Category: News Feeds

Ed. note: This is the latest installment in a series of posts on motherhood in the legal profession, in partnership with our friends at MothersEsquire. Welcome DawnMarie White to our pages.

In the beginning of my role as a mom, I was lucky to have Fridays off work with my son. Occasionally, something that couldn’t wait would come up, and I’d find a back-up babysitter. Usually. One Thursday, a judge set an emergency hearing for the next day. Of course, all my babysitters were busy. A colleague, who is now my best friend and called “uncle” by my son, told me he and the paralegals would watch my then 8-month-old for the thirty-minute hearing. After much convincing that I wasn’t taking advantage of my colleague, I accepted his help. An hour and a half into this hearing, the court reporter kindly called his office and slipped me a note saying that my son was sleeping. When I returned two hours later than expected, I found my friend typing away at his computer with my son happily on his lap.

This may seem like a cute story, but it’s so much more. It encompasses all the best ways I’ve been supported as a mother in my career. My best friend and his paralegals stepped into a role outside of their normal jobs to help me. The judge and court reporter acknowledged me as a mother without diminishing my professional role, which allowed me to focus on my client and his child. No one suggested that I request a continuance. Instead, everyone in the courtroom that day was focused on my client’s child, not my childcare scramble. My motherhood did not overshadow my legal work. These acts not only showed that I am cared for in my community as a person, lawyer, and mother but also allowed me to keep my perspective. This perspective allows me to push aside the Mom Guilt and focus on helping my clients.

I’ve intentionally cultivated a support system that includes my husband solo parenting on a Saturday while I edit and rewrite a brief with a looming deadline, my family babysitting my sick child so I can depose a witness, and bosses that welcome my son (usually with copious amounts of candy) into the office to accommodate school snow days. While these care-taking tasks cannot be appreciated or applauded enough, the ways my community takes care of me are often less time-consuming and grand. But these acts have a deep impact and deserve just as much gratitude and applause.

Mom Guilt is the nemesis of every lawyer mom I know. It’s a monster that feeds on seeking perfection and distorts my perspective. My friends listen as I lament motherhood “failures” such as missing a PTO meeting. They tell me that my choices to model a strong work ethic (which I learned from watching my own working mom), demonstrate how to prioritize tasks, and teach flexible responsibility are absolutely the right decisions. They remind me that my son understands the importance of standing up and advocating for others because he sees me doing it. My friends reiterate that my son sees me showing up for him just as fiercely as I do for my clients — even if I’m redacting discovery documents while he’s in a yoga class. My son knows that when there’s a deadline at work, he and my husband may be picking up some of my chores at home so I can focus on work. One day, I’ll do the same for him when he has a big calculus test and needs to study. That’s what family does for one another. Remembering that is hard when you’re the mom in the thick of it. Someone helping you keep your perspective is invaluable.

Society often overwhelms us with messages about where our fulfillment should come from. Hands down, the most supportive thing anyone has ever done for me as a lawyer mom is acknowledge that fulfillment does not have to be found in a career OR motherhood. It can be, and is for me, both. We hear it all the time at all the conferences:  Work-Life Balance. It may be cliché now, but it is true. I am not a good mom, attorney, wife, friend, sister, or anything else when I’m trying to be everything to everyone. I am at my best when I allow my community to help me, and I keep this balance of finding fulfillment in all my roles by doing the best I can in each area of my life. Sometimes, I’m killing it as a mom. Sometimes, I’m killing it as a lawyer, but my child is overdosing on screen time. As a Type-A, perfection-seeking lawyer mom, that’s hard to accept. But with a supportive community surrounding me and reminding me, I’m able to thrive in all my roles. Being my child’s mother is deeply satisfying and gives my life profound meaning. So does my challenging, fast-paced role as an advocate. Without either of these things, my life would be out of balance and incomplete.

So, here’s to the villages supporting the lawyer moms with grand gestures, lifting us up with emotional support, taking care of our sick kids, entertaining them while we work on random school holidays, helping us problem-solve, vanquishing the Mom Guilt, and helping us remember that we can be fulfilled by our careers AND our motherhood. Our kids are better for your help. We are better for it.

---

After graduating from IU Robert H. McKinney School of Law and opening her own solo practice, DawnMarie joined Emswiller, Williams, Noland & Clarke, LLC in 2019. She is a devoted wife and proud mom to her son, cat, and giant puppy. When she’s not focused on her clients, with her family, or volunteering in her community, she will likely be enjoying conversation at her book club, crocheting, practicing hot yoga, at the kickboxing gym, or eating cheesecake, or writing for MothersEsquire. She can be reached at dmwhite@ewnc-law.com.

It may have taken a year and a half, but there is finally resolution in the case of Emory Law professor Paul Zwier. You may recall Zwier as the prof who used the n-word in class. Since, disturbingly, there is more than one Emory Law school professor for whom that’s true, let’s go through a primer on the details of Zwier’s case.

Back in 2018, in the very first week of classes, Zwier was teaching his torts class about offensive battery and the case of Fisher v. Carrousel Motor Hotel, Inc. (I’ll give the rundown of the pertinent facts of that case because, well, law school was a long time ago for some of y’all.) In that case, a black man was denied service at a banquet at a hotel, and while offensive stuff was said to the plaintiff, the n-word was not used. Professor Zwier, however, used that word when he called on a student — a black woman to boot — to ask about the fact pattern in the case. In explaining the situation, Zwier said that while he doesn’t specifically recall using the racial slur, he may have gotten the facts of the Fisher case confused with the facts of a different case (and next on the syllabus), Bowden, where the slur was used. He later justified the use of the word (from the report of the Emory Office of Equity and Inclusion): “in using the n-word, [Zwier] intended to suggest that the court record was sanitized and that the plaintiff had actually been called the inflammatory epithet.”

Later that semester, the school began an investigation into allegations Zwier used the n-word. Again. This second incident was not in class, but in office hours when he told a student he didn’t mean to disparage anyone, and said he’d been called an n-word lover in the past. Except, you know, he didn’t say “n-word” he actually used the term.

A Faculty Hearing Committee was convened to determine what should happen to Zwier. The professor launched a full-out defense of his behavior, calling in the American Association of University Professors and the Foundation for Individual Rights in Education making the case for his use of the n-word as academic freedom.

And it appears to have worked. Dean Mary Anne Bobinski sent an email to students at the law school explaining the final results of the committee’s findings and recommendations. While she gussies up the results in language about balancing the need for academic freedom with its policy against discriminatory harassment, the result is that Zwier gets to. (You can read the full email on the next page.)

I have provided Professor Zwier with my decision regarding his status, which adopts the Faculty Hearing Committee’s findings and recommendations with respect to a number of personnel actions, with only slight modifications with respect to the timing of one of the recommendations. Consistent with the Committee report, Professor Zwier will remain a tenured member of the Emory Law School faculty. He will not, however, teach mandatory courses before fall of 2021. Professor Zwier may resume his research and administrative duties, and he will likely return to the Emory campus before the end of this term.

So yeah. He gets to keep his job and just has to take another year off of teaching 1Ls. That sound you hear? It’s a wrist, being lightly tapped.

At least Dean Bobinski seems to recognize that this result will be unsatisfactory for some members of the law school community:

I recognize that we have conflicting views within our community about the appropriate balance between Emory’s core values relating to academic freedom, equity and inclusion. The law school community has carried out a number of initiatives relating to these values over the past year, including faculty workshops on understanding and communicating with students about sensitive topics, both in and out of the classroom, and a student-led session on classroom climate. We look forward to developing new opportunities for dialogue moving forward.

Well, if the initiatives result in fewer professors dropping the n-word, I guess that’s good. Anything less is just empty rhetoric trying to mask a deeper problem.

---

Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

Twitter. Generally speaking, it is terrible. One would not think that 280 characters would be enough to reveal an individual’s depraved mind/heart/soul, and yet such revelations seemingly happen every minute on the platform frequently described by users as a #hellsite. And yet despite frequent tweaks by Jack Dorsey and the rest of the Twitter braintrust, it seems as if the most basic requests from users are being ignored, such as “When are you going to implement an edit feature?” and “Can you please get rid of the Nazis?” One would think the fact that I feel like I am walking into a cesspool of hatred each time I go to the site would curb, or at the very least deter, my usage. That would be incorrect. I, shamefully, admit that Twitter is basically an appendage at this point. Rare is the quiet moment when I don’t instinctively reach for my phone and see what has changed in the world over the past fifteen seconds.

Now in my defense, for all of its numerous, well-documented, flaws, if used properly, Twitter is the best news aggregator on the planet. As someone who consumed news online prior to Twitter’s advent, I would have a hard time explaining to anyone under the age of, say, 29 what it was like to keep abreast of the day’s events in the early 2000s. “So first you would go to the New York Times website, read something there, then try to remember that the URL for ESPN included go.com, for some reason, and several hours later, you would have read three stories and been done for the day.” In addition to its positive attributes as an aggregator, Twitter is probably the only place on the internet, or really in the world, where you can watch real-time de-escalation of armed conflict between highly militarized nation-states.

Not to mention how there are few other platforms, social media or otherwise, where one could parlay a reputation as a troll to not just an ambassadorship to a major ally, but to the Director of National Intelligence despite having no real qualifications for the job.

And while we can debate if Twitter is, in fact, reflective of real life or, instead, it’s own bubble, I think few would argue with the idea that many big issues are being debated and new ideas being offered up in 280 character chunks. This is especially true on the political left, which tends to dominate my own Twitter feed. In a since-deleted tweet, Vox Senior Correspondent Ian Milhiser said that one of the “stories in liberal politics right now is that jobs like banking, consulting, and big law that used to be viewed as morally neutral are increasingly seen as immoral.”^[1] Before diving into these comments, let me start by saying I am a great admirer of Milhiser’s work and his writing on the Supreme Court.  In addition, a circumspect view of Biglaw by political liberals is not just limited to this tweet. The progressive organization Demand Justice (full disclosure: Senior Counsel Katie O’Connor is a friend a former colleague) released a sensational list of potential Supreme Court justices for a Democratic administration last year — give me Karlan, Krasner, and Stevenson, and American jurisprudence would be fundamentally transformed, for the better, in short order — but absent from the list was anyone who had been a Biglaw partner [2] or served as corporate in-house counsel. This was not an oversight or a coincidence, but rather purposeful as the organization seeks to end the appointment of “corporate judges.”

I understand the impulse with such a stance. A bipartisan trend in recent years has been the path to the bench, or even the popular definition of “success” in the legal profession, has been singular: attend an elite law school, clerk for a federal judge, work in Biglaw, and if you leave the private sector, become a prosecutor or go in-house. To be clear, that is a perfectly acceptable, and likely highly profitable, legal career. But it is not, and should not, be the only path for young attorneys. Plus, a judicial branch stocked to the brim with homogenous professional backgrounds — not to mention the more recent phenomenon of homogenous personal traits — leads to worse judicial outcomes. The bench needs more jurists like Jane Kelly of the Eighth Circuit (also on the Demand Justice shortlist), who attended Harvard Law and completed not one, but two, federal clerkships, but who then spent 19 years as an assistant federal public defender. A diversity of professional experience will better inform the judiciary and the opinions it renders.

But while I get the impulse, deeming Biglaw and in-house opportunities as intrinsically immoral is a bridge too far for me. There are a couple of reasons why liberals should not shun these attorneys. First and foremost, doing so is a form of economic privilege. As even nonlawyers/law students who have spent approximately 30 seconds on this website will know, law school is a rather expensive proposition. The majority of law students, especially those at “top” schools, take out six-figure loans in order to earn their J.D. While loan forgiveness is an option for those who go the public interest route, its requirements can be onerous and lock you into a certain career path without allowing much deviation. And oh, by the way, the current administration would like to end the program. Without loan forgiveness, the only option most students see to avoid several decades of debt is to pay off their loans with a Biglaw salary. If the political left is telling these law students that they will be persona non grata, in essence, the message is that only those who come from money are welcome into liberal legal circles and feted for judicial appointments. This strikes me as anathema to everything that political liberalism stands for.

Second, young attorneys can gain outstanding experience from even a short stint in Biglaw that is difficult to replicate elsewhere. I have said before, and still maintain, that pound for pound, the best experience a young attorney can get is via a clerkship. But the level of experience one gets in Biglaw is not that far behind. They are a litany of matters one will work on and large firms wouldn’t be paying top dollar to junior associates if they were expecting poor work product, so the standards that young attorneys have to meet are quite high. In addition to paying clients, there can also be a litany of pro bono matters that allow junior associates to not only work on matters that are of personal interest, but to perform tasks that are typically reserved for more experienced members of the firm, e.g., take depositions, examine witnesses, etc.

All of this is not to say that Biglaw or other corporate legal positions are the path for every law student. In fact, for some students it is absolutely the wrong path. But for the left to ostracize those who ever deigned to work in a for-profit legal entity is to cast out many of the attorneys who will help transform, for the better, the judiciary and likely the legal profession writ large.

[1] Since nothing ever dies on the internet, I was able to capture the bulk of this deleted tweet and quote it here, however, there is language preceding “stories” in the tweet at issue that I was not able to find. If I recall correctly from when the tweet initially popped up on my feed, the full tweet referred to it as the biggest story or the most undercovered story. Either way, the thrust of the tweet is unchanged.
[2] Important to note that Demand Justice does not categorize those who worked in Biglaw as an associate, rather than a partner, as someone who would be disqualified under their standard.

The views expressed in this column are solely those of the author and do not necessarily represent those of Vanderbilt University or Law School.

---

Nicholas Alexiou is the Director of LL.M. and Alumni Advising as well as the Associate Director of Career Services at Vanderbilt University Law School. He will, hopefully, respond to your emails at abovethelawcso@gmail.com.

In a rally outside the Supreme Court yesterday during the abortion cases that didn’t actually go all that badly, Senator Chuck Schumer decided to channel his inner Donald Trump and launch some fiery invective toward the pair of justices giddily preparing to flip precedent and begin the work of dismantling Roe.

“I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind, and you will pay the price.”

The land speed record for pearl-clutching was immediately set as Glorified Hall Monitor John Roberts issued a written statement letting the Senator know that he wasn’t mad, just disappointed:

“Statements of this sort from the highest levels of government are not only inappropriate, they are dangerous.”

Trump himself joined the fray by tweet and Hannity interview — the belt and suspenders of gasbag faux outrage:

Buddy comedy duo Trump and Roberts got backup from even liberal legal observers who aired their concern that the Supreme Court isn’t being afforded the hushed, unquestioning respect befitting the mythology the profession has built around the body and calling for an apology.

Let’s be clear, this kind of language is wholly inappropriate and demeans the Supreme Court as an institution. It’s also Brett Kavanaugh’s exact language:

Since my nomination in July, there’s been a frenzy on the left to come up with something, anything, to block my confirmation. You sowed the wind and the country will reap the whirlwind.

Seems like maybe Kavanaugh’s already taken the Court to Whirlwind Town. Hey John Roberts, the inappropriate and dangerous call is coming from… inside your house!

For his part, Schumer quickly responded through a spokesperson:

For Justice Roberts to follow the right wing’s deliberate misinterpretation of what Sen. Schumer said, while remaining silent when President Trump attacked Justices [Sonia] Sotomayor and [Ruth Bader] Ginsburg last week, shows Justice Roberts does not just call balls and strikes.

So Schumer got Roberts to publicly mouth off to defend Justice Sir Keggerstein when he couldn’t be bothered to call out attacks on the women. Where was the concern over institutional assault when the White House was doing this? It’s almost as if the Supreme Court has no idea what an actual assault is anymore.

The only thing I’ll say for the complainers is that phrases like “pay the price” dial up rhetorical violence and shouldn’t be tossed around casually. It was obvious from context that Schumer was talking about paying a “political price,” but it’s a world of soundbytes and Schumer should be more mindful of that. It distracted from the ultimate point and just invited Fox News to shift off of the real point and pretend that this is a call to violence that, say, putting actual gunsights on elected officials or promising to cover legal fees for assaulting a reporter somehow isn’t.

But most troublingly, it seems a lot of otherwise level-headed people were less offended by the vaguely violent rhetoric than the idea that Schumer spoke of the justices as the nakedly political actors they are. That he cut through all the pomp and circumstance and pointed to two guys who plopped into their seats through a breakdown of governmental order — one through a seat held up by flagrant disregard of constitutional norms, the other forced through in a mockery of a vetting process while witnesses were just sitting there. Two guys who have demonstrated that legal precedent is a trifling inconvenience in their bid to implement a conservative political agenda as though they… were just Republican legislators in robes.

Making cracks in the mythology of the Supreme Court hurts some people. In a lot of ways, it hurts liberals most of all. If liberals are robbed of their faith that a heroic Warren Court is just around the corner it might actually require them to reach out to people outside of their Harvard and Yale alumni network to implement change. But it’s exactly that mythology that Republicans are trying to hack when they dress up ideologues in robes. They need liberals to keep pretending there’s an idyllic judiciary to give right-wing power grabs the sniff of legitimacy.

The courts are gone, folks. Or, more accurately, the courts are back. The courts historically act as a force for little-c conservatism and protecting the established order in the country. The Warren Court was a burr up the ass outlier in the steady trot of American history. Go ahead and join Chuck Schumer in calling it out for what it is and watching Roberts squirm.

The first step to fixing the mythology of the courts is going to be admitting there’s a problem.

---

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

* A Nassau County judge has dismissed a lawsuit against Robert Durst brought by members of his wife Kathie’s family for the alleged murder of Kathie and the disposal of her body. Please let there be another season of The Jinx. [New York Post]

* President Trump is apparently happy that former attorney general Jeff Sessions didn’t win the Alabama Senate primary outright and needs to face a runoff vote. [Washington Post]

* A lawyer is accused of stealing millions of dollars from an estate he was managing in order to pay for cosmetic surgery and gambling trips to Vegas and elsewhere. Guess when it comes to stealing, you gotta go big or go home… [Dayton Daily News]

* President Trump is arguing that a lawsuit involving sexual assault allegations against him should be put on hold. [ABC News]

* A lawyer accused of sexual harassment alleges that the accuser created a hostile environment by hanging a giant penis in an attorney’s office. The accused’s nickname around the office was also apparently “Douchebag McBully.” [Vice]

* A federal judge has tossed a lawsuit filed by Tulsi Gabbard against Google for briefly suspending her campaign ads. Maybe she would have gotten more delegates in American Somoa if the ads weren’t suspended… [The Hill]

---

Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

Introduction

On the 14th February 2020, the Minister of Lands, Agriculture, Water and Rural Resettlement published the Rural Land (Farm Sizes) (Amendment) Regulations, 2020 (No. 2) (SI 41 of 2020) [link] which announced new maximum farm sizes permitted at law in all the agricultural regions in the country.  State-controlled media reported that this designation of farm sizes was meant to accommodate more new farmers on the land expropriated during the Fast Track Land Reform process that started in 1999.

The Government expropriated nearly 12 million hectares of land in the course of that process, but the resettlement of people on the land has been chaotic with no definite figures of how many people or households were resettled, and several hundred cases of multiple farm allocations to the same beneficiaries.  However, there are thousands more Zimbabwean citizens who are clamouring for land and who are looking to be resettled.  It is in this context, apparently, that the Government has sought to amend the maximum permissible farm sizes.

Legal Background to SI 41 of 2020

In 1999 the then Minister of Lands and Agriculture published a set of regulations [SI 419 of 1999] under the Rural Land Act which sought to regulate farm sizes according to the “natural regions” in which the farms were situated.  The regions ranged from Natural Region I, an area of high rainfall, to Natural Region V, an area of low and erratic rainfall, and the maximum sizes of farms permitted in each of the regions were as follows:

          Natural Region                                     Max Farm Size

                I                                                       250 hectares

              IIa                                                          350 ha

              IIb                                                          400 ha

               III                                                           500 ha

              IV                                                         1 500 ha

               V                                                         2 000 ha

In 2017 the Rural Land Act was replaced by the Land Commission Act, which retained the earlier Act’s provisions for fixing farm sizes in substantially the same form ‒ though with important differences which we shall deal with later.

Now the Minister of Lands, Agriculture, Water and Rural Resettlement [his title has expanded since 1999] has used his powers under the 2017 Act to alter the regions and the maximum farm sizes, as follows:

          Natural Region                                     Max Farm Size

                I                                                            250 ha

               II                                                           500 ha

               III                                                           750 ha

              IV                                                         1 500 ha

               V                                                         2 000 ha

The changes the Minister has made with his new SI are the following:

• Natural Regions IIa and IIb have been conflated into one, so there are now five regions rather than six.
• The maximum permissible farm sizes in Natural Regions II and III have gone up.  Whereas in the old Natural Regions IIa and IIb the maximum sizes were 350 ha and 400 ha respectively, they are now 500 ha for the new composite Natural Region II.  And in Natural Region III the maximum size has gone up from 500 ha to 750 ha.

Why the Changes?

The Government has not offered any explanation for changing the Natural Regions and the maximum permissible farm sizes.  The reason given by State media, that the changes will enable more people to be resettled, seems obviously wrong:  if more people are to be resettled on the land then farm sizes have to be reduced, not increased, to accommodate them.  It is difficult to fathom what other legitimate reason the Government could have for the changes.

Ineffectiveness of the amendments made by the new SI

Whatever the reason for the amendment, the new SI is unlikely to go far towards achieving it because the Farm Sizes regulations of 1999, even with the new amendments, have a very limited application indeed.

The regulations, as their name suggests, apply to farms, and the word “farm” is defined in the regulations as:

“farm” means a piece of rural land, whatever it is used for, which is described as a single piece of land in any deed of grant, transfer or other certificate of title registered in the Deeds Registry

That definition was appropriate in 1999 when much of rural Zimbabwe was taken up with large commercial farms, all of which were registered in a Deeds Registry.  Since the Fast Track Land Reform programme, however, those farms have been seized by the Government and their title deeds ‒ i.e. their deeds of grant or transfer ‒ have been cancelled.  They have reverted to being State land.  The plots or stands allocated to A1 and A2 farmers are not registered in a deeds registry and are not “farms” as defined in the regulations.  Hence the regulations, even with the amendments, do not apply to them.

This makes it even more inexplicable that the Government should want to amend the regulations.

Future Problems?

Section 21(2) of the Land Commission Act [link], under which the new regulations were made, gives the responsible Minister powers that are worryingly wide, perhaps not even intended.  The section states that the “appropriate Minister”, i.e. the Minister responsible for State land, may make regulations providing for:

1. Limiting the numbers of “pieces of land” that any one person may own or hold “for farming or other purposes” [This power could be used to stop multiple farm ownership, but it has never been exercised]
2. Limiting the size of any “piece of land” that may be owned or held “for farming or other purposes” [This is the power under which the Minister has amended the maximum farm sizes]
3. Limiting the right of individuals who are not indigenous citizens of Zimbabwe to own, lease or occupy State land
4. Restricting the right of non-citizens and non-residents, or companies controlled by such people, to own, lease or occupy land in Zimbabwe.

The first two powers ostensibly go no further than those given to the Minister under section 15 of the old Rural Land Act [which, as we have said, was repealed by the Land Commission Act] but there is one important difference:  whereas the Rural Land Act applied only to rural land other than Communal Land [see section 3 of that Act], the Land Commission Act extends to all “pieces of land”, i.e. land registered in a deeds registry, whether they are urban or rural and whether they are used for farming, commercial, industrial or residential purposes.  Hence the Minister can limit the size of stands in urban areas and prohibit people from owning two or more such stands.  It may be doubted if that is what Parliament intended, but that is what the Act says.

The third power listed above, by which the Minister can prevent non-indigenous people from occupying State land, was probably intended to keep white farmers off resettlement land which currently vests in the State.  The power goes further than that, however, and could be used to prevent non-indigenous people occupying State land in urban areas.  And even if the Minister has not exercised the power, the fact that he may do so in the future will render the title of any newly-resettled white farmers rather precarious.

The fourth power, under which the Minister can prevent non-citizens and companies controlled by them from occupying land in Zimbabwe, is more far-reaching and disturbing because it makes the title of any non-citizen anywhere in Zimbabwe extremely precarious.

If Zimbabwe is to attract foreign direct investment, foreigners must be confident that they will have secure title to any property, including land and buildings, which they may acquire here.  Their title cannot be secure if a government Minister has power, at the stroke of a legislative pen, to prohibit them from owning, leasing or occupying land in this country.

If Zimbabwe is to be open for business, the Minister’s powers under section 21 of the Land Commission Act must be repealed or at least severely curtailed.

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied.

Post published in: Agriculture

That’s what I thought as an HR lawyer and that’s what I think to this day. Why phooey? My thoughts:

It’s a perfect opportunity to sandbag employees you supervise. Rather than giving them feedback and coaching during the appraisal period, the supervisor waits until the annual review to critique an employee’s performance. Instead of helping employees improve, a disappointing annual review — or what I call a “sandbag” review — only exacerbates performance issues and creates hard feelings.

Lawyers aren’t any different than other employers. They wish problem employees would just magically disappear. However, as many employers have learned to their dismay, that usually doesn’t happen and, if it does, it’s often accompanied by a severance agreement.

Even if a performance evaluation is more frequent than annually, that doesn’t necessarily solve the problem. The employee and the employer (supervisor, manager, whatever the title) disagree about what the performance issues are and how to resolve them. Merely giving the employee a “PIP” (Performance Improvement Plan) doesn’t mean a thing. It’s the coaching and the mentoring to improve performance, rather than merely discussing the plan (if there is even any discussion), asking the employee to sign it, and returning it to the HR Department.

What are performance deficiencies? One of the biggest ones for lawyers is, of course, billable hours. How about insufficient client development? Not “up to snuff” work product, inability to get along with colleagues, and there’s always the “just doesn’t fit in”  ever popular “round peg in square hole” fallback?

Often, it’s “up or out,” bill more hours or you’re toast. Bring in more clients, or at least a client or two. Polish up that work product, and be kind and respectful of colleagues, especially support staff. You either improve forthwith or you’re gone, and in today’s “eat what you kill” environment, those seem to be the choices.

Not a very pleasant “either/or” but one that many lawyers face, whether as newbies or as whatever career stage they are in. It’s never too late to show a colleague the door, and the psychic, reputational, financial devastation may never be completely alleviated.

Spending time writing and then administering performance evaluations is never fun. There are more than half a million samples (who knew?) of language to use in writing them and in responding to them. One need never be at a loss for words, not that we ever are.

Even if it’s a good evaluation, but not quite as good as previous ones, there’s still pushback. The supervisor is different from the prior one and decides to evaluate on “a curve.” Employees who previously received stellar evaluations now receive ones that are merely “meh.” Affected employees are knocked back on their heels. “The goal posts have moved,” which is often the refrain as the explanation for the downgrade, the unstated goal of that supervisor to manage that employee out.

Since in most, if not all, cases, writing and discussing performance evaluations are not considered billable time, they often go to the bottom of the to-do pile unless human resources gets on the case. Even then, the task falls by the wayside.

Whatever supervisors may think about their direct reports, they owe them the courtesy and candor of performance evaluations provided on a timely basis. Some supervisors may disagree. Disagree to your heart’s content, but when it’s time to terminate an employee for poor performance or other metric, and there’s nothing in the file to support the termination request, it’s not a pretty picture.

When an employee protests the evaluation and writes a response, too often the response is just made part of the employee record, without any evaluation as to whether the employee’s complaints may be justified or meritless.

Humans are pains in the butts. How many times have we thought or said to each other that the practice of law would be fun without the clients? Too many times to count.

There are people who make good, if not great, managers, and there are others that should be only individual contributors and have no management responsibility. Managing your staff, having frequent conversations about what is working and what is not, and encouraging your subordinates to improve are definite time sucks.

Almost twenty-five years ago, Mr. I.’s supervisor wrote his evaluation, saying that “He is not an enlightened or brilliantly creative man, but with a strong board, he could absolutely do the job.” Fifteen years ago, an associate dean at the Yale School of Management said that Mr. I. was “a loyal drone” and that expectations for him were low. How cutting and what a lack of insight.

Now, in 2020, that “loyal drone,” that “not enlightened or brilliantly creative man” also known as Robert Iger, the CEO who expanded the Mouse House (aka Disney) and transformed the entire entertainment industry, has stepped down as CEO. Why do I mention him?

He is Exhibit A for why performance evaluations do not necessarily mean that one is doomed to permanent professional failure. An evaluation that is thoughtful, carefully crafted, and encouraging (let’s agree that the employee always does at least one thing well) can go a long way.

However, if the evaluation is harsh and unforgiving, then all we have to do is look at the rates of depression, addiction, and death by suicide among us to know the toll that such an evaluation can take. So, for the employee: keep going. For the employer: recognize that ability and talent can take many forms and can take time to flourish. Very few of us are overnight successes.

---

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.