FEBR UARY 2, 2006
Work Matters
VOL. 21 • NO. 49
BY
MICHAEL P. MASLANKA
POETRY AND MUSIC: THE ARTS CAN HELP GCS BE EFFECTIVE
The general counsel’s résumé:
B.A. and J.D. Is the first degree
merely an unavoidable prerequisite
to the second? Not really. Ar t, poetr y
and music inform, expand and enrich
their students. It’s the thoughtful
GC, not one mindlessly wedded to
regulations and needlessly ensnared
by minutia, that C-level executives
prize the most. Broad knowledge is
an invaluable strength, not a useless
credential.
In 1919, William Butler Yeats’ “An
Irish Airman Foresees His Death”
was published. In the clouds, where
the imagined airman’s thoughts are
his own and his desire is inescapable,
he flashes on a moment of moral clarity: “Those that I fight I do not hate/
Those that I guard I do not love.”
Make this a mantra when dealing
with opposing counsel or uncivil judges. Shor t-circuit your anger. Anger
makes the deposition/telephone conversation/trial about the lawyer, not
the client; about how the lawyer
looks, not how well the client does;
about payback, not results. It’s anger,
image and payback that consume so
much time and energy in employment
cases. After all, few things are more
emotionally charged than defending
a company against an accusation of
decision-making based on status, not
merit. Ar t centers lawyers, so they
can be counselors.
Just as poetr y informs, so do movies. In “The Godfather,” Francis Ford
Coppola’s camera takes a wide angle,
then closes in on Michael Corleone,
and the viewer sees in his face the
transformation from war hero to don:
“It’s not personal, Sonny; it’s strictly
business.” Yeats or Coppola, GCs can
take their pick — there’s a fundamental truth in each.
Or, watch Paul Newman as Frank
Galvin, a washed-up lawyer, in “The
Verdict.” An easy contingent-fee case
falls his way: a brain-damaged woman,
connect-the-dots-proximate cause and
a big hush-money settlement from
the Roman Catholic Church. Before
visiting the cardinal to get the of fer,
Galvin swings by the hospital to snap
a few photos of her suf fering, to use
to negotiate a higher settlement. The
viewer hears the respirator hiss, sees
the woman comatose and watches his
eyes open wide with the realization
that he can make up for his sorr y life,
if he rejects the settlement, swings
for the fences and bingos-out on a
verdict. A little Yeats could cure that
over-identification with the client’s
cause.
Moving from Yeats to W.H. Auden
is moving from one tr uth-telling
poet to the next. An Auden poetic
insight: “We would rather be ruined
than changed.” Does that sound like
any executives you know, with their
minds made up, eager to wrap up
problems and move on to the next
agenda items?
Emotionally based beliefs abound
in the employment setting, with execs
at defendant companies asking, “How
could she sue us for discrimination?
Doesn’t she realize how much we did
for her? We will never settle; we’ll
countersue her.” These are positions
dug-in early and dug-in deep. GCs
can’t change the fundamental truth of
Auden’s insight; they can only work
around it. Ask disconfirming questions, such as, “What is the best reason not to do this?” or “What is the
second best approach to take?”
Ever tr y to get an executive ready
to testify? Auden would say that the
GC can’t change her but can only
help her. Don’t tell her what to say
— empower her with a message system. Ask her what she wants the jur y
to understand, then strategize about
how to couch the message and argue
that the company’s actions were fair.
GCs must tr y their best but understand that there is just so much they
can do. Listen to this from the first
stanza of “The Odyssey”: “But, he
could not save them from disaster,
hard as he strove/The recklessness
of their own ways destroyed them
all.” Ar t teaches, but ar t also liberates.
It’s ar t that opens a window to the
most power ful tool in an employment
case: empathy. Employees’ lawyers
have profited from this insight for
years, and now it’s corporate America’s turn. The poet Jane Hirshfield
This article is reprinted with permission from the February 2, 2006 issue of In-House Texas. © 2006, Texas Lawyer. For subscription information, contact
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wrote, “Choose carefully/all you are
going to lose, though any of it would
do.” Anything will do, because it’s
about the loss, not the thing that’s
lost.
Read San Antonio poet Naomi Shihab Nye in “Kindness”:
Before you know what kindness really is
you must lose things,
feel the future dissolve in a
moment
like salt in a weakened broth
...
Before you know kindness is
the deepest thing inside,
you must know sorrow as the
other deepest thing.
Empathy is the ticket. While
defending a case of a rejected job
applicant, who claimed race discrimination in a no-hire decision, my team
tried to see what he saw. What we saw
was a plaintif f who wanted the job
badly and took deep personal of fense
when he did not get it. In our opening to the arbitrator, we argued that
this was not a case of discrimination,
but of disappointment; our decision
was understandable but not malicious. Ef fective advocacy star ts not
with the GC’s company’s own viewpoint but with that of the other: the
employee, her lawyer or even an executive in the GC’s own organization.
THEN AND NOW
Ar t empowers by providing tactics, too. When planning an opening,
whether for a brief, a trial or a joint
mediation session, think of an establishing shot. It defines the opening
sequence of a scene, especially at the
star t of a movie. It sets the tone, place
and time for the events to unfold. It’s
twisted together like a pretzel with
the narrative that follows.
For a great establishing shot, look
to “Wall Street,” Oliver Stone’s stor y
of how any of us are corruptible given the right constellation of events.
The viewer sees a deitylike view of
New York City, spiraling down until
it alights upon ambitious Bud Fox.
The viewer understands he’ll be the
chosen one, just waiting to be led into
temptation by his serpent, who later
pops up as Gordon Gekko. The tone
is set and the stor y unfolds.
Read Yeats’ “A Prayer for My
Daughter.” He sets the stage with a
violent storm, his child in a crib, nothing but some trees and a hill to blunt
the storm’s fur y:
I have walked and prayed for
this young child an hour
And heard the sea winds
scream upon the tower,
And under the arches of the
bridge, and scream
In the elms above the flooded
stream;
Imagining in excited reverie
That the future years had
come,
Dancing to a frenzied drum,
Out of the murderous innocence of the sea.
Not exactly a “dark and stormy
night,” is it? It’s ar t that makes the
dif ference.
The protagonist sets out dangers
and then provides the protection: a
prayer for his daughter’s safety and a
hope to contradict his frenzied fears,
that “May she be granted beauty, and
yet not/Beauty to make a stranger’s
eye distraught” and “May she become
a flourishing hidden tree/That all her
thoughts may like the linnet be.”
Look at the duality of the poem’s
structure: A threat contrasts with
a protection, an assault results in a
fending-of f, a danger is resolved by
an escape. Establishing-shots in the
law are the same: strong statements,
power ful contrasts and vivid images
that are not over wrought but are propor tionate.
Know this: Persuasion is often a
matter of what is left out, not of what
is included. Ar t teaches much on this
score. A jazz saying holds that it’s not
about the notes, it’s about the space
between the notes. Persuasion is
about creating a conflict between the
desire to linger over what is being
said with the desire to move quickly
to what’s next. Music can illustrate
this narrative tension. Give a listen
to Mozar t’s Concer to for Clarinet in
A, the music from the movie “Out of
Africa.” Listen and see.
Ar t wars with two pernicious legal
myths, which can get a GC’s legal
strategy of f track. The first myth is
that facts win a case. Not true. Decision-makers don’t need more facts,
they need better stories, and ar t
shows lawyers the way. The second
legal myth is, when in doubt, introduce the exhibit, put on the witness
and ask the extra question. Ar t counsels restraint, a holding back, as a
way to success: the Mozar t tempo,
jazz pauses, poetr y’s spareness.
Here’s a final thought. Get a razor.
Go to the attic. Slice open the duct
tape on the boxes of books from college. Flip through them. Look at what
your younger self highlighted then,
and see if it’s what you’d highlight
now. Remember the person you once
were and, most likely, still are. I H T
Michael P. Maslanka is managing partner
of the Dallas office of Ford & Harrison.
His e-mail address is
[email protected].
Maslanka is board certified in labor and
employment law by the Texas Board of
Legal Specialization. He writes the
Texas Employment Law Letter.