I responded that this was a first for me and those lawyers must be young or "Baby Lawyers". (No offense meant to you Baby Lawyers, since I was once one also). The court reporter confirmed that the lawyers were, in fact, young.

This was a change from past ways, and I would say, a positive one. Clients may think that "in your face" lawyers are a good thing, but this type of behavior causes the case to be more expensive and in the end doesn't help either side. Thinking about those nice young lawyers made me reminisce about being a lawyer back in the 1980s. There were a lot of nice lawyers in the eighties, but there were also some very mean and sneaky ones.

In those days, lawyers didn't raise their hand to object, they shouted their objections. We also had "speaking" objections which have been outlawed by the State Bar Rules. Speaking objections told your client what to say. For example, your client was being deposed and had just been asked to describe the accident that was the subject of the lawsuit. The Lawyer shouts, "Objection!! My client wasn't driving the car. He was in the back seat reading a magazine. There is no way he can answer your question." Now the client knew what to say. He was reading a magazine and couldn't answer the question.

Another trick was to make the witness you were deposing so uncomfortable they couldn't think. The lawyer would request the deposition be videotaped. Then the lawyer would have the videographer bring bright lights and beamed them down on the witness. The lights were so bright--and so HOT--that the witness was in an immediate sweat.

I remember another lawyer that would pace around the room during the deposition. The witness would have a hard time concentrating on the questions because the opposing lawyer was gyrating around the room.

I remember when two lawyers got in a terrible fight and hated each other. Every time they had a deposition, they would bring their own videographer. The person taking the deposition of the witness would have a videographer recording the witness. Then they would have an additional videographer trained on the other attorney. How's that for intimidation!!

I remember a particularly mean lawyer that I had a case with when I was a Baby Lawyer. This lawyer (Nasty Lawyer) taunted me the entire case, constantly reminding me that "girls" shouldn't try cases. Well, at the end of the trial there was a nasty little incident that occurred in the courtroom. The case had concluded and the Judge and bailiff had left the courtroom. Nasty Lawyer, his clients, and my clients were still in the courtroom. Nasty Lawyer and I were next to the jury box, quizzing the jurors on their verdict. (I had won!!).

I started to ask a juror a question and Nasty Lawyer interrupted me. I said, "You have interrupted me this entire trial, I would appreciate it if you would let me finish my sentence". He responds, "How did you get to be such a bitch, Carla? I bet your mother is a bitch too!" I respond, "You are the biggest ***** I know." He responds, "And I bet you love them."

Upon hearing that, I snapped. I pulled my arm back and punched him in the nose. He fell back against the jury box and said, "No one hits me". He then promptly shoved me back.

Meanwhile, the jury had their mouths open in shock and my clients were jumping out of the chairs. As luck would have it, my law firm had sent one of the partners to check on me, the Baby Lawyer. The partner steps into the courtroom and sees the Baby Lawyer punching her opponent. Needless to say, the law firm was not impressed.

I am glad lawyers are nicer today. And I don't punch people in the nose any more.

Oops, are my emails that bad? Why do people think I am mad when I send an email? Is it because I am blunt and to the point? Does it have to do with the fact that I don't put any flowery language in there such as using my addressee's name or signing off with my name? Am I too short and sweet with my emails? One of my partners signs off with, "Have a super day". I try this sometimes, but it feels fake. What is a super day? Maybe a better phrase would be, "Have a wealthy day" or "Have a healthy day".

When signing off on official letters, not emails, I like to use, "Yours very truly". It sounds old timey and formal. It also is tongue in check especially when you are writing a stern legal letter.

Since people in my firm have commented about my emails, I will share one of my pet email peeves. When replying to a group email, you don't need to hit reply all. It is ok that I don't know what you are saying in response. Do I sound cranky? Well, maybe but there are just too many emails to distract me.

When I do trainings I also warn supervisors about emails. Whatever you do, don't discipline or comment on employee behavior via the email. If you must do it, meet with the employee first, then follow up with an email. Actually, it is better to meet in person and present a write up. Emails are cold and come across harsh. (Clue to Carla --sweeten up your emails)

Mr. Akana has seen many changes in the flight industry. It has gone from passengers dressed up, to passengers showing up in their pajamas or wearing cutoffs and a tube top. You can see just how trashy or sloppy passengers have gotten by watching the reality show Airline (airing on MyLifetime) http://www.youtube.com/watch?v=Gjw585ZnJwI

Mr Akana was one of the first male stewards hired by United Airlines in 1949. Male stewards were very unusual. As the Times article points out, most airlines hired only young women and there was mandatory retirement at age 32. If you got married or pregnant, you were fired.

In 1966, a New York Times classified ad for stewardesses at Eastern Airlines listed these requirements: "A high school graduate, single (widows and divorcees with no children considered), 20 years of age (girls 19 1/2 may apply for future consideration). 5'2" but no more than 5'9", weight 105 to 135 in proportion to height and have at least 20/40 vision without glasses"

When I read this classified ad in the Times article, my blood pressure spiked. I was PISSED. I knew I wanted to write a blog on this topic. It brought back memories when I first started practicing law in 1980. I had no idea what I was doing and my only point of reference was The Perry Mason show.

I remember being in the library and looking at a volume of Texas Jurisprudence (Tex. Jur.). In Tex. Jur., women were listed as chattel, the legal word for personal possessions. I still get mad thinking about it.

In those days, women lawyers were suppose to write wills and practice family law. Heaven forbid, trial work was out of the question. I remember confronting the senior partner and accusing him of not believing women were capable of trying lawsuits. In my typical Blunt (I refuse to call it in your face) style, I walked in to his office and confronted him with that statement. The senior partner, a sweet, extremely talented, wonderful man, shot out of his chair like a cannon. He jumped out of his chair, red in the face, and announced that he certainly didn't believe that, but I needed to get back in the library ASAP.

I don't want to suggest that he was a chauvinist because he wasn't. He was an excellent mentor and a giant in the legal world. It was just a different time. He was brought up in a different era. He was extremely supportive of me.

My point here is that times have changed, Thank God! I think it is important to remember that there has been improvements. There is still discrimination, unfortunately, but we have gotten a lot better about recognizing it and not tolerating it.

My final word on the 1966 classified ad is the use of the word "girl". I know it is not correct to call women, girls or gals, if it is used in a putdown way. However, you can call me a girl. It makes me feel younger.

The truth is you really don't know when interviewing. There is no way to know. When I was interviewing for an associate to work with me several years ago, I thought I wanted someone knowledgeable in employment law. I ended up with someone who had no experience in employment law and it has been my best hire ever. What made me decide to offer this person the job? It was the way he talked about his kids when I inquired about his family. His response was warm and genuine. I thought, "Well, I don't know how he will be as a lawyer, but at least I know he is a good guy!". And boy was I right. He is a super nice, genuine human being and an excellent lawyer. So my tip on this would be go with the person you like and the person that has morals that you admire.

When I was interviewing secretarial prospects recently, I thought how yucky and nerve wracking it must be to interviewed in today's world. There is so much competition and jobs are at a minimum. The pressure must be intense. The Houston Chronicle columnist, L.M. Sixtel, recently wrote an article on interviewing. Her article is titled, "Stay upbeat when job hunt brings you down" http://www.chron.com/default/article/Sixel-Stay-upbeat-when-job-hunt-brings-you-down-3476119.php Great advice in general and especially so when you are interviewing. My roommate in law school got so many rejection letters she quipped, "I will wallpaper my bathroom one day with all my rejection letters." She had a great attitude and still does, and she is a federal magistrate.

What should you do when going on an interview. The women I recently interviewed had done their research on me, meaning they checked me out on the internet and my website. Both did this so there was no advantage to either one of the prospects. Both were professional and both had good credentials. Again, it came to a gut reaction and I chose the one that I liked the best. (It didn't hurt she was also a dog lover.)

This may sound too simple but I think in the end it is the best way to approach the process. When you are interviewing you want to make the best impression possible but you also NEED TO BE YOUR SELF. The more genuine you are, the more likely you will be chosen. Plus, look at it this way, you don't want to work somewhere that requires you to be someone other than yourself. It is not going to work in the long run and you will be miserable.

When I was in my last year of law school, law firms would interview students at the school for positions. In those days, women were in the minority at school. Employers were concerned about hiring women because they might have kids and that would interfere with work, or at least that is how they thought. Anyway, I was a rebel in school and quickly got tired of the interviewers' questions to skirt(no pun intended) this issue without violating the law. They couldn't say, "Are you going to have kids?" so they would say, "Where do you see yourself in 10 years?". I became very tired of this so when two partners from Mills Shirley (my law firm) asked me this question, I said, "Sitting in your chair!".

I later learned that they were hung over from partying the night before , so my comment WOKE them up. They thought it would be very fun to spring me on the other partners in Galveston.

So, I was invited to come to Galveston for a second interview. Only problem was they forgot that they had invited me. When I showed up for my interview, I was handed an application for a secretarial position which kicked my Italian personality into gear. I said I drove all the way from Waco and I was here for an attorney position, period!

I learned later that there was quite an uproar in the back over who invited me and who forgot about it. Anyway, I have always said they were so embarrassed about the entire affair, they felt they had to offer me a job. When they offered me the job, I thought they were a crazy firm. Then I figured that might just be the perfect fit for me, and 32 years later I am still here.

Moral of the story, be yourself when you interview. That is the only way to live life and the only way to get the job that works for you!

I hope you are not like this, but I would replay my conversations with her over and over in my mind. I would feel miserable, resentful and just plain old mad.

When I would interact with her, I would explain what I saw as the problem in the office. She would always respond with explanations in a defensive manner. I felt like she was always making excuses.

Finally, I confronted her. When she started her usual explanations, I stopped her. I told her I didn't want explanations, but rather I wanted her to know how I felt about the situation. I told her she didn't need to agree, but I hoped she would listen to me. She agreed and I began to explain that when she immediately became defensive and tried to explain the problem anyway, I felt like she didn't believe me, that she blew off my concerns. I told her she didn't need to agree with me but at least let me know that she heard me.

Once this was off my chest, I instantly felt better. She responded that she was trying to make me feel better by offering all her explanations. I explained to her that I just needed to know she heard me and that when she launched into her explanations it was like my points or concerns didn't matter. I knew we had a communication problem but I thought it was hopeless. When I confronted the situation directly, instead of complaining about her to others, I took the first step towards true communication.

It's hard to be direct sometimes. Most of us, don't like confrontation. We will suffer in silence before we speak up. This just makes it worse, of course. When it is a touchy subject, it seems easier to complain about it with your coworkers or friends. It is hard to directly confront someone about a problem. Why? We don't want to hurt anyone's feelings. We are afraid if we mention the problem it will start an argument. We think we can just ignore it.

When we take this path, what seems like the easier path, we just make it harder on ourselves. In life, you reach a cross road and there are two paths. Which one should you take? One path seems easier (ignore the problem) and the other path seems harder (confront the problem). But in the end, the easier path always turns into the much harder path.

When you take the so called easy way, you remain resentful and you complain about it to others. The problem doesn't go away, it just festers. The longer the problem is ignored, the worse it gets. It is best to take a deep breath and take the path that seems like the harder one. Take a deep breath and honestly, in a nice voice tone (see my blog article on voice tones)

http://www.cotropiaworkshops.com/blog/2011/12/i-am-sick-of-peoples-nasty-voice-tones-and-why-it-is-so-damaging-at-work-and-at-home.shtml discuss the issue directly. Be honest and communicate the issue with the person directly.

Tell them directly what your issue is. You will be amazed how the problem that seemed so difficult, will disappear. They will appreciate your honesty. I bet they have been feeling frustrated about the problem too. Both of you will feel much better. Life is too short, to go around frustrated or mad at others. Get it off your chest but do it NICELY.

The "No Way This is Right Group" believes that what someone does in their home shouldn't matter to their employer. The argument is, " BIG BROTHER IN THE EXTREME." If you can tell someone they can't smoke at home, what is next? Will it be you can't eat a greasy cheeseburger at home because it isn't healthy? Or you cannot snow ski or water ski because you could break your leg? Enough is enough. If I do a good job, my Employer can just butt out of my life and "don't let the screen door hit you in the ass as you leave".

The contrary argument goes like this. We all know that smoking is bad for you. Everyone knows that you can't smoke at work anymore. Smoking creates or contributes to health issues, i.e. rising health insurance costs. Health insurance costs are off the charts. Smoking increases absenteeism and affects the remaining employee who don't miss work. People who are heavy smokers have bad smoke smell. (See my past article on smells at work).

The leader in the "you can't smoke at home" is Weyco Inc., a Michigan company. Weyco's CEO Howard Weyers stopped hiring smokers in 2003. In January 2004, Weyco implemented an organization wide testing program for tobacco use. If the employee didn't take the test or was positive on the test, the employee had to pay $50. But the employee had an option, he or she could sign a letter of intent to quit, and Weyco would waive the $50 penalty, plus pay for a treatment program for them.

Four employees refused the test and left the company. Two of those employees were interviewed by 60 Minutes correspondent Morley Safer. www.smokersclubinc.com/index.php

Weyco also began random testing in 2005. Weyers informed his employees that if they tested positive in a random test, they would be sent home for a month without pay. When the employee returned to work, they would be tested again. If they tested positive again, they could not return. If they were negative, they could return but would have to sign a "last chance" agreement that they could be tested daily.

Weyers stated in a interview(www.welcoa.org/freeresources/pdf/weyers_smoke_fire.pdf) that in January of 2006, they extended their non-tobacco use to spouses who were on the Company's medical plan. If the spouse was on the Company's medical, they had to be tested. If a spouse tested positive in 2006, it resulted in increased costs for the employee of about $80 per month. Again, the spouse could sign a letter of intent to quit and Weyco would waive the fee and pay for the treatment plan.

Weyco has the most aggressive anti smoking policy that I have found. In Texas there are companies that refuse to hire smokers. Baylor Health Care System in North Texas will not hire employees that use tobacco if any form. The FDA estimates smoking costs American employers some $200 billion a year in lost productivity and increased medical costs. In a CBS interview http://dfw.cbslocal.com/2011/09/22/only-non-smokers-need-apply-at-baylor/ Baylor Health Care CEO Joel Allison stated, "It's about how we continue to deal with the rising health care costs."

Can companies legally refuse to hire smokers? Yes because smoking is not a protected class like race, gender, ethnicity, national origin or age. The CBS article also quotes Dallas attorney Thomas Brandt, "People think well, that's discriminatory, but really there are only certain factors that you cannot consider when making hiring decisions."

Could nicotine addiction be considered a disability? Under the American with Disabilities Act (ADA), nicotine addiction was not considered a disability. Smoking or nicotine addictions were easily remediable, meaning that since a person could quit, they were not considered disabled under the ADA. In January 2009, the amendments to the ADA (ADAA) were passed. Now it does not matter if the impairment is easily remediated. The determination under ADAAA is whether an impairment substantially limits a major life activity. So under the ADAA, whether or not you can quit smoking is not the issue. The issue is does it substantially limit a major life activity? Could the employee argue that his employer perceived or regarded him as having a disability. Perhaps, since being regarded as disabled is actionable even if you don't meet the statutory definition. Are those cases viable? In my opinion, no. But it remains to be seen.

Is smoking a constitutional right? Again the answer is no. Do you have a common law privacy right to smoke in your home? No you don't. The Public Health Institute presented a paper on this issue. (http://www.phi.org/pdf-library/talc-memo-0051.pdf ) As pointed out in the article, the Constitution protects only personal rights that can be deemed fundamental or implicit in the concept of personal liberty. The guarantee of personal liberty relates to an individual's bodily privacy and autonomy in the home. Concepts that would be included in this protection involve marriage, contraception and family relationships. Smoking is not included in this list. There is no constitutional right to smoke.

So after the smoke clears, what should businesses do if they are contemplating a no smoking policy. The first step would be to institute a smoking cessation program. Give employees time to comply. Announce that all new hires will be presented with a form that specifically asks if they smoke or use tobacco products. A no smoking hiring policy is the first step. Depending on your industry, this may affect your applicant pool. Like any policy, you cannot pick and choose. If you have a policy of not hiring smokers, you cannot make an exception for Uncle Bob.

To enforce a no smoking policy period, you would have to have random testing for nicotine. There are inherent problems with any random testing program. I recommend waiting to take that step. Implement the no hiring policy and get your smoking cessation program going. This may be enough. Random testing for nicotine will send a negative influence in your work force. As a final note, I hope we don't have a no eating fried food policy because if so, I am in big trouble.

I didn't know much about Jobs and I found the book fascinating. I loved the way Jobs was totally focused on creating the perfect, beautifully designed, product, i.e. iPhone, iPad, iPod. His creative vision was astonishing. His mantra was to put a dent into the universe; and he did. Boy did he change our world and our culture. Jobs was driven and had a laser focus. But what was it like to work with him?

According to the book, he had a habit of telling employees their ideas were shit, then later claiming that their ideas were his. Employee A would explain a new idea or concept to Jobs, and Jobs would proclaim the idea was SHIT. Later they would be in a meeting and Jobs would announce his new idea and it would be the same as mentioned by Employee A. How's that to take the wind out of your sails? Feeling low, experience this type of behavior and you will sink to a newer low. This behavior is like stealing from the employees. It robs the employee and steals their soul.

Jobs had the unique ability of either destroying an employee or pushing them to achieve beyond their potential If the employee was strong enough to withstand Jobs' put downs, the employee could be pushed to achieve feats that were thought to be impossible. The book describes Jobs distortion reality field When employees were in Jobs presence, Jobs could distort reality and have the employees believing that the impossible could not only be done, but could be done in under two weeks. Once the employees were out of Jobs' presence, reality returned and the employees were faced with inventing difficult software and doing it in an unrealistic time frame. The funny thing was that because of this distortion reality field, items and feats were achieved that might never have been done.

Jobs was difficult because he didn't read people's emotions or didn't care about their emotions. He was driven to make the perfect product and people's feelings just weren't that important. Some people just couldn't work with that behavior and quit. Others tolerated his bad behavior because he was brilliant and they were excited to be part of the process.

This worked for Apple and Jobs but it doesn't work for the rest of the work world. Taking people's ideas and claiming them as your own, would make you a hated and despised boss. Telling people their work is SHIT isn't going to motivate anyone.

You motivate employees by inspiring them, not putting them down or using fear management. To inspire someone you must set the example and do it from a positive space.

Carla Cotropia

I am asking this question because I woke up today in a grumpy mood. Why? Who knows. I certainly don't. Why is it that sometimes we just feel like a grump? I can hear my Mother saying, "If you complain because you don't have shoes, think about the people who don't have feet.". When she would say that to me, it never helped my grumpiness. I didn't care about those people. I just was concerned about my own problems.

I was once told that the most important friend I had, was a little creature that sat on my shoulder. This little imaginary creature was Death. Death was my most important friend because it was there to remind me how short life really is. This seems like a weird story but it has a lot of truth. If you think about Death as a friendly reminder that life is short, perhaps you won't stay in a grumpy mood as long.

Sometimes I think people stay grumpy because it seems like it is just easier to be in a bad mood. Look at all the things that are wrong in the world (as my Grandmother would say, the whole blankety blank world is going to hell in a hand basket). There are always plenty of reasons to stay mad or grumpy but who does it hurt? Only yourself. Staying mad and grumpy only hurts the person who is the grump. But your friends, coworkers and family have to tolerate your black cloud and that isn't fair either.

I think if people want to be grumpy and cranky they should make sure they are away from all other people. But that isn't what happens. Those grumpy people want to dump their negative feelings on others. Does misery love company? Have you ever been in a situation where everyone is having fun and someone joins the group and instantly the mood changes? Saturday Night Live captured this well with their "Debbie Downer" skits. Debbie Downer always manages to bring up something negative. http://www.hulu.com/watch/68225/saturday-night-live-debbie-downer

In life we can avoid those Debbie Downer friends but that is not true at work. It is one thing to be an occasional grump and another to always put a negative slant on the world. I have seen employees that are negative and they have no idea that they are. Other employees avoid them, and they are clueless why.

In the workplace, I see bosses or managers that take their stress out on the employees by being in a bad mood. They are curt in their words, cut people off mid sentence, make difficult demands and act like a brat. These bosses or managers get away with it because they can. But it creates havoc in the workplace. A brilliant man but terrible boss was Steve Jobs. More about that in my next blog.

I just looked at my shoulder and decided I was no longer in a grumpy mood.

Carla Cotropia

The Margarita---Nectar to the Gods......

The first margarita rule is to never, I repeat, never go anywhere near a bottle of Rose's Lime Juice. Rose's Lime Juice, even one tiny drop, will ruin a margarita.

The second margarita rule is to never, ever consider using sweet and sour mix. I can barely write those words without a shudder. No Sweet and Sour!!!

A true margarita is very simple. It is one third tequila, one third Cointreau Liqueur and one third lime juice. Sometimes it is 2 oz. tequila, 1 oz. Cointreau Liqueur and 1 oz. lime juice. Either version is for the purist. When I was younger I was very strict about this but now I believe that in order to not pass out after one drink, the formula needs to be tweaked.

There are several ways to tweak the basic formula, but first, let's discuss the tequila. You do not need to have an expensive tequila in your margarita. But with that said, you do not want a rot gut one either. One tequila I use often is Sauza Conmemorativo Anjejo. It is reasonable in cost and is a good quality. Anejo means aged and I like the smoky flavor it adds.

Another key point is the Cointreau Liqueur. Triple Sec is often substituted because it is cheaper. But Triple Sec has a harsh taste and I prefer to not use it. I have found a cheaper alternative to Cointreau and it is Citronage. Both Cointreau and Citronage are orange liqueurs. Citronage is cheaper and I think as good.

Now for the third ingredient, which is the lime juice. This is where we are going to tweak. I have several tweaks. I will start with the most difficult and end with the easiest.

The best, and most time consuming to do, is to add fresh squeezed orange juice with your fresh squeezed lime juice. I find adding fresh orange juice knocks down the acidity of the lime juice. I also like to add a little Agave Nectar or cane sugar if you want the margarita sweeter. I don't make my margaritas with the method of one third tequila, one third Citronage and one third lime juice. I put in more juice than I do the tequila. Here is an example. I am going to use cups rather than ounces. No sense not making extras. Mix one and a half cups tequila, one cup Citronage and three and a half cups fresh squeezed orange juice, a few squeezed limes and a squirt of Agave Nectar.

An easier version is to use a prepared bottle mix, with some fresh squeezed oranges to the mix. My favorite prepared bottle mix is "Stirrings Simple Margarita" (www.stirrings.com). It comes in a jar and can be found at World Market and Rice Grocery. I bet Specs has it too since they have everything associated with alcohol. In this version, you still add fresh squeezed orange juice to cut the tartness a little. Orange juice you squeeze yourself (no I am not Martha Stewart) is best, but you can often find fresh squeezed orange juice at Central Market and Rice Grocery. Please do not use frozen orange juice. That ruins the entire concept. You don't need exact measurements, just taste as you go. If you want it stronger add more "Stirrings Simple Margarita" and orange juice.

If you are pressed for time, you can fall back on a very easy third tweak. Take a can of frozen limeade from your local grocery. Dump the contents in a pitcher. Next, fill the can up with tequila and add it to the pitcher. Throw in a little extra tequila, maybe half a can. Continue with a can of Citronage. Then add a can of water to the mix. Maybe two cans of water if you want to soften the impact. Squeeze a couple of limes in and you have the fastest --not the best-- but passable margarita.

If you have any margarita left- overs, just put them in a container and pop into the freezer. Who knows when you will need a handy margarita.

The Margarita---Nectar to the Gods......

REASON ONE --- EMOTIONS

One reason is emotions. It is rare, but sometimes the parties come to mediation only because it was mandated by the court. The parties just don't want to settle under any circumstances. However, for the most part one of the two reasons that cases don't settle is because of emotions. These are some examples.

1. The plaintiff is emotionally tied to the case and doesn't want to give it up.

2. The plaintiff wants the case to fix everything that has happened in his/her life and wants the defendant to be humiliated in court.

3. The plaintiff's attorney doesn't want to settle because he/she is pissed at the other side and wants a showdown in the courtroom.

4. The defendant can't stand the thought of giving the plaintiff one dime and is emotional about the case.

5. The defendant doesn't see any way he/she can lose.

6. The defendant has already spent a lot in attorney fees and doesn't want to pay any more money.

7. The defendant's attorney doesn't want to settle for personal or financial reasons.

Whee...there are a lot of reasons a mediation can derail. I think these problems can be overcome. This is what a good mediator does. Our job is to help the parties deal with their emotions. The bigger problem to settlement is the second reason cases don't settle and it is the problem of unrealistic views of the value of the case. This applies to both sides. Believe me, I see unrealistic settlement amounts from both plaintiffs and defendants.

REASON TWO--- UNREALISTIC SETTLEMENT AMOUNTS

Nobody has to settle. All lawyers know this. There is no bigger high than winning a trial and no lower low than losing a trial. Trials are a roller coaster of emotions. Lawyers like this type of adrenaline high, but normal people don't. No one, other than lawyers, really likes to go to trial.

So what happens at mediation? Many times the parties have unrealistic views of what the case should settle for at mediation. Let's take plaintiffs first. The attorney

is the advocate (I like to say warrior) for the client. The attorney is looking at getting the most possible money for their client. In addition, the attorneys have to pay their light bills too. So sometimes the amount wanted at mediation to settle is not going to happen. It is too high. When the number is very high, it doesn't put any pressure on the defendants. If you have defendants that don't want to settle (see Reason 1) they are glad when the plaintiff is too high in his/her demand. They didn't want to settle anyway. When the plaintiff doesn't get in the "zone of possibility" no pressure is placed on the defendants. What is the Zone of Possibility? This is my term for a range of settlement amounts that could be possible. It may be higher than the defendant wants or lower than the plaintiff wants, but it is in a Zone of Possibility. Even if the parties get close to a Zone of Possibility, it still puts pressure on the other side. You want to make the other side nervous if they don't settle. In order to do this you have to be in the Zone of Possibility.

I don't like the phrase that a good mediation is one where both sides leave mad. No way. A good mediation is when we get in a Zone of Possibility and the parties settle. One or both sides end up with a number that they hadn't considered, but all in all, they are happy that the case settled.

Let's look at the problem of unrealistic settlement amounts from the point of view of the defendants. Defendants, you have to put enough money on the table to make the plaintiffs nervous about leaving it there. What I see often is the "why do I have to go first" problem. The plaintiffs are in the stratosphere of high demands (and they know it) and the defendants have offered bread crumbs to settle. Both sides know they are off base but no one wants to go first. The plaintiffs say "why should we come down when they have offered bread crumbs," and the defendants say "why should we put serious money down, when the plaintiffs are on the moon with their demand." No one wants to go first. It's hard for the defendants to offer money when the plaintiffs are very high in their demand, but until we get some money on the table, we aren't going to be able to put pressure on the plaintiffs. Once we approach the Zone of Possibility, settlements can happen.

You have to be patient and work with people's emotions. Treating them with respect is also key. No one wants a lecture about why their case is good or bad. What they do want is help getting to the Zone of Possibility.

I would love to help you get there.

So what is wrong with this, you ask? There are two problems. Let me explain.

Problem One

Many times the Company gets busy and no one remembers to do the evaluations or the evaluations are done sporadically, if at all. For example, an employee gets fired. The employee, in his wrongful discharge case, complains that he was never evaluated. He claims he was discriminated against because of his religion. The Company says it was his performance. The Employee counters that he was never evaluated and the manual said he would be. Failing to perform an evaluation isn't against the law, but juries don't like it if your manual requires it and you don't do them.

Problem Two

The Company performs employee evaluations each year. The supervisor knows employee Sally has performance issues, but since he doesn't want to hurt Sally's feelings, he gives her a good evaluation. He may even check the excellent box. As an arbitrator, I see cases where the Company states the employee had performance problems and the employee points out the excellent evaluations she has received. You can see the problem.

Someone came up with the idea that employees should evaluate themselves and some companies do these types of evaluations. I think this is a crazy idea. What employee is going to admit they have faults? I don't see what the self evaluation does except make more work for the supervisor.

You don't have to do written evaluations. Yes, it is true. If you want to do them, make sure your supervisors are trained on how to do motivating evaluations. Most supervisors have no guidance concerning this. This is why one supervisor may be very critical with his employees and another supervisor, in the same company, may be very lenient. This is a problem. Train your supervisors to give constructive criticism without undermining the employee's spirit. Teach them that a false or overrated positive evaluation creates more problems for the Company. Teach them that it is important to be honest in a kind way, without creating a false impression.

An alternative to evaluations is to give written warnings and write-ups when needed. When the employees do a good job, praise them. Most supervisors forget

Our workplace today is getting smaller and smaller, plus we spend more and more time there. Why wouldn't you want to have that environment as nice as possible for everyone. You may love your pine scented with a touch of orange blossom candle, but everyone else may not. I was once on a plane, strapped in my seat, reviewing my notes on discrimination for a speech I was to give later that day. I noticed my seatmate craning his neck to look at what I was reading and he finally inquired about it. When I told him, he wanted to know if he could ask me a question. When I gave him the go ahead, he said his wife was driving him crazy. Every day she came home complaining about work. The problem was the hand lotion her coworker used. She hated the smell of that hand lotion. He wanted to know if that was discrimination. I told him probably not, but that his wife should have asked the coworker to please not wear apply the lotion and if that didn't work to talk to HR. After that incident, I have always included smells in my trainings. It is the little things at work that bug people. Those little things, (just like a splinter in your finger) get bigger and bigger, become infected and may eventually turn into a lawsuit.

The incident on the plane happened long ago, but now smells can become discrimination. One example is the case, Susan McBride v. City of Detroit. McBride was a senior city planner at the City of Detroit. McBride had multiple chemical sensitivities. All was well for McBride at work until a new coworker began plugging in a room deodorizer and wearing a very strong perfume. McBride asked her coworker to stop with the smells. The coworker unplugged the room deodorizer but refused to stop wearing the strong perfume. McBride became sick and ultimately had to take time off from work. McBride saw a doctor for the issue and missed a lot of work. The City of Detroit took the position that allowing McBride to take FMLA leave was an accommodation under the ADA (Americans with Disabilities Act) (This was before the amendments in 2009). McBride wanted a scent policy at the City but the City refused.

In 2008, the Court found that the failure to work with McBride concerning a scent policy was a failure to accommodate under the ADA. McBride received $100,000 and the City instituted a scent policy that allowed mild scents in moderation but prohibited strong or offensive scents that could be a detriment in the workforce.

It is important for HR to be sensitive (no pun indented) to the issues of smells. I recommend that candles and room deodorizers be prohibited at work. Body odor is a subject that should be discussed by HR with the offending participant in a private setting. This is also true for perfumes. There is no constitutional right to wear a strong perfume in the workplace. The subject should be approached sensitively but still addressed. How many of you have been on an elevator, it stops on the floor and a woman gets on. Suddenly the smell of a very strong perfume overpowers the elevator. Gag, you are trapped. Or better yet, you are at a restaurant enjoying your meal and a woman walks by, now the delicious flavors of your meal are blocked by a strong perfume. This nose peeling smell is left even after the offending woman has exited from the scene. To her it is a scent, to others, it is a smell. I thought perfume was suppose to be something that you smell when you hug someone, not when you walk by.

So much for my smell sermon, but at work it really should be a "no smell" zone.

In order to bring a discrimination lawsuit, you must be in a "protected class". A protected class is either gender, sex, disability, pregnancy, age, or veteran status. Until recently weight was not considered a protected class. However, the amendments to the Americans with Disability Act, make it clear that obesity can be considered a disability. So firing someone because they are "large" can be a big legal no no.

What do you do, as an employer, when you have a "large" employee? Weight issues at work are tricky and it really does pay to consider them carefully. If the job is one of safety, weight can become an essential job requirement. For instance, if the employee works in a job that requires a safety harness, the weight requirements of the safety harness must be met. So if the weight limit of the safety harness is 300 lbs and the employee weighs 400, he can't safely wear the safety harness.

In our example, the Company should try to accommodate the employee by looking for a larger harness. But what happens if no such safety harness exists?. The job requires that the employee wear the safety harness in order to safely perform the essential functions of his job. The employee can't perform the essential functions of his job because of his weight.

The accommodation issue is a tricky one, really a legal mine field. In our example, I can imagine the EEOC saying, "There must be other jobs that the "large" employee can do; another job that does not require wearing a safety harness. Transfer the employee to that job." But maybe there isn't a job that the "large" employee can be transferred to, so now what?

Consider this scenario, the job is in a plant where the employee works as an operator but part of the job is to unload trucks when they come into the plant. Being an operator does not require wearing a safety harness, only unloading the truck requires that the harness be worn. The Company could accommodate the "large" employee by deleting the requirement of unloading the trucks from his job duties. But in this scenario, all the employees dislike the requirement of unloading the trucks. None of the operators want to do that part of the job. What happens if the "large" employee no longer has to perform that hated chore. Do the other employees been begin to resent him because of it? Do the other employees complain among themselves that it "isn't fair". Do some complain that they aren't given any consideration when they have back problems, etc.

What happens if the "large" employee is very popular and is liked by all. Consider what happens if the other employees pitch in to cover for the "large" employee. No one minds picking up the slack for him (the dreaded truck unloading job) because why? They LIKE him.

Now consider what happens when another "large" employee can no longer wear the safety harness safely. This "large" employee is not liked. No one wants to cover for him. There is much resentment when he no longer has to perform the dreaded unloading job. Everyone else, starts to slow down when the trucks roll in. The resentment builds and ultimately production slows to a snail pace. Every step of unloading those trucks makes the operators angrier and angrier. You get the picture.

One of human resources' favorite refrains is to "keep it equal". This is because you are not discriminating against anyone when your policies are applied equally to everyone. The only problem is this is the real world and it is often times very hard to "keep it equal". Parents of several children will tell you the same. It is very hard to treat the kids the same because they aren't the same. But in business, it is very important that you do keep it equal. Once you make an exception for the liked or popular employee, you will have to do it for every other employee, including the bad employee. It opens up a Pandora's box of employment problems.

Back to our question of what to do with the "large" employee at work. In the EEOC case above, the BAE Systems, Inc. would have been much better off if they had talked to the employee privately about his weight issues and offered to provide company sponsored Weight Watchers programs or The Biggest Loser contests. These conversations should be conducted privately with the employee and done in a sensitive way. You don't say, "We are concerned that at your present weight you are a walking heart attack and we can't afford our insurance premiums to go up." If the employee works at his desk, and gets to work on time, the amount of time he takes to walk across the parking lot is not an essential function of his job. In the EEOC case, the "large" employee stated that he offered to work less hours and take a pay cut but the BAE Systems, Inc. just fired him instead. It may be that the employee's work performance had deteriorated. If so, counsel him on that and if he doesn't improve, terminate based on that reason, not the speed in which he walks across the parking lot.