Excerpts from Crucial Confrontations by Joseph Grenny

“I have a judicial colleague who is extremely overwhelmed by his workload. Although he is offered help periodically by his judicial colleagues he always seems to find a reason why that help won’t work. He continues to complain about his workload.  I would like to be able to help him, but I am not sure how to start the conversation. What advice can you offer?”                                                                                                                                                                                                                                                             

Personal Crucial Conversations @ Work: Overwhelmed and Complaining

 It seems you’ve asked yourself what you really want and determined that you’d like to help your colleague work through this problem.  Since you have taken the coaching path, I’d suggest your first conversation be about setting boundaries.  

 In this conversation, share your insights about the pattern.  He is stuck; there is a persistent and repeating problem that he can  he is address with you and  there is an opportunity to change the situation.  I suggest that after you share your insights about this pattern, ask him if he sees it the same way and then ask if the two of you could explore some solutions. You now have a clearly defined mutual purpose.

 You can now explore some options with him about how to improve his skills:

 1.      Training:  Signing up for a CLE, look at what offerings the National Judicial College or the Institute for Court Managment has  on how to multi-task and prioritize workloads.

 2.      Reassigning Workload: Perhaps there are some unidentified organizational trends increasing his workload and some of his work needs to be addressed.

 3.      Spending time practicing approaches, scripts, and responses that would help with the boss: In this situation, you are sharing specific ideas about how to start the conversation, what to say, and how to respond to your colleagues’s anticipated comments. This type of dialogue has moved from venting and gossiping to coaching.

 4.      Making a Commitment to Change:  Your colleague needs to make a specific commitment to change.  

 If we assume good motives and clarify purpose, we can do our best to have conversations that center on coaching instead of venting and, in the end, deliver results.

Adam Liptak reports in the New York Times about two cases the Supreme Court will hear today regarding effective assistance of counsel in plea bargaining.  Anthony Cooper shot a woman in Detroit in 2003 and then received laughably bad legal advice. Because all four of his bullets had struck the victim below her waist, his lawyer said, Mr. Cooper could not be convicted of assault with intent to murder.  Based on that advice, Mr. Cooper rejected a plea bargain that called for a sentence of four to seven years. Later he was convicted, and he is serving 15 to 30 years.

At least Mr. Cooper heard about his plea offer. Galin Frye’s lawyer never told him that prosecutors in Missouri were willing to let him plead guilty to a misdemeanor and serve 90 days in prison for driving without a license. When Mr. Frye did plead guilty after the offer expired, a judge sentenced him to three years.”

http://www.nytimes.com/2011/10/31/us/supreme-court-to-hear-cases-involving-bad-advice-on-plea-deals.html?_r=1                                                                                                                                                                                               

The question presented in Lafler v. Cooper and Missouri v. Frye is whether a defendant who rejects a plea offer because of ineffective assistance of counsel is entitled to relief if the defendant later receives a longer sentence than the prosecution had offered under the plea.  In Lafler, the Sixth Circuit held that Cooper’s attorney provided ineffective assistance in advising Cooper to reject a plea bargain, and it ordered “specific performance” of the rejected plea even though Cooper had later been convicted at trial. In Frye, the Missouri Court of  Appeals did not order “specific performance,” reasoning that it lacked the power to order the state to reduce the charges against Frye.  Instead, the court ordered that the guilty plea be withdrawn, and it remanded to allow Frye to either insist on trial or plead guilty to either the felony offense or whatever amended charge the state deemed appropriate.

For the AJA blog to grow and provide timely information to judges it cannot be just one person’s project or ideas. This blog started as an experiment on how to better serve American Judges Association members. We have been fortunate to have periodic commentary from Roger Hanson on court leadership and are pleased to add a second feature. Periodic commentary by Chuck Ericksen on judicial wellness.

JUDICIAL WELLNESS THOUGHTS FROM CHUCK ERICKSEN:

             I am thrilled that Judge Kevin Burke asked me to contribute some thoughts on judicial wellness.  After eight rewarding years at the National Center for State Courts where I got to know Judge Burke, I stepped away to pursue a doctorate in order to study leadership stress. Having been a judicial educator in Washington State, I was particularly interested in exploring stress and wellness in the domain of judges.  I owe a great debt of gratitude to The Honorable Richard Jones of the U.S. District Court in Seattle for allowing me to spend several hours discussing his judicial career and in particular the experience of handling a high profile case (State v. Ridgway, 2001). My interest in judicial wellness is also drawn from the anecdotes, personal stories and concerns about the impact of judicial stress that judges have shared with me over the last twenty years.  I hope over the next several months I can share some thoughts and ideas regarding judicial wellness that furthers a very important conversation.

 Herbert Dunn (1977) first coined the term wellness to signify “an integrated method of functioning which is oriented to maximizing the potential of which an individual is capable, within the environment where he is functioning. It requires that the individual maintain a continuum of balance and purposeful direction within the environment where he is functioning.” Dunn’s work led to the recognition that a tremendous difference exists between a ‘health’ model and a wellness model. The fundamental essence of wellness is that health and dysfunction can be viewed on a continuum of human potential. A wellness continuum extends from low levels characterized by health robbing behaviors to higher levels of wellness characterized by personal responsibility for one’s health and a conscious commitment to growth and balance.

Health fields have traditionally focused on pathology and suffering rather than the causes of positive functioning. In my research, a positive approach focuses on why judges and other leaders demonstrate resiliency despite significant stress. From this perspective it seeks to identify the forces that promote resiliency and influence an individual positively.

I touched down in Kabul just a few days ago to participate in a USAID Rule of Law project. Arriving at the airport, I was met by a security detail that transported me by armored vehicle through a surreal landscape of security, wreckage and concrete barricades to the compound where I will spend the next thirty days. Seems like the perfect place to reflect upon stress and resiliency. 

Notwithstanding the limited number of studies addressing judicial stress, research indicates that trial court judges experience high levels of stress and exhibit strain in various forms such as expressing annoyance to lawyers and litigants, having trouble making decisions, experiencing difficulty concentrating and burnout. Ultimately, the manifestation of stress in the form of strain has significant consequences for both the individual judge and the judicial system by way of reduced efficiency, interpersonal conflicts, lack of engagement, physical and mental health concerns and negative behaviors that may lead to ethical violations.

The concept of human resilience has received considerable attention in recent years in the psychological literature. In one study, resilience is defined as “the capacity to rebound from adversity strengthened and more resourceful. It is an active process of endurance, self-righting, and growth in response to crisis and challenge” (Walsh, 1998b, p. 4). In my short time here in Afghanistan, I have seen a tremendous amount of resiliency. There is much to learn from those who have survived the crucibles of life and emerged stronger. More to come…

Chuck A. Ericksen, Ed.D.

Howard Bashman has a very interesting blog entitled, How Appealing. It can be found at: 

http://howappealing.law.com/index.html.  

He has an interesting post which reads as follows: 

“This is a strange case.”  http://howappealing.law.com/102711.html#043352

 So begins the opinion that Chief Judge Alex Kozinski issued today on behalf of the majority on a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit. Here is the entire first paragraph of the majority opinion:

 This is a strange case. Its resolution hinges on the absence, as a factual matter, of something we must accept as a legal matter. There are unlikely to be many more like it, so this opinion’s precedential value is probably limited. We nevertheless publish pursuant to General Order 4.3. While we’re at it, we offer some advice to lawyers: Don’t apologize unless you’re sure you did something wrong. And there’s also a lesson for district judges: Don’t accept too readily lawyers’ confessions of error or rely on your own memory of what happened. Trials are complicated and we sometimes misremember details. That’s why we have transcripts.

 Circuit Judge Sandra S. Ikuta, who earlier in her career worked as a law clerk for Judge Kozinski, issued a dissenting opinion.

Michael Dittberner is an attorney in Minnesota who has extensive family court experience. He is responding to the article in the Washington Post advocating a longer waiting period in divorce cases.  See https://blog.amjudges.org/?p=228  

If a one year waiting period is adopted in a state which has no waiting period or a waiting period of less than one year, I suggest that the unintended consequence of the enactment of such legislation will be more litigation and less reconciliation. If a litigant knows that it will now take them one year to get divorced, the natural inclination will be for them to file as soon as possible to ameliorate the effects of the waiting period. I suspect that such over-anxious filers will not be thinking too much about reconciliation and instead will be focusing on soldiering through the process of divorce.

 In Minnesota, where I practice, we have adopted innovative and successful case management programs in our family courts. These programs, which have reduced the amount of litigation and costs for parties going through a divorce, will be negatively impacted by the imposition of a waiting period. There are many cases which currently don’t need to be managed because they are being resolved through mediation and negotiation prior to the filing of the divorce petition. If the parties to such cases feel compelled to file their petition as soon as possible in order to propel the divorce process forward without first mediating, they will unnecessarily add to the parties’ costs and the workload of court personnel who now have to set aside time on a judicial officer’s calendar to triage a case that otherwise would have been resolved upon filing. In addition, parties to a divorce who do not want to wait until the year is over, will be more likely to seek certain types of remedies that our efficient case management system currently discourages them from seeking, such as orders from temporary relief, harassment restraining orders, orders for protection, and child support orders issued by child support magistrates. When parties to an elongated divorce proceeding cannot reach agreement over temporary support and parenting time issues and cannot obtain finality, the result will be additional conflict and litigation, poisoned relationships, increased costs, and strains on our scarce judicial resources. The one year waiting period is a solution our state cannot afford.

Among the areas of law where there is the greatest dissatisfaction is how American courts handle divorces. Many judges don’t like the assignment so some courts treat the assignment as a rite of passage for the least experienced judges. The nature of the conflict does not easily lend itself to resolution through the adversary system. Parents who try a contested custody case frequently find that there ability to thereafter co-parent is made even more difficult by the conflict escalation caused by the trial. The expense of the process can make both parties pretty poor if attention is not given to containment of legal fees. Should courts care about these issues? There is near universal agreement on that:yes. But should courts (or the law) care about more than just not making marital conflict worse but actually “save” marriages. There are some who say to this question yes as well In an artile in the Washington Post a therapist and former Georgia Supreme Court Justice argue:. “Conventional wisdom holds that about half of U.S. marriages end in divorce — and that most Americans wish the divorce rate were lower. Still, many are skeptical about whether we can lower the divorce rate without trapping more people in bad marriages.

This skepticism is fueled by two common assumptions: Divorce happens only after a long process of misery and conflict; and, once couples file for divorce, they don’t entertain the idea of reconciling.
We now know those assumptions are wrong.

Research over the past decade has shown that a major share of divorces (50 to 66 percent, depending on the study) occur between couples who had average happiness and low levels of conflict in the years before the divorce.

http://www.washingtonpost.com/opinions/delaying-divorce-to-save-marriages/2011/10/19/gIQAKh0f1L_story.html

There is an interesting  new paper by Professor Margaret Colgate Love now available via SSRN. Here is the abstract:

The ABA Criminal Justice Standards have been recognized by the Supreme Court as one of the most important sources for determining lawyer competence in Sixth Amendment right to counsel cases.  Because the constitutional test is whether defense counsel’s performance was “reasonable” under “prevailing professional norms,” it is necessarily an evolving one.  Padilla v. Kentucky underscores the defense bar’s stake in participating in the ABA standard-setting process to guide the development of their obligations in plea negotiations. In addition, to the extent the courts give the ABA Standards credence in judging ineffective assistance claims, they can be powerful catalysts for changing the behavior of other actors in the plea process, as well as system norms.  The Standards can also be leveraged to help the defense bar gain access to the additional resources necessary to comply with the constitutional obligations of defense lawyers post-Padilla.

Two developments give this problem particular urgency: One is the proliferation of status-generated “collateral” penalties affecting every activity of daily life, penalties that are frequently more severe than any sentence potentially imposed by the court.  The other is the broad applicability of these collateral penalties to misdemeanants and other minor offenders who in the past would have been spared the reduced legal status and stigma reserved for convicted felons.

Part I of this Article analyzes the Supreme Court’s treatment of the ABA Standards in Sixth Amendment cases, and Part II discusses the manner in which the Standards are developed and approved as ABA policy.  Part III describes the provisions of the Standards that govern plea negotiations, and proposes their expansion in light of the new mandate given defense lawyers by Padilla.  It concludes by urging greater defender participation in the Standards process to shape how the Sixth Amendment standard evolves, and to maximize Padilla’s systemic effect.

I first blogged about my colleague, Judge Lloyd Zimmerman, who performed a marriage ceremony via telephone due to the dire circumstances of the couple:  https://blog.amjudges.org/?p=203

Since Judge Zimmerman’s article was published in the New York Times, he has now met the bride in person.  The article can be found here: http://www.startribune.com/local/minneapolis/132503453.html

 How does one person stop the rumor and gossip mill?  There are courthouses where nothing is said that isn’t around the courthouse within five minutes. Some of it is true but a lot of it is just made up stuff with people speculating about things that turn out not to be true or are gross exaggerations of truth. Yet there are other courthouses with great communication. Size of the courthouse makes some difference but does not fully explain the phenomena. There are no simple answers but ignoring the phenomena isn’t ever a successful strategy.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         

Any courageous individual can begin eliminating rumors by refusing to pass them along and by not silently watching as they spread their poison. Find respectful ways of holding crucial conversations with anyone at any point in the rumor flow. Here are three steps (I wish I could say they were easy, but they are effective!) that will help in your rumor-fighting efforts:

·         Step #1:  When someone passes along a rumor to you, don’t merely refuse to pass it on. Respectfully and directly share with the person (a) your intention to not let this information go any further and (b) the reasons you believe passing along this kind of information is hurtful. The better you help others see the negative consequences of their actions, the more likely they are to limit this behavior in the future.

·         Step #2:  Identify those who might have influence with the people spreading rumors and engage them in a similar crucial conversation. For example, you may be aware of a half-dozen people who seem to be the information nexus in your office. If you have a strong enough relationship with one or two of them, approach them directly. If not, you may have some influence with someone else who has influence with them.  Engage this person and see if he or she agrees on the merits of approaching these individuals.

·         Step #3:  If you have information that could discredit a rumor, share it.  Rumors, like mushrooms, require darkness to grow.  Pull groups together and shed light on the topic to clear the air.  Help others see why you’ve concluded there are inaccurate rumors floating around. Then, share the information you believe to be more credible.  Be sure to make it safe so that you can engage people in dialogue—not monologue—in these sessions.

Years ago I worked with a leader who, during times of stress and change, held “Rumor of the Week” meetings.  The purpose was to replace rumors with accurate information.  When he couldn’t answer a question for reasons of confidentiality or because decisions had not yet been made, he would acknowledge that information wasn’t available and commit to share the information as soon as possible.  His forthrightness and unfailing honesty made these sessions a much more highly valued source of information and increased his influence within the organization. The rumor mill still ran, but with far less efficiency.

Excerpts from Crucial Confrontations by Joseph Grenny

Since you can do a lot on the Internet it shouldn’t come as a surprise that someone has concluded there is a role (and profit to be made) on an Internet based arbitration service.

Read the Latest ZipCourt Press Release

 ZipCourt opened its doors as an online dispute resolution platform for the resolution of disputes of any type.  Prior to ZipCourt, disputes were often resolved in the way they had been in the 17th Century: through courts, lawyers, paper, witnesses and hearings. At one time, traditional arbitration was marginally faster and cheaper but then became as expensive and time consuming as litigation.  The dispute resolution process—whether in the courts or in arbitration—was inherently disruptive to business and people’s lives.

 Instead, ZipCourt provides an online dispute resolution process that fits with the way that business is being conducted and the way people live their lives in the world today.  At ZipCourt, your dispute is quickly and fairly submitted to a neutral party who considers the evidence, and the parties’ arguments, and comes to a reasonable decision quickly and economically. ZipCourt eliminates the most disruptive and expensive aspects of court and traditional arbitration proceedings.  ZipCourt has a clean and elegant design and was developed in Palo Alto with significant input from Stanford Law School students.  The Dean of Stanford Law School sits on the Advisory Board.  ZipCourt is not for every dispute, but if you want an objective and enforceable decision from an independent neutral third party and appreciate paying lower outside counsel fees, then ZipCourt is the answer. The only answer. Check out the ZipCourt website for more information www.ZipCourt.com.                                                                                                                                                                                                                                                                                                                                                                                       

Whether or not this particular firm or strategy succeeds will only be determined by time. It does however raise questions that are legitimate for court leaders to consider. Do we give enough attention to lower level civil cases and provide an economically sound method of resolving those disputes?  Is it so outlandish that courts might agree to provide a similar method of dispute resolution if the parties mutually requested it?