Friday, August 19, 2011

An Inexact Science

You know the line from the song: Mamas, don’t let your babies grow up to be cowboys. . . . Make ‘em be doctors and lawyers instead.

I’m here to tell you doctors and lawyers have their own problems, and riding a horse all day looks pretty appealing, sometimes.

I recently had the less-than-pleasant experience of emergency surgery (and to quote Forrest Gump, “That’s all I have to say, about that”). The emergency was caused by the fact that no less than three doctors—specialists all—were surprised by the outcome of what was supposed to be a minor procedure, and could not explain what to expect with any precision and certainty.

Afterward, it occurred to me that lawyers suffer from the same problem. Employment law, in particular, is an inexact science; it deals with messy and unpredictable elements such as emotions and motives. A client may ask me how to deal with a particular situation, and I cannot give him an answer that is guaranteed to avoid a lawsuit.

So why consult a lawyer?

I can tell you what is absolutely prohibited (or required) by law. I can tell you what has “worked” in the past. I can tell you how courts have viewed various situations. And I can be your objective observer, helping you see hidden bias, or what might be perceived by a fact-finder as bias. I can help you choose the words least likely to inflame the situation, and most likely to properly document your decision-making process. Last but not least, I can tell you the range of potential costs, in the event a claim is filed in spite of your best efforts.

The really heavy lifting falls to you. You know the employee best—is she likely to fly off the handle? Assume the worst? File a claim first and ask questions later? And you know how much risk your company is willing to absorb.

More often than not, your choices are limited: terminate a disruptive, insubordinate, or poorly performing employee who happens to be in a protected class, and accept the risk; or continue to work with him because the problems have not been sufficiently documented and the potential cost of litigation is too high. (Talk about being stuck between a rock and a hard place!)

Being in this position has given me some empathy for the doctors who treated me (though that didn’t stop me from indulging in a little pity-party about the results).

And it has led me to this conclusion:

Mamas, if your babies want to grow up to be cowboys, let ‘em.