneys representing lead-paint defendants didn't rebut that abatement plan in Superior Court from their gut.

Courts of law simply don't recognize the validity of intuition or what Gerd Gigerenzer in his book "Gut Feelings" calls "the intelligence of the unconscious."  Neither do most institutions in America. 

In pitching for a marketing communications account at the Fortune 100, you bet, I'm going to present data and a track record of success, not what my gut says. [That's only allowed for BigFoot brandnames like Steve Jobs and Jack Welch]  Standardized tests reward acquisition of knowledge and cognitive reasoning. The system hires what's on paper.

Why is this?  I have some hunches.

• My intution often doesn't agree with your intuition.  So, why give any value to any intuitive leap that isn't ours and ours alone.  The reality might be that some of us have higher IU than others.

 

• What bubbles up from below the surface scares us scientific, educated types. It's raw, primitive, and unique.  That's why we love pop culture like "Medium" which plays with this force.

• Valuing intuition mocks the monster investment Americans make in degrees.  There would be plenty of six-figure buyers' remorse if we realized the MBA might be irrelevant to our actual performance. 

As Gigerenzer, director of the Center for Adaptive Behavior and Cognition at the Germany's Max Planck Institute for Human Development, points out in his 2007 book, for American courts terms like "hunch" are verboten. To be credible, says Gigerenzer, is "to produce 'objective' reasons after the fact." And isn't that exactly what we do, in every profession.  That ignores the reality, insists Gigerenzer, "that good expert judgment is generally of an intuitve nature."  Of course it is.  Experts worth their salt better have a good gut instinct.

This anti-intuitive bias has serious consequences.  We may be educating everyone at every level for the wrong things.  Litigation is expensive and becoming more so all the time.  RI Lead Paint II was filled with fact experts presenting objective reasons for their opinion. Some of those earned $600 an hour for that and the meter certainly ran during discovery.  Just about every organization might be hiring in ways doomed to not creating new value.

Can this change? A major economic downturn could do the trick.  We will be scurrying for fast, cheap solutions.  And those often come from the gut.   

Voodoo in Law - Casting Spells Through Emotional Intelligence

Call it charm, charisma, streetsmarts. Those who have "it" cast spells at work, including the analytical world of law firms. Good things, ranging from making partner to being known as a wizard in new-business development, come their way.  That "it" is emotional intelligence [EI]. And it can be learned, explains presentation coach and communications consultant Jane Genova in her free e-book "Our Emotional Intelligence: Wisdom from the Jersey Girl of the on the job, our own businesses, and more."

"Don't expect career cliches," Genova warns.  "These are lessons learned, forgotten and relearned from growing up in the mean streets of Jersey Cit, New Jersey.  Without those fundamentals I could never have put together a professional comeback when my business folded in 2003."  It wasn't until she applied that wisdom five years ago that she recognized it contained everything psychologist Daniel Goleman discusses in his books on EI.  Now she passes that on to others whose careers are stuck or becoming obsolete.

The 12 chapters cover why we can and should cast spells over our bosses, co-workers and clients; like gangsters, never take anything in business personally; how to push back and why not doing that is reckless; taking power rather than waiting for it to be given; managing fear; and more.  This equips newbies in law to succeed, no matter what is happening in their firm.  That's because they come to define the situation.

The book can be downloaded free here.