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The Bronze Asshole Award For November Goes To Akin Gump Partner Steven Pesner

by Victoria Pynchon
December 2010

From Victoria Pynchon's Settle It Now Negotiation and ABC of Conflict Blog

Victoria Pynchon

As you may recall, we've recently given Gold and Silver Asshole Awards here ~ the Golden to the "individual making the greatest contribution to reducing assholishness in the profession" and the Silver to the person who best illustrates the proposition that an asshole is not a person but a behavior and not one person but two. See also Legal Blog Watch for a discussion of the proper terminology here ~ assholiness?)

The theory that all good things come in three's (Gold, Silver, Bronze) was once again proven last week by the winner of the newly created Bronze Asshole Award, Steven Pesner of Akin Gump. We'll be awarding the Bronze Medal on an ad hoc basis to the lawyer who best demonstrates the dangers of hitting the "send" button on any email written when s/he is Hungry, Angry, Lonely or Tired ("HALT"!!)

Exhibit A for the Bronze can be found in several places, including the email boxes of anyone who ever landed on the AmLaw Daily's website which today covers the email event in an article entitled Explaining Bad Behavior.

The Bronze Award Winning Behavior

It's year-end and everyone's a little bit tired and cranky, particularly Mr. Pesner who last week circulated a firm email threatening to publicly fire any random associate "on the spot" for failing to get his/her time sheets in on time. The heart of the verbatim rant follows:

9. For those of you who think you are exempt from doing time sheets on a daily basis, I'd suggest that you reevaluate your importance and get ready to prove that (a) you are busier than I am on legal work, (b) you are busier than I am on client development work, (c) you are busier than I am on firm work and (d) [Redacted] and I do not have better things to do with our time than beg you to be responsible."

"10. Candidly, I'd put every future material violator's name in a hat, randomly pick out a name, and publicly fire the person on the spot--to demonstrate that time sheet compliance is serious business. And incidentally, it is my understanding that the job market is not so good right now in case you did not know."

"11. Also, please remember that I have a long and excellent memory.

Why Email Increases the Chance of Assholery

Other than reminding Mr. Pesner that the internet has a far longer and a much more excellent memory than his own, I'd like to take the opportunity of his outburst for a teaching moment.

In Conflict Escalation: Dispute Exacerbating Elements of E-Mail Communication, author Raymond A. Friedman of the Owen Graduate School of Management quotes conflict specialists Rubin, Pruitt and Kim on the difficulties caused by escalation tactics and strategy. According to Rubin, et al., escalation is

"an increase in the intensity of a conflict as a whole.” Escalation is important . . . because when conflict escalates it “is intensified in ways that are sometimes exceedingly difficult to undo.” One reason why escalated conflicts are so hard to undo is that when more aggressive tactics are used by one side they are often mirrored by the other side, producing a vicious cycle.

Email, Friedman argues, unnecessarily, and often drastically, escalates conflict in ways none of us fully appreciate. Unlike conversation -- in person or by telephone -- we are not

 physically present with others, can’t see their faces or hear their voices, and can’t give or get immediate responses. The lack of contextual clues . . . impose high “understanding costs” on participants in e-mail interactions, making it harder to successfully ground the interaction. . . . [T]the inability to carefully time actions and reactions . . . makes communication less precise.

As far as management is concerned, the attorneys' failure to get their time sheets in on a regular basis is tantamount to a store clerk's pocketing money paid for goods with a promise to put it back into the till later. In other words, there was good reason for Mr. Pesner to be irritable. When one's calm entreaties to follow the rules are ignored, we are well-advised to escalate the conflict proportionally to induce compliance. As the ABCs of Conflict explains, rule-breaking requires management to be "responsibly non-cooperative."

Firm boundaries and a slap on the wrist [are] necessary for uncooperative participants. We [may] continue to ingratiate, to threaten, to promise and to demand commitments [from oppositional players]. We just need[] to be conscious of what we [are] doing, and of the effect our escalating tactics w[ill] inevitably have.

In societies governed by a strong rule of law, there is no need for the disproportional responses demanded by an honor culture (the subject of R is for Romeo in the ABCs of Conflict Resolution) Reasonable graduated penalties are generally sufficient to obtain compliance. A harsh word from a superior might do the trick for the occasional offender and year-end bonuses might be reduced or denied altogether for the worst miscreants. Over-reactions, particularly when unmitigated by a light tone of voice ("fired on the spot" wink wink) reduce rather than enhance the effectiveness of the admonition. And when we put our over-reaction into an email that can be forwarded to all of the world, we unnecessarily expose ourselves not only to the ridicule of the firm's attorneys, but to the entire legal profession in perpetuity.

I do not think there's anyone in authority who hasn't over-reacted to disobedience on at least one occasion. Word to the wise: just don't do it in email which has not only a "long and excellent memory," but also an astonishing reach.

Since we lawyers rarely have management training, I'm linking to an excellent short article on Informal Authority in the Workplace.

Biography


Attorney-mediator Victoria Pynchon is a panelist with ADR Services, Inc. Ms. Pynchon was awarded her LL.M Degree in Dispute Resolution from the Straus Institute in May of 2006, after 25 years of complex commercial litigation practice, with sub-specialties in intellectual property, securities fraud, antitrust, insurance coverage, consumer class actions and all types of business torts and contract disputes.  During her two years of full-time neutral practice, she has co-mediated both mandatory and voluntary settlement conferences with Los Angeles Superior Court Judges Alexander Williams, III and Victoria Chaney.  As a result of her work with Judge Chaney in the Complex Court at Central Civil West, Ms. Pynchon has gained significant experience mediating construction defect litigation.  Ms. Pynchon received her J.D., Order of the Coif, from the U.C. Davis School of Law. 



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Website: www.settlenow.com

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