(A Strong Organizational Culture Can Overcome a Leader’s Occasional Boneheaded Moves)

Carl should have been an employment lawyer’s dream.

President and CEO of an electronics company that had grown to nearly 1,500 employees, Carl occasionally used some unorthodox approaches in employee relations.

The company received notice of a harassment claim from a former saleswoman, Trisha, who alleged that “the President and CEO of the company harassed me with repeated questions, comments, and statements about my sexual orientation and practices with my female partner. In addition, he touched me in unwelcomed and unwanted ways, including striking me with his fist.”

I asked Carl about the allegations. “Surely they’re made up, right?”

“Nope,” Carl said, “They’re essentially true.”

Uh oh!

I figured we would be in for a long and expensive haul in the legal system. However, it didn’t work out that way. The claim soon went away. No money changed hands. Trisha dropped it.

It turned out that Trisha wasn’t really upset with Carl for this behavior. The two had carried on a running discussion/debate about heterosexual versus homosexual sex. Workplace appropriate? Heck no! But it was something they did. In fact, Trisha’s female partner had been introduced to her by Carl.

What about the physical abuse? On one occasion at work, while joking around, Carl punched Trisha in the arm. Trisha, a former college athlete, responded by punching Carl in the stomach, causing him to double over, knees sinking to the floor. By all accounts, Trisha felt she had taken appropriate remedial action. Indeed, coworkers praised her self-help efforts.

For his part, Carl bore her no grudge. After his breath returned, he said, “Nice punch.”

So why did Trisha bring this claim? It turns out she’d recently left the company after receiving a lucrative offer from a competitor. Carl had sent her a letter reminding her of the noncompete agreement she had signed and expressed his willingness to sue her if she violated it. Adopting the stance that the best defense is a good offense, Trisha responded with the harassment claim, which she hoped would give her leverage in narrowing the scope of her postemployment competitive restrictions.

Carl wouldn’t budge, however. Trisha needed to comply with the noncompete agreement as written or the company would sue, regardless of any harassment claim she might assert. Once Trisha realized Carl was serious, she asked for her job back. Carl agreed, and that’s the last I heard about this particular employee.

Case closed.


First of all, the moral of this story is not to joke with your employees about sex, much less punch them.

This moral has to do with my overall experience with Carl’s company. Given the company’s large size, presence in some highly litigious states, and Carl’s, shall we say, unorthodox leadership style, you might think I landed in lawyer billable-hour heaven. Yet I never once went to court on the company’s behalf. Employees didn’t sue, even after being fired. I also noticed that the company had grown substantially over the years and had done extraordinarily well financially, outperforming its competitors.

What was the reason for this combination of low litigiousness and high profitability? As Carl explained, shortly after taking over as CEO, he implemented a practice by which every new hire would be scrutinized closely for long-term fit. Supervisors were trained to evaluate new employees on their ability to meet the company’s high performance/high accountability expectations. If there were signs of a potential nonfit, supervisors were required to work more closely with the new employee with a view to managing that person up or out at the earliest opportunity.

After this initial review period, which was not expected to be longer than two months, if an employee subsequently had problems meeting expectations, scrutiny would fall first on the supervisor. Were there warning signs during the initial review period that the supervisor overlooked or chose to ignore? If so, the question became whether that supervisor should still be supervising.

Carl explained:

“We fired lots of people over the years, but we were always clear to everyone that high performance was nonnegotiable. Most employee terminations occurred early in their employment. Usually they weren’t surprised and didn’t feel it was unfair.

“For employees who had been here a while but whose performance had dropped, we’d give them a chance to correct things but didn’t wait forever. It was strictly business; nothing personal. Also, we didn’t tolerate managers who let employee performance slide. It was, ‘Fix the problem one way or the other.’”

One might think that such an environment created low morale. Yet the opposite was true. Carl had given employees a stake in the company’s profits, which helped. However, perhaps of even greater effect was the contagious attitude of employees who saw themselves as high performers in a high-performance environment. Carl’s company preached and practiced the philosophy that accountability for high performance starts with management to create an environment where employees can excel. This included proactively pruning from the workforce employees and managers who didn’t fit the culture.

The performance-management lesson is this: Set the expectations bar early and clearly. Make sure all managers and supervisors consistently hew to it in their dealings with their employees. Accountability starts with the boss.

(Beware the Law of Employee Speculation)

In the mid-1980s, a company in the energy industry hired me to conduct a workplace investigation and report my findings to its board of directors. As a young lawyer, this was a first for me. I was excited.

Karen, an engineering assistant, had complained to human resources that she was the victim of gender-based pay discrimination and that her boss, George, the head of the engineering department, had retaliated against her.

During my investigation, I uncovered evidence validating Karen’s claims. She had been working for the past two years as an engineering assistant earning $30,000 per year (in 1985 dollars). Yet she performed work identical to that of four male employees, each of whom had the title engineer and earned $45,000 per annum.

George, who was known behind his back as Mr. Old School, explained during our interview that the pay disparity was “entirely justified.” “Look,” he said, “we’re paying her more than what she got at her previous job. Besides, those guys have families to support.”

(“Old School” should have been “Old, Old School”)

Karen alleged that before going to human resources, she had raised the pay issue with George, but he had not responded well. “George told me that if I knew what was good for me, I would keep my mouth shut. Two days after this conversation, he told me he had changed his mind about approving me for a professional certification program. He said he only did such things for ‘team players.’”

In my interview, George denied retaliating against Karen. However, his denial didn’t help his credibility. “That little lady should be happy to have the job she’s got,” he said.

(Let’s make that “Old, Old, Old School”)

At a meeting with the board of directors to discuss my findings, a consensus quickly emerged on the path forward. Step 1: Fire George. In addition to his treatment of Karen, other information surfaced about George’s managerial practices, bringing to mind a 1950s science fiction movie starring James Arness of later Gunsmoke fame. Arness plays a creature from outer space who crash lands in the North Pole and becomes entombed in a block of ice until discovered centuries later. After the ice melts . . .

Step 2 was settling Karen’s claim. In exchange for a full release of claims, I negotiated the following deal: (a) The company “promoted” her to the engineering position she’d been doing for two years, (b) it increased her salary to the same rate paid her male coworkers, and (c) it provided a lump-sum payment of $15,000 in recognition of past lost income.

As I explained to the board of directors, under applicable law, $15,000 represented a mere one-fourth of the double-damages lost-pay award Karen would likely receive if she sued, not to mention the other economic damages she’d likely receive. After hearing this, a board member said, “Let’s get this done! Heck, I’ll write the check myself!”

Under the circumstances, I had negotiated a terrific deal for my client and basked in the glow. “Thump, thump, thump,” went my ego. Unfortunately, however, a large dose of humility awaited me.

As is typical in settlement agreements, the one I drafted included a provision barring Karen from disclosing terms of the deal. Other employees were aware of her claim and that it had been resolved but didn’t know the details.

To the best of my knowledge, Karen kept her end of the bargain. However, soon after the deal was cut, she arrived at work in a brand new, fully loaded Cadillac. On a chilly winter morning, she stepped out of her new car in a new coat that extended from neck to ankles and for which many small furry creatures had probably given up their lives.

Coworkers rushed up to Karen. “What did the company give you?!” they cried. “Tell us!”

Karen dutifully replied, “I’m sorry but the company’s lawyer made me sign a paper that says I can’t tell you.”

Word of Karen’s “deal” spread like wildfire.

Over the next two years, I had the opportunity to learn what kind of speculation had gone on concerning how much money Karen supposedly received. The rumor mill had a high range—$600,000. (Mind you, we’re talking 1985 dollars.) It had a low range—a scant $300,000. That’s right, the lowest any employee thought Karen received to settle her claims was 20 times the actual amount.

How did I learn this information? Because over those next two years, I had to wade through nearly 40 new claims of employment discrimination filed by Karen’s coworkers.


When employees don’t know, they speculate. And for employers, their speculation is always worse than reality. I call this the Law of Employee Speculation, which arises whenever management fails to share information employees consider important. They fill in the blank with speculation. If management withholds good news, employees will assume it’s negative or at best neutral. If the news would be neutral, it will be assumed bad. If bad, it will be assumed catastrophic.

Setting aside the legal system for a moment, every management or organizational guru I’ve studied has criticized American management for doing a lousy job at sharing information with employees. Why is the problem so prevalent? Most managers intuitively tend to hold their cards close to the chest out of fear that too much employee knowledge could be dangerous. Yet this fear becomes self-fulfilling. Employees not only fill in the blank with something worse than what the manager is fearful to disclose, their trust and respect in management erodes.

Accordingly, when it comes to information that may be relevant to an employee’s job status or sense of well-being or belonging in the organization, the question should not be “Why share?” but “Why not share?” The presumption should be to share, not the other way around. This rule applies not only when the news is good but when it’s bad, sometimes especially when it’s bad.

Are there exceptions? Can the presumption be rebutted? Sure. If you work for Coca-Cola, I wouldn’t recommend you post the secret recipe on the Internet. Indeed, my subsequent settlement agreements often still included confidentiality provisions. However, that didn’t prevent me from occasionally wishing, such as in Karen’s case, that company management had “accidentally” left a copy of the agreement in the employee break room. A half hour’s availability would have sufficed.

(A Documentation Tool That Actually Works)

Perhaps the most frustrating subject I’ve taught managers is documentation. Why? Because for the longest time, no one ever practiced what I preached.

“Texas Wes” is a good example. COO of a large oil and gas company, Wes attended one of my management training programs a number of years ago. A few months later, he called me to review a personnel issue: He intended to fire one of his employees based on unsatisfactory performance. Because the employee was turning 60 and had been with the company a long time, Wes had concerns about a potential age-discrimination claim. He wanted to make sure he had his ducks in a row.

“Jay-uh-thon,” Wes began in his Texas drawl, “you’ll be proud of me. I followed all of your teachin’s. I was direct and specific about performance problems and about the consequences if he didn’t fix them. No surprises here!”

“Great, Wes,” I replied, “I’m glad to hear it. Send me the documents. I’ll take a look and call you back with what no doubt will be a thumbs-up. Just send me the documents.”

There was silence on Wes’s end of the phone.

“Wes?” I said, “Are you still there?”

More silence.

“Wes? . . . Wes?”

Finally: “Aw hell, Jay-uh-thon. Ah hate to write! I don’t have time for that %#$@&*!”

Needless to say, without a scrap of supporting documentation, Wes didn’t get my thumbs-up for a performance-based termination of a long-time employee turning 60.

Experiences like this forced me back to the drawing board. My wonderful documentation tools with all their well-crafted bells and whistles weren’t getting the job done. How come? Because they weren’t user friendly.

I thought about what might be a simple and easy enough tool that a busy manager would use and would still add value. And I thought. And thought.

Finally, it struck me: I could teach managers how to write opposing counsel confirmation letters. While you scratch your head, let me explain.

I hope this doesn’t shock you too much, but I learned early in my law career that not all lawyers can be trusted. (I’ll give you a moment to collect yourself.) For example, I’d have a telephone conversation with opposing counsel, reach an understanding about what would happen next, only to discover later that the other attorney didn’t deliver when the time came. When confronted, however, opposing counsel invariably denied our understanding, often counterclaiming that I had agreed to something I hadn’t.

To combat this problem, I developed a practice of sending short, to-the-point confirming letters after each conversation of significance. The letter would begin, “Dear Lawyer Representing the Forces of Evil.” (Actually I wasn’t quite that snarky. Not quite.)

The body of the letter would begin with something like, “This letter summarizes our conversation this morning regarding . . .” I would then summarize the key points, particularly the things that had been agreed to going forward. The letter would close with a statement like, “If I haven’t summarized our conversation accurately, please let me know immediately.”

This practice became a game changer for me in dealing with opposing attorneys. So I thought it might be a game changer for managers as well.

And sure enough, it has been.


Calling the tool the Opposing Counsel Confirmation Letter probably won’t work for you. Instead, I suggest calling it the Same Day Summary. The Same Day Summary follows a conversation you’ve had with an employee that you consider significant. Here are the elements:

image The document summarizes only the key points actually spoken by you or the employee. You’re not taking meeting minutes.

image It’s prepared and given to the employee within a day (24 hours) of the discussion. Given how quickly memories fade, the sooner the better.

image It’s no more than a page. Most Same Day Summaries are shorter than a page, often just a brief paragraph with a few bullet points.

image Instead of requiring a signature, confirmation, or agreement with the substance of the discussion, the Same Day Summary asks only that you be promptly informed if the recipient disagrees with the accuracy of the summary.

image In most instances, email works fine. It gives you date, time, and tracking information and can easily be stored.

image No lengthy treatises. No creative writing. No racking your memory. No arguments or debates. And no having to track down your employee for a response.

This tool is so easy to use yet so effective that a great many managers (not to mention numerous human resources professionals) have made it part of their communications toolkit. In fact, a certain executive from the Lone Star State now not only uses Same Day Summaries himself, but if you’re a manager who reports to him, you’d best be using them with your employees as well. Otherwise, you’re in for a real talk’n’ to!


Shortly after I began teaching this tool, I flew to Fresno, California, to speak to a group of managers and human resources professionals. During the Q&A afterward, a veteran of labor and employment law warfare in the Golden State posed a challenge: “Mr. Janove, doesn’t your Same Day Summary create excessive risks for employers, at least in our jurisdiction, the People’s Republic of California?”

She elaborated: “If we need to rely on a Same Day Summary to show that an employee received progressive discipline, won’t the employee be able to say he never got it? And we’ll be in trouble because we can’t prove otherwise since there’s no signature requirement.”

I replied, “You’re absolutely right. The Same Day Summary does create that risk. And it must sound kind of nutty hearing it preached by a lawyer who’s supposed to keep employers out of court.

“However, your risk analysis needs to go deeper. What happens when you require managers to obtain signatures on documents describing employee performance, attendance, or behavior issues? In my experience, usually it doesn’t happen, or you wish it hadn’t. In my view, the risk that your managers won’t write such documents properly or timely is even greater.”

I took another step up on the soapbox. “In addition,” I said, “requiring signatures tends to make supervisor-employee relations adversarial. Sometimes employees refuse to sign, which makes the document an even bigger pain in the neck, or they write something inflammatory in the margin such as, ‘As an older worker, I’m being victimized,’ which of course causes a new set of troubles. That is why I often find documentation of employee problems less helpful to the employer than to the employee suing the employer.”

Building up a head of steam, I took another step: “With Same Day Summaries, you avoid these problems. You don’t have to wrestle with an employee over his signature. You can explain that the document isn’t meant to punish but to give the employee the best chance to succeed by keeping everyone on the same page. It creates a ‘no surprises’ relationship. How many employees will object to that?”

Teetering a bit at the height, I took another step: “If you make Same Day Summaries a regular practice, not just for problems but for discussions about opportunities, policy changes, new game plans, successes, and positive employee behavior, they won’t associate them with trouble or speculate about the motives that underlie them. Plus, if you incorporate them in your document-retention system, you can reduce the ‘I never got this document’ risk almost to nil.”

I added: “I’m not saying you would never require a signature from an employee, such as with a final disciplinary warning. But I’ll make this prediction: If you make the Same Day Summary a regular practice, chances are you’ll never have to give someone a final disciplinary warning. Why? Because problematic employee behavior will already have been managed up or managed out. And without your needing an employment lawyer to defend you.”

With that, I leaped from my soapbox, headed to the door, and flew home from Fresno with neither feather nor tar.

(Remote Management Presents Challenges)

Cassandra managed a California resort property. She reported to the regional vice president, Joan, who worked at headquarters in New York.

Cassandra felt that the lobby at her property was dingy, not befitting their clientele. She called Joan.

“I’d like to get the lobby remodeled,” Cassandra said. “Would you approve it?”

Joan responded, “Sorry, there isn’t money in the budget right now, and revenue is a bit slow, so I’m afraid the answer’s no.”

After a pause, Joan added with a chuckle, “Of course, we could get lucky. An accident could happen. Then the insurance company would have to pay for it. Ha! Ha!”

About two months later, a hose at the property was left running overnight. It happened to be pointed toward the lobby. By early the next morning, eight inches of water engulfed the lobby.

Cassandra had closed up the property the prior night.

The insurance company paid for the damage and cost of remodeling. However, the insurer’s suspicions had been raised. It sent one of its investigators to visit the site. It didn’t take long to find evidence incriminating Cassandra.

When confronted, she confessed to flooding the lobby. However, she invoked the so-called Nuremberg defense. She said, “It’s not my fault. I was only following my boss’s orders.”

When informed of Cassandra’s explanation, Joan was aghast. “I can’t believe she’s saying that! I was joking. That’s insane! No one in their right mind would have thought I was serious, that I would order an employee to commit a fraudulent, illegal act!”

The insurance company and her employer believed Joan. Nevertheless, her company had to repay all of the insurance proceeds plus interest, costs related to the investigation, and some attorneys’ fees. This made for an extremely expensive lobby remodeling job.

Not surprisingly, the company fired Cassandra. She responded by hiring an attorney who sent a written demand that she be reinstated with full back pay or be compensated with substantial economic damages “as a victim of wrongful discharge.”

The company’s response was short and to the point: “Walk away from us and we’ll walk away from you. Sue us, and we’ll sue you for every dollar this disaster cost us.”

Undeterred, Cassandra proceeded. After protracted litigation, the court dismissed her claims against the company. On the company’s countersuit against her, the court awarded full damages.

Following Cassandra’s unsuccessful appeal, the judgment against her exceeded $100,000. Having already taken out a second mortgage and extended her credit cards to pay for litigation costs and her attorneys’ fees, Cassandra ended up in bankruptcy. She had lost her job, career, and savings. For her, the lobby remodeling job was very expensive indeed.


One moral of the story is that sometimes humor is no joking matter. When was the last time you said defensively, “I was only joking”? Or someone said that to you? This case illustrates the danger of misconstrued humor, especially when there’s a difference in authority level. People in subordinate positions often don’t ask a clarifying question from fear the boss will get annoyed and think they’re dense. The miscommunication risk goes up.

On another level, this story points out the challenges of remote management. With Joan in New York and Cassandra in California, the potential for miscommunication increased dramatically. There weren’t the quick check-ins or other ways people keep on the same page when they work near each other.

Without being in the presence of the person with whom you’re communicating, you can’t detect visual or auditory clues that your message is coming across in ways you don’t intend. The misunderstanding continues without awareness or opportunity to clarify.

The Same Day Summary tool described in “Texas Wes” is especially useful for managers who supervise others remotely. Following that telephone or other real-time conversation, send a quick email summary of key points to the other person. In Joan’s case, a simple “As I mentioned, we’re not able to remodel the lobby at this time” would probably have sufficed.

Managers who manage remote employees have found Same Day Summaries to be highly useful. And to the best of my knowledge, none of them have had floods in their lobbies.

(Real-Time Feedback Beats Surprise Feedback)

There was a knock at my office door. I opened it and saw my law firm’s managing partner, William, standing with two other partners.

“Jathan,” he said, “the Associate Review Committee has finished your review and would like to discuss it with you. Is now a good time?”

With a lump in my throat and palms turning moist, I said, “Uh, sure. Come on in.”

My firm conducted annual performance reviews for associate attorneys. In December, a committee of three partners led by the managing partner would interview their fellow partners, soliciting performance feedback about the associates. After the interviews, the committee would compile the feedback and present it to each associate. The stakes were high. They included the associate’s bonus for the year, if any; his or her raise for the following year, if any; and the associate’s future in the firm—if any.

Even when the review was favorable, the experience was not much fun. It was like being told by your dentist, “Now that was an easy root canal.” Of course, when the review wasn’t good, the experience could be excruciating.

After shutting my office door, William and the other two partners pulled up chairs around my desk. “Your review is mixed,” William said. “Although several partners spoke quite highly of you, you did receive some criticism. In fact, one partner was so disappointed in the quality of your writing he recommends that you be required to take a remedial class on how to write.”

That comment stung me like a wasp. I began to turn pale. “Who said I need to take a remedial writing class?” I asked.

William arched an eyebrow at me suspiciously. “Why do you ask?”

“So that I can speak with him to get a better idea of what I need to do to correct my apparent deficiencies.” I tried to say this as humbly as possible, but the flush in my cheeks and quiver in my voice may have betrayed the anger I was trying to suppress.

William replied hesitantly, “I suppose sharing that information would be appropriate if used for constructive purposes. It’s Samuel.”

The rest of the meeting went by in a blur. Only one piece of information stuck. I needed to take a remedial writing class. Me—a practicing attorney, college honors graduate in English with a concentration in journalism, Phi Beta Kappa, columnist for a local newspaper, and someone who’s loved to write ever since first grade when my teacher, Mrs. Parker, told my parents, “Jay is a gifted writer.”

And I learn this wonderful confidence-building piece of information during my annual performance review. Aaargghh!

The next day, I walked into Samuel’s office. Steeling myself, I said as smoothly and evenly as I could, “The Associate Review Committee mentioned that you had concerns about the quality of my writing. I’m wondering if you could elaborate.”

Samuel frowned and began to fidget. “I assume you’re talking about that assignment I gave you several months ago,” he said. “I don’t remember it well. But I recall that your memo was hard to get through, and wasn’t that helpful.”

I attempted to elicit more details, but without success. Although I professed a desire for self-improvement and did my best to conceal my frustration, I seemed to make Samuel increasingly uncomfortable. Finally I said, “Thanks for the info. I’ll work on improving my writing skills,” and left his office.

However, I wasn’t ready to give up. I went to a senior associate who worked a lot with Samuel. “Chris,” I said, “can you show me an example of a memo that Samuel likes?”

Chris rummaged through a few files and produced a research memorandum. At a glance, I could see the difference between my writing and this memo. To me, the latter looked like a glorified outline: lots of headings and subheadings with not much text in between.

By contrast, my writing style had been influenced by writers like Marcel Proust and William Faulkner—authors who can go on for pages without a sentence ending. Samuel had a legitimate point. For legal writing at least, his preferred model probably beats the Proustian or Faulknerian one. (Perhaps that’s why they’re called legal “briefs.”)

A few weeks later, I again stepped into Samuel’s office. “I’ve been working hard on improving my writing,” I said, lifting the corners of my mouth to project a smile. “I’d like an opportunity to show you the progress I’ve made. Is there a project I can do for you?”

Samuel seemed pleased with my show of humility and smiled back. He thought for a moment and said, “I have a case with a statute of limitations question. Why don’t you research it and write up a memo for me?”

“Great,” I said.

After I completed the research and began the memo, I used the outline method from the example Chris showed me. Indeed, I laid it on thick. Practically a sentence didn’t go by without another category being started. I broke the memo down into so many subparts, I had to learn new outline symbols. You might say instead of writing the memo vertically down the page, I wrote it horizontally across the page.

After I handed the memo to Samuel, I began to worry a bit. I thought, “What if he thinks I’m being a smart aleck?” (Which, of course, would have been entirely untrue.)

No need to worry, however. Samuel loved the memo. In fact, from that point forward and lasting years later, even after I became a partner in the firm, Samuel was my number one source of work, giving me more projects to do than he gave any other attorney.

Talk about a turnaround.


If you were William, you might defend the performance review process and say something to me like, “You see, Jathan, your experience shows that our system worked. You received pertinent performance feedback, took the initiative, made the necessary corrections, and benefited from all that. A veritable success story.”

Don’t buy it. I didn’t go to Samuel as part of a self-improvement quest. I was mad! I wanted to show him he was wrong and Mrs. Parker was right. My bruised ego motivated me to go to the extraordinary lengths I had to go to overcome Samuel’s generalized and stale feedback and find out what I needed.

In my experience, employees receiving performance review criticism as I did are more likely to become discouraged or embittered. Relationships that might have been successful end badly—as my relationship with Samuel had ended temporarily and potentially permanently. After my first assignment, Samuel had ceased giving me work. He’d written me off for future assignments without telling me. It was through the slimmest of chances that we reconnected and a long-term mutually beneficial relationship unfolded.

What if after reading my first memo and being disappointed, Samuel had sat down with me while the problem was fresh in his mind? What if he’d shown me an example of a research memorandum that was written in a manner that met his needs? In December, the Associate Review Committee might have said this instead: “Samuel told us that last March he gave you an assignment but wasn’t happy with the writing. However, he said you subsequently corrected the issue, and he now has full confidence in your work.”

Better yet, why not start the clock even sooner? What if when giving me my first assignment, Samuel had discussed his expectations and showed me an example of something he liked? Had he done so, there most likely wouldn’t have been a problem in the first place.

In your experience, how many Samuel and Jathan relationships fail not because of an inherent lack of fit but because of a failure to communicate? If your experience is at all like mine, the answer is, “Far too many.”

For your reference, here’s my list of performance review don’ts and dos:

The Don’ts

image Rational lies. Too often managers rationalize or tell themselves “rational lies” that although honesty is the best policy, the performance review is an exception. It should never be.

image Gunnysack feedback. These managers save up feedback like farmers slowly filling a gunnysack with potatoes—only to drop them over the employee’s head at performance review time. Not exactly a bonding moment.

image Report card. Like school teachers at the end of the term, these managers give feedback looking entirely backward, underscoring their superiority and the employee’s inferiority.

image Creative writing. The performance review is not a time to exercise your writing skills (such as the manager who wrote, “Maybe you’re getting too old for this job.”)

image Disciplinary tool. “Needs improvement” is not the same as “Last-chance warning.” If you have a disciplinary problem, deal with it directly. Don’t use the performance review to tiptoe around it.

As Stephen R. Covey said, begin with the end in mind. Start by thinking of the outcome. What would you like to see in the future that the performance review can help make happen? Take a look in the rearview mirror, but keep your main focus on the road ahead.

The Dos

image Behavior that matters. Avoid the plethora of categories and subcategories. As with Star Profiles, zero in on what really matters and concentrate your feedback there.

image Process, not event. Here’s a simple rule: Create a surprise-free zone. A performance review should summarize prior feedback given in real-time.

image Participation of all managers. All managers should commit to using the performance review process to help their employees succeed. Otherwise they shouldn’t be managing.

image Two-way feedback. The discussion should be two-way—the manager gives and receives feedback. What can the manager and employee each do to help them succeed together? The Triple Two technique from “I’ll Do It with Anybody but Monique!” (see chapter 6) comes in handy here.

The performance review can be a useful performance management tool. Just avoid the don’ts and practice the dos.

COURSE CORRECTION OR CORRECTIVE ACTION? (When an Employee Falls Short of Expectations, Respond with Curiosity, Not Faultfinding)

The plaintiff’s lawyer sent a letter to my client claiming that it had wrongfully discharged his client, a former employee, and demanding $200,000 within 10 days; otherwise, he would file a lawsuit seeking a vastly greater sum.

After my client forwarded the letter to me, I called opposing counsel. I told him that if he held off filing the complaint, I’d investigate the claim and determine whether settlement discussions made sense at this stage. Based on my promise to get back to him within two weeks, he agreed to hold off suing.

While gathering the facts, it struck me that my client might have a great legal defense. I asked Sarah, a first-year associate attorney with whom I had not yet worked, to do the research. Sarah said, “I have a few assignments to complete. Will Thursday suffice?”

“Sure,” I said, thinking to myself, “I can then call opposing counsel on Friday, which is the last day within the two weeks.”

Preoccupied with other work, I didn’t notice that Thursday came and went without word from Sarah. On Friday morning, another client had an employee relations problem detonate at the workplace. While responding to the frantic emails and phone calls, I completely forgot about getting back to opposing counsel on the other matter. And I heard nothing from Sarah.

The weekend passed, and Monday morning I left on a business trip. After I checked into my hotel Monday evening, the thought struck me like a blow: “Oh #@$!%&! I forgot to call opposing counsel on Friday. I’d better call him first thing tomorrow morning so that he doesn’t file the complaint. I’d hate to have my client sued because I dropped the ball!”

This thought immediately led to another: “Oh #@$!%&! I never heard from Sarah! I don’t want to have that conversation with counsel until I know whether or not we have this defense. #@$!%&!”

I immediately emailed Sarah. “What’s the answer?” I demanded. “I’m past the date I promised to respond to plaintiff’s counsel. I’m afraid he’ll go ahead and file the complaint against our client—a very bad and embarrassing thing for our firm.”

Sarah responded shortly thereafter with an apology and promise she’d have an answer by morning.

After a fitful night’s sleep, I awoke Tuesday morning and sure enough, Sarah had emailed me her answer along with a research memorandum. According to Sarah, we had a great defense. Eureka! However, as I read her memorandum, I detected a potentially serious error in Sarah’s analysis. I thought, “If I call the attorney, assert the defense and am wrong, my credibility will be shot. But if I wait to call until I’ve figured out the answer, he may sue my client in the meantime.”

I decided to call the attorney, but instead of responding to his client’s claim, I apologized for the delay and promised I’d respond by Friday. Somewhat grudgingly, he said okay.

I then emailed Sarah my concerns about her conclusion and asked her to reexamine. Later that day, she emailed me. “I’m very sorry. I made a mistake. Under the facts of this case, our client does not have this defense.”

At that moment, steam started coming out of my ears. I thought, “First she misses the deadline. Then she gives me the wrong answer!” After cooling down a bit, I asked myself a question that has often stopped me from doing something really stupid, “As a coach, what would I advise me to do?”

Taking my advice, after I returned from my trip, I visited Sarah in her office. She was visibly nervous. I said, “Before discussing what happened, I’d like to share a couple of things with you.

“Over the years, two characteristics have distinguished associates I’ve valued highly from those with whom I’ve struggled. The first is timeliness. When associates own responsibility for deadlines, it enables me to do my job better. When they don’t, either the responsibility stays on my back, which slows me down and burdens me, or worse—we risk disaster.

“The second characteristic is that when associates think they’ve found the answer, they ask themselves, ‘What might I have missed?’ or ‘How might I be wrong?’ Every lawyer I know, myself included, has made the mistake of prematurely disabling his or her inner critic when they think they have the answer. They don’t take the next step of challenging their legal or factual assumptions as if they were their own opposing counsel.”

I said, “What are your thoughts, Sarah?”

She paused and said, “I clearly blew it on both points. I got really busy late last week and forgot the assignment. When I got your email on Monday evening, I panicked and immediately started researching. I worked late into the night.

“I was so happy when I thought I found the answer you were hoping for, I said to myself, ‘Given the good news, maybe he’ll forgive my lateness.’ There was no questioning inner voice at that point.”

Sarah added, “In fact, I think the two characteristics are connected. Missing the first one set me up to miss the second. Working late and in kind of panic mode made me more susceptible to mistakes.”

“I agree,” I said. “I see the connection too. However, the point is not to dwell on the past. It’s to change how we work in the future. Frankly, since you and I hadn’t worked together before, there’s no reason I couldn’t or shouldn’t have shared these points at the outset. In fact, I don’t want you to hesitate to tell me if there’s something I can do that will improve your effectiveness. After all, if you’re successful, I’m successful, and the client’s successful.”

Thereafter, Sarah and I continued to work well together and are friends to this day.


I can think of at least five morals to this story.

When employees fall short of expectations, we have a tendency to assign blame. We jump into corrective action mode. Yet a more nuanced and holistic approach involves becoming curious as opposed to judgmental. There’s a fundamental difference between asking, “What happened?” and “How come you screwed up?” Until an employee has demonstrated through repeated or egregious missteps that you have an individual problem, a better approach is to ask what collectively might be done differently going forward that would enable your expectations to be met.

Similar to my observations about Samuel in “Performance Review Follies,” it’s better to discuss performance expectations upfront as opposed to waiting until after the fact. After my experience with Sarah, I started to make it a practice whenever I worked with someone for the first time to share the key behavioral characteristics I value before they began their work. Results have validated this practice.

This story reminds us of the importance of the What/Why Ratio (“Managing Millennials Is the Pits!”). When I gave Sarah the assignment, I told her what I wanted but neglected to mention why. Had I taken an additional minute to share with her the game plan—why her answer on Thursday would be needed because Friday was the deadline to respond to opposing counsel—she’d have been less likely to forget. Among other benefits, knowing the “why” behind the “what” helps sync the task with one’s memory.

My assignment to Sarah is a good illustration of how one could use Same Day Summaries (“Texas Wes”). Taking only a few minutes, I could have sent Sarah a quick email following our conversation that covered the points of what she was going to do by when, and why. Better yet, to give her a greater sense of ownership, I could’ve asked Sarah to do the summary. Had either of us done one, I can virtually guarantee the problem wouldn’t have arisen in the first place.

When faced with a frustrating employee situation, a great way to settle yourself down and take a constructive approach to dealing with it is to ask yourself a question like I asked myself before confronting Sarah. Behavioral psychologists have coined a term, the Solomon Paradox, based on the story of Solomon, who was known as the wisest of kings when advising others yet whose own personal decisions proved utterly disastrous. When we’re on the hot seat, we tend to behave differently than how we’d advise someone we care deeply about in the same circumstances. We gather less information, identify fewer options, and are more rigid in our thinking. When personally dealing with a challenging situation, you don’t have to be an executive coach like me to ask yourself, “How would I advise someone I care about if they faced this situation?” Just as I did with Sarah, you’ll probably handle it a lot more effectively.

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