Law And More

Fox - Who's REALLY in Charge?

"I call the shots on the big debates."

That's what U.S. president Donald Trump contended about Fox in an interview recorded by Mediaite. He also noted that his worst polls come from Fox.

He kept reiterating that Fox is different now. But he didn't give the parameters of the "now." Or, how it is different.

So, the question arises: Who does call the shots at Fox?

Of course, former creator of Fox Roger Ailes no longer is calling any shots. He had been forced out, then died of an accident shortly after (Amazing there weren't more conspiracy theories about that. After all there had been rumors he was trying to put together a competitor to Fox).

According to Michael Wolff's book "Siege," Rupert Murdoch still really hasn't handed the power over to the next generation. But even Murdoch, Wolff indicated, had to cave to the force field of Trumpism. Incidentally, Wolff devotes a lot of pages to the leaders and players at Fox. Here you can order "Siege."

Given the possibility of a Trump (stock market/overall economy) Crash, the debates could be the most-watched live presentation on cable for 2019.

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Part of Him Was "Disappearing" - Adam Markel Pivoted to Resilience

Lawyers seem programmed for tumbling into the legal sector's version of the Belly of Beast: depression/anxiety, substance abuse, and suicide.

Adam Markel experienced that as the "couldn't do that any more" moment. He was suffering from anxiety attacks and insomnia. 

So, he started to do what would allow him to perform at the top of his professional game over the long term and simultaneously enjoy what is important to him in life. 

On the law.com podcast, Markel brings two messages to lawyers.

One, it's possible to practice law without destroying yourself. Had Markel known what he discovered later he would have remained a lawyer instead of pivoting to his current career path.

And, two, what he discovered is that sustainable top performance and nurturing what's important to you really come down to taking care of yourself. The tough part, of course, is figuring out how to do that.

After practicing bankruptcy law for about 18 years, Markel currently is chief executive officer of Make Love Media. He published the influential "PIVOT: The Art and Science of Reinventing Your Career and Life."

Essentially, Markel coaches, taking care of yourself entails:

• Assessing where you are. There is a tool to measure that. Likely generations of lawyers who aren't millennials will find that they conform to a culture which requires and rewards non-stop work. That could be 18 hours a day, as standard. But research indicates peak performance, as by athletes and successful business leaders, is all about periods of recovery. Perform, pause, then return to performing. Top athletes are not doing their sport all the time. 
• Analyzing your "rituals," that is, your habitual actions and if they interfere with both performance and living the life you want. Markel's ritual was to start his serious work at 4 P.M. That meant he missed dinner and story time with the kids, which was his most important value. The conflict exhausted him. He was filled with dread.
• Create new mini rituals throughout the day which reduce that conflict. Soon enough you will be aware what other mindsets and behaviors are killing you and you will gradually replace them.
• Talk with a lawyer you trust about what you sense needs to be balanced out. Those conversations mandate you become vulnerable, with at least that one person. Lawyers are socialized never to let down their guard.
• Do all this before you need to. That is become resilient ahead of major challenges such the law firm's adopting a new business model.

What Markel doesn't mention is that the "couldn't do that anymore" could also take the form of criminal activity. The familiar media article is coverage of the successful lawyer who is nailed for embezzling, distributing child porn, or domestic assault. Those are the other ways of pulling the plug on a mode of working that can't be sustained. 

Markel is the keynote speaker at the General Counsel Conference, September 25-26.

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Michael Wolff's "Siege" - All The President's Lawyers

Legal sector insiders probably won't be reading Michael Wolff's June 2019 book "Siege." At least not to find out the dirt about U.S. President Donald Trump's lawyers.

But those who hover on the fringes, watching Dan Abrams on ABC, likely will enjoy Chapter 3 of the book. The title is "Lawyers." 

For example, they will find out that Alan Dershowitz is no heavy-duty legal scholar. Instead, he is more of a celebrity lawyer, the kind who knows how to publish the right books and use the medium of television. A Baby Boomer, Trump grew up with that medium.

When Trump was searching for a killer lawyer who would work the television optics he invited Dershowitz to the White House. He was considering hiring Dershowitz. Most the BigLaw firms didn't want to get into the loop. Their committees voted down that business because Trump was being Trump and they were also afraid of being stiffed on the bill.

But Dershowitz wanted a million bucks to do the job on a formal basis. So, Trump moved on to the Rudy Giuliani who would work for free. It seems that Giuliani wanted to get out of the house. His third marriage, like the previous two, was a disaster. But to take the job, which paid nada, he had to step down from his position at Greenberg Traurig which wanted no part of all that. 

Wolff confirms the bad blood between Trump and the White House lead counsel Don McGahn. Actually it was worse than the media portrayed it. McGahn hated Trump. 

In essence, Trump assumed, like Richard Nixon, that he was above the law. For example, he would tell McGahn that it was his [Trump's] Department of Justice. Trump wanted people around him who would reinforce that notion. Then, ironically, he would torment them for being suck-ups. As we know, James Comey wasn't among the suck-ups and he got the boot. 

In the book, Wolff also observes that the U.S. legal system can be gamed. That is accomplished through bringing on enough legal juice and muscle. 

As Trump became more convinced he was above the law those in White House made it their mission to avoid attending certain meetings. They didn't be in the loop on Trump's agendas. They knew they couldn't afford the legal bills if they were dragged in. 

On Amazon, "Siege" ranks high - 8,810. In terms of describing legal and political dynamics it is probably a more useful and engaging read than Wolff's earlier book "Fire and Fury."

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Jeffrey Epstein - The Extreme Punishment of Mental Anguish

One meme floating around is that through death - suicide or homicide - Jeffrey Epstein escaped "justice." They define justice as having to go through the public ritual of a courtroom trial. Yeah, with all the cameras, tweeters, and long-form legal journalists. 

However, anyone who is steeped in the arts, has endured a reversal of fortune, and/or had been on the wrong side of the law knows that justice is positioned and packaged in myriad forms. Among the most severe ways it is delivered is through mental anguish. 

That's the theme of Fydor Dostoevsky's classic novel "Crime and Punishment." The murderer - Rodion Raskolnikov - lives in his head as he plans to off the pawn broker. And it's in his head that justice happens. How he suffers. 

Consider the psychic shift Epstein could have been saddled with after he had been charged with sex trafficking.

He could have emotionally journeyed from a wealthy power player to a human being who became powerless - including over his thoughts. Yeah, that "freight train" that roars through the human mind. Mindfulness currently is being embraced as a tool to lower that noise. 

In addition, Epstein lost control over his lifestyle. The Metropolitan Correctional Center in Manhattan was known to have been overtaken by the cockroaches.

Also, he had to fear for his life. Pedophiles are targeted when incarcerated and also he was the man who knew too much. Few buy the suicide theory. 

Those hoping for "justice" in the courtroom are naïve about the U.S. legal system. Top legal talent can game it. Those with the resources to hire those kinds of legal teams frequently have great hope about getting off the hook. The surprise was that former McKinsey head Rajat Gupta was convicted. In a sense punishment came in the old fashioned way of mental torment as well as a prison sentence for Gupta.  

Epstein got his. Now the alleged victims can file lawsuits to get theirs in the form of monetary compensation. So much of American justice is about being awarded money. 

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Experience Caps, Price Point, The Dilenschneider Group's Championing Deep Expertise

In the age-discrimination lawsuit "Kleber v. Carefusion Corp" the plaintiff contended age bias in hiring came via an experience cap.

The Carefusion help-wanted was structured to require 3 to 7 years of work experience as a lawyer. No more than that.

Here is a copy of the complaint.

Dale Kleber, age 58 at the time, had plenty more experience than that. However, he still applied for the position. Eventually, Carefusion hired a 29 year old applicant.

The question arose: Was an experience cap leveraged as a stealth tool to discourage the aging from applying for certain jobs?

Well, Kleber's specific challenge didn't pan out.

As Bloomberg Law reports, the Seventh U.S. Circuit Court of Appeals ruled against the plaintiff.

Here is a copy of that decision.

The Seventh Circuit, 8 to 4, stated that experience caps didn't constitute a type of disparate impact theory. That is, it wasn't a form of seemingly neutral policy that operated as a type of bias against a protected class.

However, some experts warned employers there could be more Kleber-like experience cap lawsuits. Likely, there will be.

Meanwhile, more and more help-wanted specify experience caps and those Google Forms applicants fill out as part of the job search process explicitly ask the number of years working in X or Y niche. That could be managing Price Per Click (PPC) advertising.

Pragmatism rules that applicants would size up what the "right" number of years is and then play in that very specific sandbox. Yes, redo the past to fit with the present.

Otherwise, there may be no access to the toys in that sandbox, ranging from a weekly pay check to benefits. 

But, the present is not so much about raw age bias, is it. 

Instead it's more about price point. Unless a business has a clear and powerful point of differentiation, it can be caught in competing via price. The best briefing on that is "Blue Ocean Strategy" by W. Chan Kim. Here it can be ordered from Amazon.

To keep the price-to-the-consumer/B-to-B market low, employers seek out workers with just enough experience to do the task well so that they can be paid as low compensation as possible.

The new college graduate who had an internship at a marketing firm specializing with PPC would look a lot more attractive to the budget of the employer than an applicant with 6 years experience. Sure, the newbie will probably fly the coop after 2 years but those 2 years could be very profitable for the business.

More and more help-wanted ads indicate that new college graduates are preferred. Since the 90-yar-old could just be graduating college, that phrasing gets employers off the hook on age bias.

In addition, there has emerged a new human resources model - Burn & Earn. It is described in "Disrupted" by Dan Lyons. Here that hilarious book can be ordered from Amazon. Essentially the game is about bringing in a bunch of enthusiastic newbies, training them to do A but not B, make a bundle, and expect them to keep exiting. Repeat. 

Interesting, though, there is a business, based in Manhattan and Chicago, which seems to champion deep expertise. That's the public affairs firm The Dilenschneider Group. On its website it has a section listing its major players and their years of experience. Here you can click it open.

Listed, for example, are:

•  Fred Bona - 40 years
•  Bob Dilenschneider - 30 years
•  Art Gormley - 30 years.

In the fast-moving world of communications, that's counter-trend.

After all, the sandbox, more and more in a digital universe, is custom-made for digital natives. Clients and prospects know the importance of everything from online influencers to local search engine optimization (SEO). So the new toys in the sandbox include everything from help paying off student loans to free food. 

The question is if businesses such as The Dilenschneider Group which position and package long years of experience as a plus have created the unique edge? Or, are they at a new kind of disadvantage? More importantly, does that give the business leverage with price point? 

As those issues are being duked out in the court of law, the hunt for work, and business branding, as early as the age 40 those needing income are finding doors slammed shut because of bias. Here is the article I published on that. If there is a severe economic downturn, that could worsen, of course. Because of their relatively high compensation, the aging usually have a target on their backs. 

Here is my book, free to click open, on how to navigate around all that Download Outwitting ageism. And here, also free, is one on being able to change. Addiction to any comfort zone can mean professional death. 

Full Disclosure: In my early 40s, Corporate America purged itself of middle-aged middle managers. I had to reimage myself as an entrepreneur. Having gotten the hang of how to change, I plan to stay working 60 hours a week until I am 80. Then, I will re-evaluate.

Readers are invited to submit thoughtful commentaries on this issue. Please include content, identity of author, photo, and contact information. Appropriate articles, up to 700 words, will be posted on Law and More. Please send to janegenova374@gmail.com.

 

Getting Back to Thinking About "Ellen Pao v. Kleiner Perkins"

From the get-go when we graduated college one reality was obvious: Those C students were getting those good jobs and moving up. Meanwhile the A students tended to struggle in the workforce. 

If we wanted to understand why, in 1995, psychologist Daniel Goleman explained all that in detail. He published the breakthrough book "Emotional Intelligence." That documented how social skills were more important to success at work and in personal life than raw intelligence. 

Here was the deal: In college the C students were enhancing their emotional IQ by running for and perhaps losing out in campaigns for class president. They organized dances. They went into town and answered phones for the woman chasing after a state senate seat. They figured out whom to network with and whom would never make enough deposits in The Favor Bank.

Meanwhile the A students were not only compulsively booking it. Their anxiety about achieving top grades often isolated them. Who wants to be around a nervous wrecks. Also they missed out on getting the hang of sizing up people and how to nicely shut out the takers from networks.

Unfortunately, though, high intelligence continues to be overrated in America.

And that is helping cause problems in all aspects of American life. David Robson addresses that in his bestselling book "The Intelligence Trap." It's at 401 on Amazon. Here it can be ordered. 

Who hasn't encountered the dumb situations Robson describes?

The brass parachutes into the happy corporate communications department the executive who earned top grades in a Master degree from an elite university. 

The genius is abrasive. Soon enough there is a flight of talent. The ball gets dropped on several important projects. As Robson notes, the smarty-pants usually is incapable of learning from his or her mistakes. The genius will continue to lose jobs. Businesses lose billions of dollars.

Some recall the high profile gender bias lawsuit "Ellen Pao v. Kleiner Perkins." Pao contended discrimination was involved in her being fired.

The plaintiff lost so badly that there was the question why anyone would hire her to begin with. The answer might have been that on paper she seemed a genius. She had earned the MBA from Harvard Business School and the JD from Harvard Law School. 

In the doctoral program at the University of Michigan, a classmate asked a few of us females: Would you rather have great beauty or be more intelligent. Not one of us gave what was the right answer. Yes, we had been caught in the intelligence trap.

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"Beautiful Bad" By Annie Ward - Fictional Version of Provocative "Dateline" Episode

Now and then, a murder episode from true-life "Dateline" will actually be provocative.

Mostly we are used to the last 10 minutes when law enforcement pins the murder on the spouse (usually the husband) and a jury convicts. One departure from that had been the episode about the wife in Canada who got off in a bench trial. She had shot her husband dead while both were hunting. She went on to live her life quietly, enjoying the husband's life insurance. 

Well, to spice programming up, "Dateline" might borrow from fiction.

Ideal could be March 2019 novel "Beautiful Bad" by Annie Ward. The story line focuses on one-time scholar/global travel writer Maddie, the best friend Jo she meets in the Balkans, the man she also meets overseas "body guard" Ian whom she marries, and the child Charlie they produce.

SPOILER ALERT

The narrative, a common technique currently, is told from several points of view.

In this particular book, a device used is the tricky first-person story-teller. For many pages Maddie deceives the reader, just as she deceives her psychotherapist and so many others. A neurologist might explain that aberrant behavior as a result of traumatic brain injury she suffered in a water accident as a child. That can change a personality. And, a defense lawyer, if Maddie were to be tried for murder, might leverage that as a mitigating factor.

Well, murder Ian Maddie does, with the help of Jo. They stage it as necessary to save Jo's life when a supposedly psychotic Ian is in the process of strangling that best friend. Like many on "Dateline," Maddie opts not to get a divorce. 

Initially the two get off the hook. Soon enough Maddie is doing what she always wanted to do - travel with Charlie. It's then that the local law enforcement in Kansas, led by detective Diane, begin to question the two women's stories. Meanwhile, to protect herself, Maddie murders Jo brutally while swimming. The chapter describes the screams and the blood. 

But, of course, crime probably does not pay. Maddie assumes she had done all she has done to create a wonderful full life for Charlie.

However, her escalating drinking could cause her to neglect Charlie. He could die in an accident, be kidnapped, or simply wander away on his own and not be able to find his way back.

Also, she probably doesn't know how to totally conceal her identity overseas. Ian would have known how to do that. So the long arm of the law might catch up to her. Charlie would be turned over to her parents or Ian's brother John.

The story, even for readers who know the ending, provides an amazing experience. A takeaway might be: Trust no one.

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So Many Wrong Moves - Not the Genius Roger Ailes Had Been Postioned and Packaged By Public Relations to Be

It's a cliché: Power players believe their own public relations. And, of course, that sets in motion the collapse of their career. 

In Episode 6 of Showtime's "The Loudest Voice in the Room," the camera pans on Roger Ailes making mistakes. As we tune into the beginning of what will be The Great Unraveling we question whether Ailes consulted his personal public relations counselor Bob Dilenschneider. 

For example, did Ailes ask Dilenschneider about the optics and possible ramifications of firing Gretchen Carlson? As the world knows, that decision provided a tipping point in the push-back against his alleged sexual misconduct. 

In addition, why didn't the appropriately paranoid Ailes (after all, broadcast media's a land of Machiavellianism and sharp elbows) factor in that the discontents at Fox, such as Carlson, might be taping him?

Even in mediocre television crime series the bad guys demand electronic devices not be brought into the room. There are also inspections for wires. Ailes wasn't covering all bases.

Another dumb move was taking on the big boss Rupert Murdoch. Episode 6 indicates that Ailes was bullish on having Donald Trump elected U.S. president, Murdoch not so much so. Such a conflict likely distracted and drained Ailes. The oldest rule in business and politics is: Choose your battles.

What "The Loudest Voice in the Room" is uncovering is that Ailes wasn't the "genius" he had been positioned and packaged by public relations to be. Actually, he was not very smart in making the enemies he did and not anticipating their counter moves. 

The example of this fall from power could motivate other empire builders to be lower profile, more cautious, and focus on raising their Emotional IQ. 

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Endings Have Beginnings - Suppose Fox Had a Greek Chorus to Warn Roger Ailes He Was Overreaching?

Endings just don't happen.

Along the way, there are obvious and subtle warnings of serious trouble ahead. 

The 5th episode of Showtime's "The Loudest Voice in the Room" puts out there clear signs that Roger Ailes' power was going to be in play. The year is 2012. In July 2016, Ailes resigned from the conservative news empire he had created.

One question that should be bouncing around the public relations community is this: Did Ailes' personal public relations representative Bob Dilenschneider pick up on these developments, flag Ailes, and was he heard? Isn't part of the mission of public relations to save myopic human beings from themselves?

In the 5th episode there is the start of The Great Unraveling. 

•  Joe Lindsley, who had received Ailes' power bear hug, begins to wonder about the work he is doing.
•  Journalist Gabriel Sherman knows he has the story of a lifetime and is digging hard for the facts and interviews. What he comes up with is the basis for the Showtime 8-episode series.
•  Alleged long-suffering employee Gretchen Carlson has the ah-ha moments that she can push back, even against a power like Ailes. 

If there had been the analogue of a Greek Chorus at Fox, the members would have chanted: Beware, Roger. The gods are becoming angry. 

Reflection: Given Ailes' amazing fall, should every power player install a Greek Chorus in the organization? The terms and conditions of the members' contract would be that, no matter what, they cannot be terminated. Let 'em tell it as they see it. 

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Jeffrey Epstein - Absolute Justice

The history of art and ideas is jam-packed with explorations of alleged crimes and suitable punishments.

"Crime and Punishment" by Dostoevsky is a classic in that niche. 

That concept dominates because there has never been 100% confidence in or satisfaction with the nation's official legal system. 

So, sure, the U.S. legal system could eventually again convict previously convicted pedophile Jeffrey Epstein of a bunch of crimes associated with sexual misconduct. His sentence could be life without the possibility of parole.

But that likely won't do it for many who perceive his conduct as heinous.

Well, recently they might have found that absolute justice might get done. That would be if the correctional folks are successful in ensuring the Epstein will continue living. That is, they will pull out all stops in preventing his taking his own life.

Members of the media speculate that it was a botched suicide attempt which put Epstein in a fetal position, with marks on his necks, unconscious in his cell. That was at the Manhattan Correctional Center.  Yes, there are others who are convinced that resulted from an attack from one or more inmates.

But, given that Epstein has been denied bail and given the way his one-time allies are distancing themselves, the one-time high-flyer might have run out of hope. The odds are that he did a cost-benefit analysis and determined that his life, from now on, wasn't worth defending or living.

Should Epstein die a death from natural causes at age 100+, there might be an agreement that he had truly suffered from the punishment.

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