- M. Lee Smith Publishers

<p><font class="byline"><span style=" font-family: Arial; font-size: x-small;">Excerpted from <a href="http://www.hrhero.com/txemp.shtml?" target="_blank">Texas Employment Law Letter</a>, written by attorneys at the law firm <a href="http://www.employerscounsel.net/bios/txemp.shtml?" target="_blank">Ford & Harrison LLP</a></span></font></p>

<p class="text"><span style=" font-family: Arial; font-size: x-small;">Here's a common lament: <i>If only I knew then what I know now.</i> And we lawyers often hear that right after trial. Trial provides the wisdom of hindsight, and that hindsight is invaluable. Here, then, are some thoughts on things we wished clients had done that would have made their trials a lot more defensible.</span></p>

<p class="text"><span style=" font-family: Arial; font-size: x-small;">Here's the usual drill: An employee is a poor performer. You tell the employee that she isn't meeting expectations, you do it in writing, and you fire her if she doesn't. While that's OK, in the right circumstances, there's a better way.</span></p>

<p class="text"><span style=" font-family: Arial; font-size: x-small;">Talk to the employee about a "mutually agreeable resolution" of the performance difficulties. Frame the issue that way: When you give the employee a written document on her performance, recite how you and the employee discussed the matter and that you came to a mutually agreeable resolution on dealing with the performance issue. Whether you use those words isn't as important as the fact that you communicate the idea. There's a big difference in a juror's mind between a cram down and an acceptance. You get more mileage from the second.</span></p>

<p class="text"><span style=" font-family: Arial; font-size: x-small;">And while we're at it, remember that how something is said is just as important as what's said. The Tiffany jewelry company understands this with its beautiful blue box. It's the same in dealing with employees. Writing them a five-page memo, even if you're talking about mutually agreeable resolutions, that has only three or four paragraphs and is single-spaced does nothing to help your case.</span></p>

<p class="text"><span style=" font-family: Arial; font-size: x-small;">Provide training for supervisors on how to write memos: Keep them short, keep them clear, and require supervisors to write just like they talk. The problem with writing is that once someone has pen in hand or keyboard front and center, he thinks he needs to sound smart. That's where bad writing comes from. Liberate your supervisors from that tyranny.</span></p>

<p class="text"><span style=" font-family: Arial; font-size: x-small;">Train your supervisors to use bullet points and check marks to make their points. Have them use subheadings as orientation points for the reader. Write to be understood, not to impress.</span></p>

<p class="text"><span style=" font-family: Arial; font-size: x-small;">When I was a new lawyer at the National Labor Relations Board, I wrote my first legal brief. I thought it was brilliant. My supervisor thought otherwise. Handing it to me, he quietly said, "Write like Ned in the First-Grade Reader: This is Spot. Spot is a dog. See Spot run." While my feathers were ruffled, I followed his advice and hopefully have ever since.</span></p>

<p class="text"><span style=" font-family: Arial; font-size: x-small;">Often, an employee's conduct puts fellow employees at a disadvantage - whether it's excessive absenteeism or tardiness, the failure to timely perform tasks, or the inability to do so. Try using phrases in the memo to the employee about how her conduct affects her fellow employees and why it's important to work as a team, and when the employee doesn't, identify the consequences to her co-workers. Be specific.</span></p>

<p class="text"><span style=" font-family: Arial; font-size: x-small;">One of the most powerful arguments in front of a jury is that an employee was trying to put her interests above the interests of other employees. When you present that frame to a jury, they think the complaining employee was looking for special treatment.</span></p>

<p class="text"><span style=" font-family: Arial; font-size: x-small;">Finally, every company should think about doing what my co-editor, Theresa Gegen, calls an "after-action report." She was a captain in the U.S. Army (she served in the first Gulf War and received her airborne badge after jumping out of an airplane five times) and learned this valuable lesson. After every engagement, an after-action report is written - no more than a page or two detailing what occurred and what was done right and what was done wrong and making recommendations on how to improve.</span></p>

<p class="text"><span style=" font-family: Arial; font-size: x-small;">It's not about finger-pointing for bad or praising for good but learning from the experience. Do an after-action report after any legal issue is over- not just after a trial. Do it even if you've won.</span></p>

<p class="text"><span style=" font-family: Arial; font-size: x-small;">My mother used to say that all experiences are good ones, but only if you draw the right lessons from them - otherwise they're just something that happened to you. Think about these things that we've learned from 25 years of trying cases. Putting them to work for you now may lessen your chance of going to trial and, if you must, improve your chance of winning. To paraphrase Sun-Tzu, all trials are won or lost before they even begin.</span></p>