Monthly Archives: October 2019

IMPROVE YOUR BUSINESS WRITING SKILLS

“Substitute ‘damn’ every time you’re inclined to write ‘very;’ your editor will delete it and the writing will be just as it should be.”

Samuel Clemens aka Mark Twain

I was a bad writer as a young lawyer.  I believed big words and long sentences would impress clients and judges.  I overused adjectives.  My best arguments were buried in the middle of briefs.  Readers waited until the middle or end of a brief — if they got that far — to know what I wanted.

I learned how to write from a partner assigned to edit my work.  Returned drafts resembled murder scenes — with splattered blood everywhere (aka his red ink edits).  These were pre-Microsoft Word days, when paper still ruled.  Red-faced, I would leave the partner’s office, shuffle down the hallway to my office, and start over.

You don’t need to do the walk of shame to become a better writer.  To write better:

  • Use short sentences. 
  • Eliminate extra words (e.g. profoundly, literally, completely, totally, very).
  • Get to the point at the outset of your email/brief/letter.
  • Avoid long emails.
  • Avoid long paragraphs — Think:  do you like reading emails with never-ending paragraphs?
  • Use headings, especially if you must write a longer email or letter.  
  • Use “because” when making your request or point:  “I would like you to buy our product because it is three times more effective, and less expensive, than our competition’s product.”      
  • Don’t bury your best point midway through your writing; if you see you have done this, move it up to the beginning of your letter. 

Do an experiment: the next time you read someone else’s, or your own, writing, look at my tips again. Ask yourself:  could the email/letter/legal brief be improved?  I’ll bet you answer “yes.”  If yes, edit the document, unless it is too late — an opportunity lost.

Comic strip authors are perhaps the best writers.  Forced to tell a story in as little as three or four sentences, they capture your attention, get to the point, and waste no words.  “Dilbert” by Scott Adams is one of my favorite comic strips because of its satirical office humor.  Read it a few times and you will find yourself thinking, “hey, that reminds me of [so and so] in my office.”

Adams gives great writing advice.  I leave you with his article “The Day You Became a Better Writer”:

I went from being a bad writer to a good writer after taking a one-day course in “business writing.” I couldn’t believe how simple it was. I’ll tell you the main tricks here so you don’t have to waste a day in class.

Business writing is about clarity and persuasion. The main technique is keeping things simple. Simple writing is persuasive. A good argument in five sentences will sway more people than a brilliant argument in a hundred sentences. Don’t fight it.

Simple means getting rid of extra words. Don’t write, “He was very happy” when you can write “He was happy.” You think the word “very” adds something. It doesn’t. Prune your sentences.

Humor writing is a lot like business writing. It needs to be simple. The main difference is in the choice of words. For humor, don’t say “drink” when you can say “swill.”

Your first sentence needs to grab the reader. Go back and read my first sentence to this post. I rewrote it a dozen times. It makes you curious. That’s the key.

Write short sentences. Avoid putting multiple thoughts in one sentence. Readers aren’t as smart as you’d think.

Learn how brains organize ideas. Readers comprehend “the boy hit the ball” quicker than “the ball was hit by the boy.” Both sentences mean the same, but it’s easier to imagine the object (the boy) before the action (the hitting). All brains work that way. (Notice I didn’t say, “That is the way all brains work”?).

That’s it. You just learned 80% of the rules of good writing. You’re welcome.

“So the writer who breeds more words than he needs, is making a chore for the reader who reads.”

Dr. Seuss

Art Bourque is an AV rated lawyer who has been practicing law in Phoenix, Arizona for 28 years.  Art is a commercial and tort litigator. Art also practices employment law and conducts management training to help businesses operate efficiently and avoid mistakes.  Art can be found at www.bourquelaw.com, art@bourquelaw.com, 602.559.9550, linkedin, or trail running with his dog, Eli. 

Art wishes to thank John Lemaster, who taught him how to write.  John is not only a solid lawyer, he is a good human being.  That’s right, a few attorneys are human, too. John, thank you, and I sincerely apologize for all the edit angst I caused you “back in the day.” 

WALMART HIT WITH $5.2 MILLION JURY VERDICT IN ADA CASE

“Stupid is as stupid does.”

Forrest Gump

The Americans with Disabilities Act (ADA) became law in 1990.  Despite being the law of the land for 29 years, the ADA continues to confound businesses.  Last week, a jury found Walmart liable for violating the ADA when it refused to accommodate the disabilities of a longtime employee; it awarded the employee $5.2 million in damages.

Walmart could “afford” the large verdict, but your company cannot.  This article will help you make good employment decisions so you can focus on doing the business of your company.

WALMART’S FIASCO

Walmart employed a deaf and visually impaired cart pusher for 16 years in its Beloit, Wisconsin store.  The employee performed his job with the accommodation of assistance from a job coach provided by public funding.

Shortly after a new store manager arrived, however, the manager suspended the employee and forced him to resubmit medical paperwork in order to keep his job. When the employee submitted new medical paperwork, requesting the continued accommodation of assistance from the job coach, the store cut off communication and effectively terminated him.

After a 3½-day trial, the jury found in favor of the EEOC and awarded the employee $200,000 in compensatory damages and an additional $5 million in punitive damages.

“Employers have a legal obligation under federal law to work with employees who need accom­modations for disabilities,” said Gregory Gochanour, regional attorney for the EEOC’s Chicago District. “When companies shirk that obligation, the EEOC will fight to uphold the rights of disability discrimin­ation victims. In this case the jury sent a strong message to Walmart and to other employers that if they fail to live up to their obligations under the law, they will be penalized.”

ADA REASONABLE ACCOMODATION REQUIREMENT

We do not need to know every detail of the Walmart case to know this: cases that end up in court often share a common thread of employer mistakes.  To help you avoid making such mistakes, let’s address what the ADA requires; then we will look at how to avoid common employer mistakes.

The ADA prohibits employers from discriminating against employees with physical or mental disabilities. It requires that employers provide reasonable accommodations for such employees to be able to perform their jobs.

“Reasonable accommodation” means any change to a job or work environment that permits an employee with a disability to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities. For example, reasonable accommodation may include:

  • providing or modifying equipment or devices,
  • job restructuring,
  • part-time or modified work schedules,
  • reassignment to a vacant position,
  • adjusting or modifying examinations, training materials, or policies,
  • providing readers and interpreters, and
  • making the workplace readily accessible to and usable by people with disabilities.

An employer is required to provide a reasonable accommodation to an applicant or employee with a disability unless the employer can show that the accommodation would be an undue hardship — that is, that it would require significant difficulty or expense.

HOW TO STAY ADA COMPLIANT AND OUT OF COURT

Here are six core issues to consider when disciplining or terminating employees with mental or physical challenges:

1. Terminating or disciplining an employee with a long tenure at the company.

The Walmart employee had been with the company for 16 years, when all of a sudden it appeared that Walmart changed the rules of the game.  Any time you have an employee with a lengthy work record you should think twice about whether terminating the employee will be perceived to be for an unlawful reason.

2. Optics.

Have you ever been to a grocery store and been helped by someone who had a disability?  I had a visceral reaction when I learned that Walmart had fired such a worker.  Most of us have a place in our hearts for people who are faced with challenges but who nevertheless work thru those challenges; so did the Walmart jury.  When terminating a disabled employee, think optics:  how will this look to the public, or to a jury?

3. Ensure you have explored a reasonable accommodation for the employee.

Do not terminate a mentally or physically disabled employee without first (1) exploring in good faith whether you can provide the employee with a reasonable accommodation and (2) documenting your efforts, because to the EEOC if an issue is not documented it never happened (i.e. the EEOC will conclude that you did not comply with the reasonable accommodation requirement).

4. Terminating or disciplining an employee with no disciplinary history.

As with a long term employee, terminating a disabled employee with a good work history, history of good reviews, or no disciplinary history is risky. 

5. Decide the basis for your “undue hardship” defense before you terminate a disabled employee.

“Undue hardship” means an action requiring significant difficulty or expense, when considered in light of factors such as the nature and cost of the accommodation, the overall financial resources of the employer, and the type of operation or operations of the employer.

Before you terminate a disabled employee on the basis that an accommodation will cause an undue hardship to your company, ensure that you can support your conclusion with evidence and a reasoned analysis.  Consider the relatively small cost of paying legal counsel for an hour or two of consultation on your prospective termination decision, versus possibly paying for hundreds of hours if you make a poor decision and require litigation counsel.

6. Eliminate conflict and risk via a severance agreement.

In many instances both the employer and employee are looking for a reasonable, amicable way out of a difficult situation.  Instead of inflaming a situation by terminating an employee, consider the possibility of a negotiated resolution via a severance agreement; under such an agreement your company would pay the employee a sum of money and, in exchange, the employee would provide your company with a release of any claims the employee could assert.

CONCLUSION

You control your company’s destiny.  If you understand the ADA and, equally important, human nature, your chance of ending up on the wrong end of a Walmart-like jury verdict will decrease to near zero. 

Forrest: What’s my destiny, Mama?

Mrs. Gump:  You’re gonna have to figure that out for yourself.

Art Bourque is an AV rated commercial and employment lawyer who has been practicing law in Phoenix, Arizona for 28 years.  Art provides employment law training to help businesses operate efficiently and avoid mistakes; he is also an experienced litigator.  Art can be found at www.bourquelaw.com, art@bourquelaw.com, 602.559.9550, linkedin, or trail running with his dog, Eli.