Are you now, or have you ever been, in a crazy organization? Perhaps at work, at church, or a professional group (let’s not even consider a crazy family this time). It’s easy to get mad. It’s easy to be negative. And it’s understandable when some people throw up their hands and just quit. When you are involved in an organization whose leadership you disagree with–whether a non-profit, a small business, or a law firm–you have to find ways to manage yourself when leaving is not an option you wish to exercise.
And it’s hard. Litigation consulting can be a lonely business. Most of us work alone and when we find kindred spirits it’s a wonderful thing. It was in that spirit that a small group of us listened recently to trial consultant Karen Lisko offer a strategy for turning frustration into productive outcomes.
“When I was an undergraduate at the University of Arizona, I happened to sign up for a theology class that would have a profound effect on my life. The priest taught it based on one simple premise — bottom up. He taught that all great faiths, countries, and organizations survive because their members fervently believe that the power is at the bottom, not at the top. From that vantage point, you stick with the organization because of the principles and the group, not because of the leadership.
Why not turn frustrations now toward a positive rebellion that rallies the group around what brought them together in the first place? In essence, we encourage them to lead their membership from the bottom.”
I also recall a moment when my mother-in-law approached the head minister of her church during a time of great controversy, and told him that while she disagreed with him, she wasn’t going to leave, as others had. She explained to him “I’m staying because this is my church– our church– and you aren’t going to take it from me.”
It’s a fresh perspective that allows lots of productive strategies to emerge. All of us need that sort of contribution from “fresh eyes” now and then. Whether you are in the throes of case preparation and can’t see the forest for the trees, or in the middle of [yet] another meeting to rehash the same old stuff with partners and associates–fresh perspective is imperative. It can move you from frustrated, stuck, and pessimistic to energized, optimistic and excited for the future.
We’ve written before about leading our unethical leaders and other organizational issues–like psychopaths in the boardroom and those selfish meanies in your office. And those tactics come from a variety of fields of study. Add theology to the list. Lead from the bottom!
The “times they are a changin”. Being culturally competent is no longer just a quaint, politically correct idea. It can make the difference between success and failure.
The new issue of The Jury Expert has an article from Michelle Ramos-Burkhart on cultural competency and your law practice’s financial bottom line. In essence, she says our world and our country are changing demographically. And our litigation practices often have global implications rather than local or national. Our ability to communicate well (without uninformed and unintended insult to our international clients, witnesses, and jurors) is essential to representing and retaining clients. A lack of cultural competency also puts us at risk of losing our culturally diverse employees as well as losing our employees who value diversity.
We began doing IP work about 15 years ago. At that time, foreign corporations were not the norm for our practice. But that soon changed. Now our patent and complex commercial cases often involve at least one non-US party and sometimes numerous. We find ourselves not only listening for our mock juror biases against “them” but also paying attention to the unique cultural experiences and expectations from our clients that add dimensions to the trial story that are interesting and compelling. Sometimes the reactions are provincial, other times they are somewhat flattered to have an impact on global business.
While in the past there has been predictable resistance to seeing foreign companies or entities as having equal footing in the US courts, jurors appear to be catching on to the new normal. And they understand that they want the same treatment for US companies when they are doing business overseas. The anti-foreign bias is strongest in cases where the country of origin is seen as not treating US companies fairly. In the past year, we’ve heard the following comments from mock jurors in cases with an international party.
“He seems very aloof and precise. Unemotional. Perhaps it’s a cultural thing since he was born in South Africa.”
“Asians are always knocking off American ideas. You can’t trust them. It’s part of why our economy is in trouble.”
“If the parties’ national affiliation were reversed, I would say this is typical since the Plaintiff’s country’s citizens rip us off all the time. But these Defendants are from Canada. It’s confusing to me. I wish it was the other way around so I’d know how to make sense of it.”
“None of the Defendants speak English. How am I supposed to assess their honesty when they don’t seem knowledgeable?”
Jurors are sometimes aware of their biases and other times blissfully ignorant of them. Mock juror reactions to the case parties often lead to frank conversations about culture, cultural stereotypes, and cultural biases with our clients (the attorneys) and their clients (the international party’s representative). In those conversations, we model a curious and respectful dialogue to facilitate communication and comfort with our differences.
As we facilitate juror discussions during research, we pay close attention to assumptions and biases and test different methods of sharing information to see what helps jurors think with care. What helps them move beyond reliance on stereotypes and assumptions?
As we carefully analyze the data gathered from those pretrial research exercises, we look at how biases color the case narrative and influence the outcome.
As you plan the case narrative (the story of why it happened, not just how it happened), pay special attention to telling the story in a way that elicits useful values and perspectives. Do you want the jurors to identify with the foreign entity or party? Do you want to help jurors see the party as “like them” rather than as “foreigners who are not to be trusted”? When we are working on behalf of a foreign entity, we want jurors to continue to see our clients as international but we want to minimize their reaction to our clients as “them” and have them be seen more as “like us”.
One example of this involves Chinese clients. I’ve worked on several cases for entities with Chinese witnesses or for Chinese companies, and they have some interesting twists.
- Language. Mandarin (the official language of Mainland China as well as Taiwan) is structurally different from English or European languages, and it shows up in how native Mandarin-speakers speak English. A lot of Mandarin grammar is contextual. There are no plurals–you can tell whether it should be plural by the other words spoken. Therefore, Mandarin speakers frequently struggle with plural forms in English. The use of tenses in English is very odd to Mandarin speakers, who tell from the context of the sentence whether it is in the present, past or future, and struggle with changing words just to reflect something that is already obvious in a sentence.
- Which China? If we are working for a Taiwanese client, the emphasis is on their role as a key ally to the US in Asia, how they have mandatory military service, and how they pull their weight. If our clients are naturalized American citizens from China, their story includes their goal of coming to America, the struggle they had growing up under very difficult circumstances, and an effort to get them to be less stoic than their history and culture demand.
- Documents. Everything is more difficult if you can’t appreciate the nuances of language. We recently had a Taiwanese witness who was accused of being deliberately misleading in her deposition and even her trial testimony because she testified inconsistently with the document contents, or she couldn’t recall what the document said. All of the documents were written in English, because they were to be filed here in the US. She was a good business person but spoke no English, and hadn’t committed to memory every word on every document. And under stress, she made mistakes. She conducted the better part of a whole deposition under an incorrect assumption about when a document was created, because the date on the document (which referred to something else) was perceived as being the signature date.
In closing, we planned to talk about that confusion (the case settled the day beforehand), and how even the best intended person can fall victim of translation error and her effort to try to comply with questions deserves respect. We would have shown a Mandarin-language document on the screen as we talked about how hard it is to reconstruct a document from our memory, even if we’ve seen it a good number of times. The attorney planned to point to the screen and pose the question
“How many of us would be able to handle close questioning about this document? Would we deny having seen it? Would we say that we disagree with it? What if we couldn’t translate it, or didn’t have the translation handy?”
The document on the screen is then disclosed as a Mandarin translation of The Declaration of Independence. And on closer scrutiny, the Mandarin version is only translatable to the jury where it shows the date in western numerals: July 4, 1776.
As we approach voir dire, we focus on values and attitudes and beliefs rather than demographics of empaneled potential jurors. It isn’t about de-selecting white males or African-American women. It’s about who shows us through their attitudes, values, beliefs and group affiliations that they can be open to our story and who hints (based on those same variables) they will not be open to understanding the story that is ours to tell.
In truth, it isn’t a lot different from what we do in every case. There is always bias. It’s just a bit more complicated in international cases. And that is why the idea that cultural competency is essential appeals to us. It isn’t just PC anymore. It’s about your financial bottom line.
Ramos-Burkhart, M. (2013). Do you see what I see? How lack of cultural competency may be affecting your bottom line. The Jury Expert (May)
Another of those lessons on how life just isn’t fair. Apparently there is a collective belief among some (although not universal) that groups reward altruistic behavior by giving people showing altruism positions of leadership, higher rank, recognition, or simple respect. In other words, status is given to the altruist. This belief system fails to explain why leaders who behave selfishly attain positions of power, a pattern that seems pretty common. So keep that in mind as you read the rest…
Researchers are now telling us that being “nice” (aka altruistic) can actually pose a barrier to your ascent into a leadership position. Last month, we blogged about how nice guys get paid less than “not nice” guys. Well, guess what. Nice guys also get shut out of leadership positions.
Status has two sides: dominance and prestige. For dominance, think Al Capone. For prestige, think the Dalai Lama. Both have status. But they obviously attain status in very different ways. One through the threat of violence. The other through nonviolent views on democracy and religious harmony (and some would add, through reincarnation karma). And we would also add, one was absolutely terrifying while the other is sweet and the personification of inner grace.
[We use the word “prestige” here as it was used in the study, but that seems to be an inadequate term, as prestige can be achieved by numerous paths. The one used in this study was generosity or kindness, which isn’t by any means the only type of “prestige”.]
So researchers wanted to see what would happen if they had participants rate prestige and dominance separately. They had them play games in small groups of four where they were either allowed to contribute their “chips” to the group endeavor (thus accumulating prestige) or keep their chips to themselves (thus achieving dominance). After they played, the group members rated each other on dominance and prestige. Sure enough, those who selfishly kept their chips were rated “dominant” and those who selflessly contributed their chips for greater group benefit were seen as having “prestige”.
Then the research participants were asked to elect leaders for either a within-group task or a task wherein they would compete against another group of four. You can likely intuit what happened. If the task was a competitive one–dominant individuals were chosen. If the task was a cooperative one–prestigious group members quickly rose to the top.
The researchers conclude that altruism is truly a double-edged sword. Your contribution to the group is “nice” and you are a “nice person” but you may be perceived as “too nice” to have the guts to make tough decisions to advance the group in a competitive endeavor. So group members choose the selfish guy to advance them in a competitive endeavor. Those of us who have been in organizations where the selfish and self-centered guy attained a position of leadership know just how short-sighted this decision is for the life of the organization. Sometimes an organization or a group needs decision-making leadership, and other times what is needed is a consensus-builder.
So what do we make of this research? It would seem that effective leaders would have both dominance and prestige. You want enough dominance to be taken seriously as a leader who can make tough decisions. You want enough altruism (which confers prestige) to be able to have the support and trust of the group behind you. Being a nice guy alone isn’t enough if you want to lead. You have to show some dominance too.
Another application of this research that came to our minds was with regard to wealthy or powerful clients.
How will jurors view them?
How can we assist them in creating an identity that jurors will favor?
America tends to love wealth and power. We elevate such people to celebrity status and credit them with having something to tell us all about life that is simply laughable.
But in litigation, their celebrity (whether it is from being dominant or prestigious) is insufficient for making them worthy of compensation (if plaintiff) or of protection (if defendant). What jurors want to see are facts that justify a verdict, and a party who will use the verdict for the betterment of society, not just themselves. When we are doing initial case strategy involving wealthy clients (individuals and corporate clients) we think about public identity. The jury is not going to work collaboratively with our client, but they will judge that social demeanor as if they did. Among the early questions I ask are:
“What kind of charitable activity do they engage in?”;
“What community programs do they support?”;
“Are they donors to a religious organization?”;
“How do they answer the question: How do you give back to the community/country/world that has granted you such wealth and power?”
And I know that if they don’t have a good answer, we have a problem. Not only because we have nothing to brag about, but because I’m dealing with someone who is only focused on their own narrow self-interest. And jurors don’t like that.
We’re here to tell you that being dominant doesn’t always mean being selfish, self-centered and arrogant. And the sort of selfless “prestige” that was seen here is nurturing, but not a leader for all seasons. Dominance when tempered can also mean being decisive, seeing the bigger picture, and being willing to address conflict directly while still caring about the impact of those decisions on others. Now that’s a leader worth supporting.
Halevy, N., Chou, EY, Cohen, TR, & Livingston, RW (2012). Status conferral in intergroup social dilemmas: Behavioral antecedents and consequences of prestige and dominance. Journal of Personality and Social Psychology, 102 (2), 351-366 DOI: 10.1037/a0025515
Monty Python fans recall the optimistic pluckiness of the black knight who threatens King Arthur even after being completely de-limbed. “It’s only a flesh wound!” he chirps and asks Arthur to walk over to where the knight has fallen so he can bite King Arthur’s legs. King Arthur refers to him as a “lunatic” but also kindly agrees to call the one-sided duel “a draw” in recognition of the misguided pluck of the black knight.
Many of us have been in the role of the black knight in an organization. We want to do well. We don’t want to give up. We want to see our organization and our mission positively. But sometimes, we have to take that big tin can off our heads so we can see clearly. And every once in a while, we have to take a stand. It can be a quixotic mission. Or it can be a revolution.
It is axiomatic that leadership has a potential dark side. More contemporary examples of the “dark side” of leadership can be seen in the Enron implosion and even the Wall Street collapse. A leadership blog describes the “dark side” of leadership this way:
“It is sometimes called “the shadow.” This is the part that is negative and can create toxic environments. Characteristics can include greed, jealousy, envy, excessive competition, defensiveness, manipulation, … the list goes on. It is when the ego gets control of us and starts leading our thoughts and behaviors.”
It isn’t that the “dark side” stems from only negative or bad traits–quite the opposite. It can actually stem from good traits that simply become too strong and trip over into what might be called “tragic flaws”. Getting “carried away” with the power of leadership can be a very bad thing. And that, in turn, can be a very bad thing for your organization, your firm, your members, and your employees.
So how do you avoid this leadership trap?
Maintain trusted advisers who are not in your leadership circle. Get real feedback so you don’t live in a bubble of only those who agree with you or see things from your skewed perspective.
Curb your suspiciousness lest you find yourself in the awkward position of calling your followers/members dissenters when your leadership group, in truth, are the ones dissenting while the organization is in agreement.
Honor service and honor your members/employees. Recognize the loyalty of ‘loyal opposition’ and embrace positive diversity of views. You don’t have to agree with everyone. But you can honor their service to your firm or organization. No one likes to see leaders that deride or minimize members/followers. Be respectful. Keep critical and devaluing comments about individuals to yourself.
Give credit where credit is due. Great leaders do not create themselves. Their words and their behaviors spark commitment to “do good” among others. Fan the spark by acknowledging contributions.
And yet, when you are a leader, be unafraid to do the right thing. Just make sure it really is the right thing. If you wonder, act cautiously, and risk erring on the side of graciousness.
It seems only fitting that this post is going up on the week in which we honor Martin Luther King, Jr. Here is an example of a man who was not perfect by any means, yet he inspired a huge cultural change. Being a leader isn’t easy. But it shouldn’t hurt those who choose to follow you.
Conger, J. (1990). The dark side of leadership Organizational Dynamics, 19 (2), 44-55 DOI: 10.1016/0090-2616(90)90070-6