Tuesday, February 21, 2012

First Kill All the Lawyers

In a rare moment, my sister and I went together to visit my Mom. She was in bed and her message to us was: “Leave me alone!” We were excited about taking her out for a drive, but there’s no arguing with the needs of a 90-year old. Same as the three-month old whose feeding needs will not align with your adult schedule. In both cases, the demands of the body trump your announced plans. End of discussion.

So my sister and I decided to visit our other friends in the home and instead of beginning around the piano, just sat in a room catching up on the gossip inevitable in any community. Turns out that five beloved and highly qualified nurses had been fired because they forgot to fill out some paperwork. The residents had a meeting with administration to protest and discovered that the admin. only caught the mistake some five months later. “Seems like you should fire yourself!” said one of the residents to the supervisor and the response was, “Yes, it was unfortunate that I missed it. But we all make mistakes.”  Of course, the difference was that the nurses didn’t get to say the same thing. They weren’t allowed to apologize for their mistake or even explain it in more depth. They simply got fired.

Hearing this story called up my own experience where a boss and I both raised our voices in public and in a letter written after the incident, he said that his raised voice was “unfortunate” and mine was “unacceptable.” And here is how power works in a nutshell. Those with it get to apologize and ask for understanding of human error. Those without it are reprimanded or dismissed.

It was also revealing that in pressing the admin. for more details about the nurse’s mistakes, the door to conversation was slammed under the “law of confidentiality.” Exactly the same at another recent incident in my community! I understand that this can be a protective device for the reputation of someone who really has transgressed against the community, but in these cases, it seemed clear that it was being used as a smokescreen to hide administration’s accountability for flawed decision-making.

When you have two (and more, as the stories pour in from colleagues in other schools) parallel incidents with almost identical plots and consequences, you begin to stand up and pay attention. Something larger is going on here and it essentially boils down to our contemporary culture of litigation. I both imagine and know that administrators are being advised by lawyers from outside their community and because the buck stops with them, feel pressure to capitulate to the fear of litigation. In this climate, there is no wiggle room for circumstance, past performance, open discussion, honest admittance of an error with avowed intention to learn from mistakes and do better next time. Simply the cold guillotine of law severing beloved community members without an ounce of fellow feeling, understanding or compassion. Except for the compassion administrators feel for each other as they recognize the difficulty of their job and the opportunity for them to plead for understanding as they make mistake after mistake.

The first rule of Brain Science is that Fear is the lowest level of brain functioning. Whether in the heat of the moment with a car hurtling toward you or in the constant low-grade atmosphere of fear of shame, humiliation or litigation, the fearful brain simply cannot access the areas that allow for both higher-level thinking skills and some sense of empathy. Decisions made based on imagined fears of consequences (will someone sue us?), no matter how real those fears may seem, not only signals the end of common sense, but also cripples communities and cultures. This is not a good thing.

All of this is clearly articulated in what I consider one of the most important books of the 21st century—Life Without Lawyers by Phillip K. Howard. This was a sequel of sorts to an earlier book titled The Death of Common Sense, a better title to sum up the message (though not as attractive in selling books!). Mr. Howard is a lawyer who gives both alarming examples of the law working against our better selves and inspiring examples of how law can protect us in the way it was intended to without killing off our capacity for common sense and ability to create and sustain ethical communities. 

Of course, Mr. Howard is not really advocating, as Shakespeare did, “first kill all the lawyers.” Though we can view law as a sign of our failures as neighbors (law is, after all, an explicit last resort when we fail to achieve an implicit ethical co-existence), we know that if we put two or more people in a room together for more than five minutes, conflicts will arise that grow too large to be solved by the people themselves. We need structures and guidelines to help contain and resolve them. The movie A Separation is a perfect example of such a conflict where at any one moment, each of four people at odds with the others seem right. Instead of a jury (the movie takes place in Iran), there is one person mediating these conversations who vacillates between “this is what the law says—end of story” and keeping the door open for more facts to arise and points of view to be heard. In the end, the truth is revealed and the complexity of the situation clarified. Along with some beautiful moments in which compassion still has its voice in the midst of bitter opposition, anger, blame and guilt.

Take a moment to read Mr. Howard’s book. He gives many practical and helpful examples of how to limit the dirty-bathwater-powers of litigation without throwing out the baby. But as the book itself remarks, law can only contain human failings, not remedy them. For that we need an alert, intelligent, feeling community of people who can still use their common sense and have real conversations without invoking the cliché of “transparency” or hiding under the cloak of “confidentiality.” We need to recognize these symptoms of our cultural sickness, support administrators in their difficult positions while insisting that they lean toward protecting their community members. 

Meanwhile, if you have any leads, I know some good nurses and teachers out looking for a job.

PS Though I know I got your attention, I felt some remorse about such a strong title and was about to change it when I received an e-mail from someone hosting a Conference I'll be teaching at. In my 30 years of giving workshops around the country and around the world, the standard protocol has always been to be met at the airport by your host. This host wrote: "We have liability issues around picking people up at the airport. You'll have to take the bus." I'm sticking with my title!!

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