In this article, … [w]e argued that incompetence … not only causes poor performance but also the inability to recognize that one’s performance is poor. Indeed, across the four studies, participants in the bottom quartile not only overestimated themselves, but thought they were above-average…. In a phrase, Thomas Gray was right: Ignorance is bliss—at least when it comes to assessments of one’s own ability.

….

In sum, we present this article as an exploration into why people tend to hold overly optimistic and miscalibrated views about themselves. We propose that those with limited knowledge in a domain suffer a dual burden: Not only do they reach mistaken conclusions and make regrettable errors, but their incompetence robs them of the ability to realize it.

Justin Kruger and David Dunning, Unskilled and Unaware of It: How Difficulties in Recognizing One’s Own Incompetence Lead to Inflated Self-Assessments, 77 Journal of Personality and Social Psychology, 1121-1134, at 1130-31, 1132 (1999)

Phil Schatz was quoted extensively in the May 2010 issue of Inside Counsel magazine concerning best practices for the prevention of workplace retaliation claims. The full article is available here. The relevant sections follow:

Retaliation Reviews

To protect themselves against harassment liability, companies need to offer ways to complain outside of the immediate power ladder, says Philip Schatz, a partner at Wrobel and Schatz.

“The main problem JetBlue had was that its avenues of complaint were not really out of the management chain,” he says. “You had a small branch that was somewhat isolated, and everybody was interrelated.”

Human resources often takes on this role and should have autonomy to investigate claims without interference from other parts of the company, he says. Creating a hotline is another way to let employees safely report harassment.

Additionally, Schatz says corporations need policies restricting adverse employment actions against employees who have recently complained. Courts may assume retaliation unless the company conducted a thorough, objective review by someone uninvolved in the relevant area of the business.

“Make sure everything is documented and [conduct] a review by somebody who doesn’t have a dog in the fight,” he says.

Finally, companies must enforce rules across the board. In Gorzynski, supervisors applied rules differently for favored employees.

“The fact that younger employees were not disciplined for violating numerous policies was considered prima facie evidence of discrimination,” Schatz says. “There were a lot of unfortunate mistakes made here.

——————

Lost in the Branches

You might assume that a big, well-established company would be less likely than a smaller company to get in trouble for the relatively straightforward problems that arose in Gorzynski v. JetBlue.

That’s not necessarily the case, says Wrobel and Schatz Partner Philip Schatz. Easily preventable problems can arise when there is not enough management of offsite corporate divisions or offices.

“[JetBlue] is a big company, but it has a lot of branches,” he says. “This kind of problem can often happen in a bigger company more easily than a smaller one because there are so many moving parts.”

]]> http://www.wrobelschatz.com/2010/06/08/phil-schatz-quoted-in-inside-counsel-on-preventing-workplace-retaliation-claims/feed/ 0 http://www.wrobelschatz.com/2010/06/08/phil-schatz-profiles-justice-ruth-bader-ginsburg-in-the-federal-lawyer/ http://www.wrobelschatz.com/2010/06/08/phil-schatz-profiles-justice-ruth-bader-ginsburg-in-the-federal-lawyer/#comments Tue, 08 Jun 2010 15:53:57 +0000 admin http://www.wrobelschatz.com/?p=704

Phil Schatz was asked to profile the Honorable Ruth Bader Ginsburg, Associate Justice of the Supreme Court, for the May issue of The Federal Lawyer. The profile is available here.

The Hon. Harold R. Medina Sr., from Life Magazine

“[T]he qualities that are most valuable in any profession are the ones which cannot be bought at any price; and they are plain ordinary guts and loyalty. We have heard so much loose talk about loyalty in the past few years [late 1940s/early 1950s] that the ordinary garden variety seems to have been forgotten. I mean that loyalty to one’s college, to one’s friends, to one’s family, to one’s religion; the kind that builds from teh ground up and makes loyalty to one’s country inevitable and adamantine. … [Success at the bar and in life depends] upon a combination of unswerving, unselfish loyalty on the one hand and that sturdy tenacity and doggedness which everyone recognizes in that colloquial expression ‘guts.’”

Judge Medina Speaks (Matthew Bender & Co. 1954) (M. Virtue, ed.) at 168. Judge Medina graduated Columbia Law School in 1912. He was appointed to the United States District Court for the Southern District of New York in 1947, and to the United States Court of Appeals for the Second Circuit (succeeding Learned Hand) in 1953. He served until 1980 — at 92, the oldest member of the federal bench. He died in 1990 at the age of 102.

“Human beings live in the realm of meanings. We do not experience pure circumstances; we always experience circumstances in their significance for men. Even at its source our experience is qualified by our human purposes. …. [N]o human being can escape meanings. We experience reality always through the meaning we give it; not in itself, but as something interpreted. It will be natural to suppose, therefore, that this meaning is always more or less unfinished, incomplete; and even that it is never altogether right. The realm of meanings is the realm of mistakes.”

Alfred Adler, What Life Should Mean to You (Porter, Ed., Grosset & Dunlap 1931) at 1 (emphasis added).

A scrupulous writer, in every sentence that he writes, will ask himself at least four questions, thus: What am I trying to say? What words will express it? What image or idiom will make it clearer? Is this image fresh enough to have an effect? And he will probably ask himself two more: Could I put it more shortly? Have I said anything that is avoidably ugly?

George Orwell, Politics and the English Language, from The Orwell Reader 362.

“Formalism in the realm of legal reason places exclusive emphasis on the structural necessities of justice without asking the question of the adequacy of the legal form to the human reality which it is supposed to shape. The tragic alienation between law and life which is a subject of complaint in all periods is not caused by bad will on the part of those who make and enforce the law; it is a consequence of the separation of form from emotional participation. Legalism in the sense of formalism can become, like certain types of logic, a kind of play with pure forms, consistent in itself, detached from life.”

Paul Tillich, 1 Systematic Theology 90 (Chicago U. Press 1951).

David Slansky, the son of a math professor and himself a former math major and actuary, explains that the money you have already contributed to the pot is of no consequence: “In truth, it is no longer yours. The moment you place your $1 ante in the pot, it belongs to the pot, not to you, and eventually to the winner of the hand.” It is a common mistake for players to keep betting in the belief that they are already committed. In truth, that is just a way to throw good money after bad…. As Slansky points out, “[I]t is absolutely irrelevant whether you put the money in there or someone else did. It is the total amount, no part of which belongs to you any longer, that should determine how you play your hand.” Anthony Holden puts it more succinctly. “It is essential,” he says, ” to remember that money you have already paid into the pot is no longer yours; to defend it with more, in defiance of the odds, is an act of supreme folly.”

Steven Lubet, Lawyer’s Poker: 52 Lessons that Lawyers Can Learn From Card Players (Oxford U. Press 2006) at 64.

[E]very good legal argument is cast in the form of a syllogism.

***

Common wisdom has it that legal reasoning proceeds by analogy. this maxim is true in an important way, but it is nevertheless a misleading way to look at legal argument, and is probably responsible for many a poorly crafted and confusing argument.

***

The analogies between the case at hand and the cases cited as precedent serve only the secondary function of supporting the premises of th[e] syllogism. thus, the analogy is not the argument; the syllogism is the argument.

James A. Gardner, Legal Argument: The Structure and Lanugage of Effective Advocacy (2d ed. 2007) §§ 1.4-1.5 (emphasis in original).

[W] hen we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in light of our whole experience and not merely in that of what was said a hundred years ago.

Missouri v. Holland, 252 U.S. 416, 433 (1920).