Don’t dread eating tomorrow’s frog

If your job is to eat a live frog, then best to do it first thing in the morning. If your job is to eat two frogs, then start with the biggest one. This is the wise collective wisdom of productivity managers and of course Mark Twain.

This provides a great example of why people procrastinate and perhaps a way to cope with it. This leads into why people procrastinate at all. You can understand why people might dread eating a cold frog in the morning as opposed to a warmed-up frog in the afternoon.

The New Yorker gave an interesting analysis of time. It’s only during the 3 seconds that you can sing “Hey Jude” that you can really perceive what is happening. Everything after that window is simply the past, and everything before it is simply the future. The New Yorker analyzes some thinkers on the subject that suggest you weigh the past, present and future time equally.

Why dread eating that future frog when you likely no longer dread eating that past frog. Neither are in the moment. So, you are better off living in the moment and perhaps only dreading that next bite of frog in front of you and leaving the dread of tomorrow’s frog in the future instead.

The Necktie is dead.

Long live the necktie

photo by Pexels

Now that the pandemic existential crisis is coming to an end, and the climate existential crisis never left and is picking up speed, the next crisis will be what to wear to work. Now that employers might have this expectation you actually have to return to a place of employment.

If you picked up the COVID 15 pounds, then what is left in your closet that still fits might be thin. Even if you aren’t any more. But the old standard necktie can still fit so long as it eventually reaches the top of your belt buckle. Although some politicians see fit to wear it longer.

If there was a time to cast aside old customs, then it is time to end the necktie. Shoelaces help keep your shoes on. Belts keep your pants up. Suspenders help you imagine you are Michael Douglas in Wall Street. But ties just seem to hide your shirt buttons and make it awkward to undo that top button. Even if loosening your tie makes you look like you are truly working hard.

The next step will be to rid ourselves of shirts that have collars to hold the tie. This is the first in a series of steps to finally get back to the tee-shirts you have been wearing for the past 18 months.

The New Abby Normal

Photo by Olya Prutskova on Pexels.com

We live in interesting times.

Will the times ever become less interesting in the future? Doesn’t seem likely.

  1. We have learned how to zoom and Microsoft teams. All those meetings that could have been an email have been revealed for what they truly are. Little black holes where not even the truest wisdom could possibly escape.
  2. Housing prices went through roof. The fear of missing out drove so many into purchasing something they may not live long enough to pay off the mortgage and regret. As Thoreau said, it wasn’t so much that they got the house as the house got them.
  3. All the introverts became ecstatic at being forced to binge watch to their hearts content. They are now dreading having to socialize once again. I’m just saying this because a friend told me.
  4. A lot of people went out and got Covid support pets. We already had two golden retrievers before all this happened. I did splurge and got one more koi for the pond outback. The little guy has taken refuge in the pond filter for the last couple of months. Also binge watching I suspect. He will not be happy come fall when everyone comes back in the aquarium to overwinter.
  5. Time will tell if we see a lot of Covid children. If anything, there might be a pullback since few people are entering into new relationships. There may be less tension in the air since people have a reason not to keep entering the dating scene. Few people really regret binge watching. It’s more of a humble brag when they do mention it.

Keep living the Covida Loca!

Four helpful vacation hints

Help get away from your home/office office/home

Clark Griswold: “Despite all the little problems it’s fun isn’t it?”
Ellen Griswold: “No. But with every new day, there’s fresh hope.”

National Lampoon’s Vacation

Now that office and home blurred into this wonderous mix of continuous office work and house work, one might wonder about taking a vacation. From which category will have to be left up to you. But there are some definite steps you can take:

  1. Put in an automatic reply that you are on vacation. For the office, go to voice mail and email. For the rest of family you will have to rely upon sticky notes on your door and auto reply on text, in case that is the only way your children now interact with you.
  2. For the office, divert incoming work to a trained associate. For the home, divert laundry to a trained child and just be prepared to live with the results.
  3. For the smaller office, just ensure automatic payments are going for various repetitive expenses. For the home, arrange for a once a week delivery of frozen easily microwavable foodstuffs. And a bottle of chewable vitamins since healthy and microwaveable are rarely in the same sentence on the wrapping.
  4. And for both home and office, get back into things a day before everyone expects you back in order to reduce stress.

The Dangers of Wine (bottle openers)

This father’s day, let’s talk about safety and the dangers of wine. I actually mean wine bottle opening.

My favorite bottle opener has the traditional worm gear that drives the screw into the cork. The second part is the rack and pinion operated by the levers.

After 45 years of opening wine bottles, I finally managed to catch the tip of my thumb in between the steel rack and the steel and equally unforgiving pinion.

Anyway…

Be careful this father’s day. Let your adult children take care of things tonight. They are far more nimble and heal much faster.

#safety#love#fathersday2021#wine#health

When you ask for a release, apologizing after does not cut it.

“That it’s too late to apologize, it’s too late

I said it’s too late to apologize, it’s too late

Too late,”

OneRepublic

Apologizing fixes many things, except the past. The past remains well crystalized. We see a fine example of apologizing not fixing the repudiation of an employment contract.

Ms. Perretta started work at Rand as a customer advocate on September 29, 2014, pursuant to a written employment agreement dated September 11, 2014. Rand promoted Ms. Perretta to the position of sales representative effective November 1, 2018, pursuant to a new employment contract dated October 23, 2018. The 2018 contract stated Rand could terminate Ms. Perretta’s employment without cause by providing two weeks notice or pay in lieu of notice plus the minimum notice or pay in lieu of notice, benefits and severance pay required by the Ontario Employment Standards Act.

Rand terminated Ms. Perretta’s employment on March 31st, 2020. However instead of providing her two weeks pay in lieu of notice, Rand provided her with a letter demanding a release prior to payment of the two weeks severance.

Ms. Perretta’s termination letter included an “Enhanced Severance” offer whereby Ms. Perretta would receive the two weeks’ salary only upon within 7 days signing a detailed three page release, returning all company property, continuing to be bound by the Confidentiality and Non-Competition and Non-Solicitation provisions of the 2018 Employment Contract, modifying her LinkedIn profile and repaying Rand in case she breached any of these terms. Her employment contract did not include any such requirements.

Ms. Perretta pointed this out to Rand, but instead Rand reiterated its demand for a full release prior to payment. Rand then proceeded to ask not once, but twice to have the release signed before advancing the severance. Mr. Perretta’s lawyer pointed out the error to Rand that the employment contract did not include such requirements, and it is only after this that Rand proceeded to pay out the severance. Of course, this did not end the matter.

Ms. Perretta’s lawyer (dare I say cleverly) took the position that Rand repudiated the employment contract by acting as if it was no longer bound to the terms of the contract.  Ms. Perretta then became entitled to payment in lieu of notice pursuant to the common law.

Justice Sanfilippo in the Ontario Supreme Court held that Rand attempted to deny the entire bargain of the contract. By refusing to pay the two weeks severance, Rand deprived her of the entire monetary benefit of the termination provision. Even if the oversite was an innocent lack of understanding of the employment agreement that Rand had drafted, this innocence did not override the serious nature of the repudiation.

The court applied the test considering the surrounding circumstances whether one party acted as if the contract would no longer apply looking at the matter objectively. This includes looking at what the impact would be upon the innocent party and whether they would be substantially deprived of the benefit of the contract.

With respect, the termination payment seems a small component of the overall total compensation package of five and a half years of salary and benefits. The termination benefit was only .7% of the entire total compensation package over the term of employment. However, at the end of any employment relationship, the termination provisions do loom large. And this is when the employee is at their most vulnerable.

The court took particular notice that Rand’s lawyer did apologize a few days later after the termination. Sometimes apologies can help, particularly in medical malpractice. A sincere apology is an act of humility. This requires that the person recognizes that they have done something wrong and needs to acknowledge this mistake. But this makes the apologizing person vulnerable, and the last thing lawyers want to do is show weakness since this acts as a drop of blood in the water, not withstanding the sincerity.

This recalls George Burns’ quote of “Sincerity – if you can fake that, you’ve got it made.” This is not recommended since one’s sincerity, or lack thereof will always come to light.

Being sincere of course is not sufficient. You should also express regret and be specific about the harm. And of course, you mitigate the harm you have caused.

However, in drafting releases, employers normally try to squeak in as many provisions to their benefit at the end of any employment relationship. Here Rand attempted to include that Ms. Perretta had no other claims or action, consented to an injunctive relief in case she breached the release and agreed to a nondisparagement clause (which at this point every employer wants) and agreed to keep the terms of her employment termination confidential.

The last clause is particularly ironic since this court decision has been discussed in the media and is free on CANLii. And just so you also know, as Ms. Perretta was 5.5-year employee in a non-mangement role, she received 6 months wages.

This raises the question as to where to put these otherwise nice to have clauses. The only other location would be right into the employment contract right at the beginning of the employment relationship. As the employer and employee attempt to forge a positive initial relationship including these termination terms may seem somewhat hard, but as we should remember words of the great jurist Elton John, who sang that in actual fact “sorry seems the hardest word”.

For employers, it’s too late to apologize.

“That it’s too late to apologize, it’s too late
I said it’s too late to apologize, it’s too late
Too late, oh…”

OneRepublic

Apologizing fixes many things, except the past. The past remains well crystalized. We see a fine example of apologizing not fixing the repudiation of an employment contract.

Ms. Perretta started work at Rand as a customer advocate on September 29, 2014, pursuant to a written employment agreement dated September 11, 2014. Rand promoted Ms. Perretta to the position of sales representative effective November 1, 2018, pursuant to a new employment contract dated October 23, 2018. The 2018 contract stated Rand could terminate Ms. Perretta’s employment without cause by providing two weeks notice or pay in lieu of notice plus the minimum notice or pay in lieu of notice, benefits and severance pay required by the Ontario Employment Standards Act.

Rand terminated Ms. Perretta’s employment on March 31st, 2020. However instead of providing her two weeks pay in lieu of notice, Rand provided her with a letter demanding a release prior to payment of the two weeks severance.

Ms. Perretta’s termination letter included an “Enhanced Severance” offer whereby Ms. Perretta would receive the two weeks’ salary only upon within 7 days signing a detailed three page release, returning all company property, continuing to be bound by the Confidentiality and Non-Competition and Non-Solicitation provisions of the 2018 Employment Contract, modifying her LinkedIn profile and repaying Rand in case she breached any of these terms. Her employment contract did not include any such requirements.

Ms. Perretta pointed this out to Rand, but instead Rand reiterated its demand for a full release prior to payment. Rand then proceeded to ask not once, but twice to have the release signed before advancing the severance. Mr. Perretta’s lawyer pointed out the error to Rand that the employment contract did not include such requirements, and it is only after this that Rand proceeded to pay out the severance. Of course, this did not end the matter.

Ms. Perretta’s lawyer (dare I say cleverly) took the position that Rand repudiated the employment contract by acting as if it was no longer bound to the terms of the contract.  Ms. Perretta then became entitled to payment in lieu of notice pursuant to the common law.

Justice Sanfilippo in the Ontario Supreme Court held that Rand attempted to deny the entire bargain of the contract. By refusing to pay the two weeks severance, Rand deprived her of the entire monetary benefit of the termination provision. Even if the oversite was an innocent lack of understanding of the employment agreement that Rand had drafted, this innocence did not override the serious nature of the repudiation.

The court applied the test considering the surrounding circumstances whether one party acted as if the contract would no longer apply looking at the matter objectively. This includes looking at what the impact would be upon the innocent party and whether they would be substantially deprived of the benefit of the contract.

With respect, the termination payment seems a small component of the overall total compensation package of five and a half years of salary and benefits. The termination benefit was only .7% of the entire total compensation package over the term of employment. However, at the end of any employment relationship, the termination provisions do loom large. And this is when the employee is at their most vulnerable.

The court took particular notice that Rand’s lawyer did apologize a few days later after the termination. Sometimes apologies can help, particularly in medical malpractice. A sincere apology is an act of humility. This requires that the person recognizes that they have done something wrong and needs to acknowledge this mistake. But this makes the apologizing person vulnerable, and the last thing lawyers want to do is show weakness since this acts as a drop of blood in the water, not withstanding the sincerity.

This recalls George Burns’ quote of “Sincerity – if you can fake that, you’ve got it made.” This is not recommended since one’s sincerity, or lack thereof will always come to light.

Being sincere of course is not sufficient. You should also express regret and be specific about the harm. And of course, you mitigate the harm you have caused.

However, in drafting releases, employers normally try to squeak in as many provisions to their benefit at the end of any employment relationship. Here Rand attempted to include that Ms. Perretta had no other claims or action, consented to an injunctive relief in case she breached the release and agreed to a nondisparagement clause (which at this point every employer wants) and agreed to keep the terms of her employment termination confidential.

The last clause is particularly ironic since this court decision has been discussed in the media and is free on CANLii. And just so you also know, as Ms. Perretta was 5.5-year employee in a non-mangement role, she received 6 months wages.

This raises the question as to where to put these otherwise nice to have clauses. The only other location would be right into the employment contract right at the beginning of the employment relationship. As the employer and employee attempt to forge a positive initial relationship including these termination terms may seem somewhat hard, but as we should remember words of the great jurist Elton John, who sang that in actual fact “sorry seems the hardest word”.

You actually are living in the Matrix

Imagine you outline to your client the possibilities of two court actions where he is the plaintiff in one case and the defendant in another. Legal fees are no longer a cost consideration. In the first case, you advise that he could settle and receive $70,000 or have a 90% chance of the court awarding him $80,000. In the second case, you advise that he could settle and pay $70,000 or have a 90% chance of the court deciding he should pay $80,000.  If he was like most people, in the first case he would settle for the $70,000. In second case he would likely go to court and risk paying $80,000. People prefer sure things when it comes to gains, and take risks when it comes to avoiding losses.

This simple example captures a substantial portion of Kahneman’s book Thinking: Fast and Slow in addition to Thaler’s book, Nudge. Kahneman and Thaler separately won the Nobel Prize for work in their respective fields. The Obama administration successfully incorporated the concept of ‘nudges’ into their policy work. These theories on behavioral economics can contribute substantially towards the practice of law and the attraction and retention of clients.

Kahneman separates our thought process into a simple dichotomy of System 1 thinking, fast, and System 2 thinking, slow.

System 1 thinking explains why people feel losses twice as much as they feel comparable gains. Fast thinking comes into play when you stand up to object to a line of questioning without knowing why, when you sense a brief misses something, or when you believe that there really is a tiger outlined in the grass just ahead. Regardless of your personal circumstances, fast thinking comes in handy to avoid being eaten. Figuratively or literally.

Fast thinking includes intuition. Although, thinking with your gut can be dismissed as superficial, Kahneman recognizes that experts glancing at a situation can reach a correct conclusion simply based on continuous experience.

Intuitive thinking guides the halo effect. Someone’s reputation, and ego, could proceed them. Or exceed them. This may give this person an aura of invincibility in that they have won so often they will likely win again. If you, or a court, provides that person the benefit of doubt, a halo so to speak, then you should dissuade yourself of this notion. Rest assured, the rest of the day has not yet been written. Anything can and will likely happen.

Information immediately available primes system 1 thinking and feeds into the ‘anchoring’ concept. Kahneman provides the example of a panel of German judges asked to roll a weighted die that came up with three or nine. The judges were then asked to provide a ruling on a certain fact situation. Although it should not have mattered, judges rolling a nine more often gave higher sentences that the judges that rolled a three.

System 2, slow thinking represents the traditional lawyer mind; collecting facts, analyzing those facts, and providing a researched opinion.  Relative to fast thinking, slow thinking generally has to be dragged into the thought process if the mind feels that fast thinking ‘has got this covered’. Slow thinking eats Doritos while watching TV. I prefer the term ‘critical thinking’ as slow thinking suggests something negative.

Understanding how prospective clients think can impact how you market anything. Imagine yourself a prospective client landing on your firm’s website. The website asks if you want to allow cookies in order to enhance your website experience. Being like most people, you sort of realize that cookies attach to your browser benignly. But you read something about them somewhere and your overall impression leans towards not allowing cookies. You congratulate yourself on being prudent, but your web experience becomes muted. The firm suffers an opportunity cost.

Continuing your search, you land on another site that clearly, but not alarmingly, states that a small piece of code, a cookie shall be added to your web browser. Once again, you don’t know anything more about cookies than you did five minutes ago, but you proceed regardless. Your web experience becomes far more customized, and the law firm discovers substantial information on future clients’ interests.

Most clients intuitively refuse to accept cookies given the choice. The critical part of the mind would not examine the situation since there did not appear to be an immediate need. A client merely advised of cookie use would likely proceed, confident in the notion that someone vetted the cookie usage for them. The concept of providing a default cookie option nudges the client into a better result.

One would think that providing a range of options provides greater satisfaction than fewer options. However, Thaler says that having too many options leads to greater stress and reduced satisfaction. Therefore, providing a default option increases the probability that a correct choice is being made.

Thaler euphemistically refers to this as libertarian paternalism. People make better decisions by the correct arrangement of choices. The person in charge of this arrangement becomes the choice architect.

A business owner becomes a choice architect in numerous ways. In speaking with a client and laying out their options, the phrasing of options definitely impacts the client’s choice. Although business owners may feel that they want to leave the choice of options strictly to the client, one should determine what level of guidance the client requires. Normally they would want your best recommendation.

Thaler parses apart the various tools that a choice architect has into five main aspects: Incentives, mapping, defaults, feedback, expect errors and structuring complex choices. For example data visualization and mnemonics of legal information can illustrate the difference between complex choices. In retaining clients, understanding the process behind making decision choices increases your value proposition defined as the benefits relative to the costs. By making the correct choice easier, you have channeled your client to the correct choice. You have reduced not so much the monetary cost to the client, but the stress cost of making that decision.

In making an intuitive choice, clients want to know what other people did in similar situations. Thaler found that a need to conform easily influences peoples’ choices. Clients could operate on this basis to decide how to proceed on a case for example. They would rely more on what friends and other people have done in a similar situation. Therein lies the importance of stories. Relating other individual’s stories can add additional comfort to clients and make the decision easier. Adding stories to your advice makes a client’s choice easier.

To demonstrate this, Thaler identifies greater compliance in hotels where people are advised the guests before them selected the economical option of not insisting upon having towels replaced daily. People like to be part of the crowd as this makes their decision making easier. Your firm stories should reflect how generally others have proceeded.

These innovative concepts require greater examination and incorporation into today’s business practice particularly in cases where they might operate to your client’s detriment.

Did you feel the nudge?

Living after doing stupid

Have you ever thought back on wonder how you survived this long?

As the saying goes, there are bold pilots and there are old pilots, but there are no old bold pilots.

I think my earliest memory at 8 was one of those bottle rockets. You fill this plastic projectile with water and then pump it full of air. Making this sharp plastic rocket into bottled death.

My friend was busy pumping up one of these plastic death dealers when I noticed that he was pointing it right at me. Thinking this was not particularly safe, I fell to the side to lie on the grass. It was at that instant the rocket let go and basically grazed my face.

At about 10 my parents got me one of those BB guns. I built a little shooting gallery in the basement. I thought it would be cool to use those little metal hockey players from the hockey games they used to sell. Shooting them down I was Zabata. I was the Rifleman. A BB hit the metal player and ricocheted right back to just below my eye. No, instead I was Ralphie from Christmas Story.

I am beginning to think my parents were out to get me by enabling my various destructive tendancies.

My dear mother was kind enough to accompany me to the pharmacy. She asked for a few ounces of potassium nitrate, saltpeter. The major ingredient to gunpower. The pharmacist was astute enough to ask her as to why, and she simply responded that I wanted to conduct experiments. Which was true of course. He simply admonished her slightly that my intent was to make gunpowder. That was the experiment. That didn’t stop her. Or me of course. And this was 50 years ago. Kinder gentler more trusting times back then.

I didn’t have the internet. But I did have all 32 volumes of the Encyclopedia Britannica. Plus the maps and the index. All the world’s knowledge.

Flash forward a few years, then we have the teenage driving years. Got through that without a speeding ticket. I went through two transmissions however. And I went through, partially, one garage wall.

Not surprising, a lot of people are injured when skiing. When I was still in my late teens I went skiing through the forest. I careened towards an tree and managed to drive both my arms forward to force myself to merely shoulder check a tree at highspeed.

You think I would learned a bit better.

After attending a conference I went hiking in the mountains above the tree line. No water. No confirming with other people where I was going. But I struggled through this broken slate type of ridge. One side of the hill faced the lodge where a sharp eyed conference attendee might point out what that idiot, me, was doing. But if I fell on the other side, on the dark side so to speak, I doubt anyone would notice my absence till later the following day. I think some would notice my presence. But unfortunately those would have been the cougars. And not the figurative ones.

A few years later, again after a meeting, I drove up to the side of one of forest covered mountains and followed a cascading stream. As I worked my way, I had to cross the stream a few times. And it was deep and fast enough that if I fell in, it would have had its way with me. Meaning banging me around for about ten feet before bouncing me hard against one of the many boulders. Once, without notifying anyone, they would have started looking for me the following day. And there was the signage of course.

Keep watch for cougars.

Smart phone dopamine doping

I fondly remember the first cell-phones. And by cell-phones I mean the old brick sized cell phones that would come with their own power supply the size of a car battery. I would constantly check my voice mail to see if anyone left me a voice message. I became thrilled if someone left me an electronic message and asked me to do something. I also became disappointed if there were no messages, especially after loading up my briefcase to haul this monstrosity of communications device around.

Of course with continued miniaturization, you could finally fit your phone into your pocket without having to carry a briefcase. But as the phones got smaller, the larger their impact on your overall life. When the phones finally developed the most miniature of screens, this was like mana from heaven. Texting was pointless for me when you had to type a button three times to get the proper letter to form a word. No wonder the WTF abbreviations finally started and formed part of our lexicon. Writing, became another art form slowly being lost.

A lot of people believe that the precursor of the end of civilization as we know it came with the advent of smartphones. Now you really can communicate with anyone in the world and at the same time lose the ability to relate to everyone else.

Of course, the end of civilization was to end with television, and before that radio, and before that the telegraph, printed books etc. Even Aristotle opposed writing somewhat since then his students didn’t really learn something if they didn’t have to memorize it. This little bit of wisdom may still apply today since you can search the world’s knowledge whenever you want to and you don’t really have to understand it. The context of everything then becomes a little bit more lost.

The intellectual train comes with a bunch of preliminary cars such as facts, information, knowledge, wisdom and finally you get to the locomotive we all want to reach, enlightenment. But with our attention span fallen below 8 seconds, which is lower than the common goldfish, enlightenment may only come as a result of a search engine.

We are so anxious to get our little dopamine fix. I used to play Black Jack a fair bit. This was the one game where you could get closest to beating the house. Rest assured, you think you can beat them over the very long-term, but you can’t. That’s why they have such great hotels in Vegas. Any money leakage is quickly squashed. I had a fairly simple system of knowing all the odds and pressing the advantage whenever the cards starting going my way. It paid for a couple of trips, but I got out when the going was good since the long game always favors the house. But I remember the chemical effects. You can feel the dopamine pouring through your system whenever a good card was laid out. You win just enough to keep you completely engaged. And you can now feel this same effect whenever you agree to push notifications from your favorite social media.

I had my computer bing whenever a new email came in. I would drop, electronically, whatever email I was working on in order to read the new email. My concentration was slowly being eaten away as I agreed to the new hormonal influx from the new email. It would take me a minute or two to get properly focused on whatever I was doing before however.

Now you can get notifications whenever something new is posted, or new comments on that post, or if someone comments on your post, or if someone comments on your comments. Time keeps getting chopped up more finely.

After a while it seems that you might have an angry squirrel in your pocket since your phone constantly chitters at you. Begging for a bit more attention. If this is making people happy, then more power to them. But this seems like a short jump to Brave New World when the population turned to Soma instead of facing reality. Attaching electrodes directly to the brain seems to be simpler and faster route than having to go through the smart phone interface.

Eventually things got bad enough that I turned off all push notifications from any sort of social media. This recapture of free will became most liberating. I feel that being able to focus on one thing at time increased my creativity as I go through various scenarios. This reduction in dopamine happiness likely had other positive ramifications however.

Scientific American provided some research on the difference between happiness and well-being. There appears to be a synergistic effect where one can increase the other but they remain different. One can be happy watching TV even though you would be better off learning something new or completing that homework assignment. By changing your focus from short-term tactical happiness you can then focus on the long-term strategic happiness.