Here's your choice: Gisele Bundschen blaming hubby Tom Brady's receivers for New England's Super Bowl loss, or Billy Cundiff of the Ravens taking personal responsibility for missing a short field goal that would have sent the AFC championship game into overtime.  It's obviously no choice at all, yet how many of us react like the supermodel when something goes wrong at work? 

As Michael aptly notes, "the 'blame-somebody-else' culture is terribly destructive for a business" as well as a football team.  That's an important lesson whether you run a business or work for one.

My bride returned home in due course, and about three weeks later those elusive voice mails all showed up simultaneously.  Ain't technology grand?

I've seen the same kind of delays from time to time over the years, but they have become less frequent.  I have used another cell phone carrier for many years now, and maybe that has something to do with the improvement, but problems still occur from time to time.

Yesterday I was reminded of that first experience.  Having been reprimanded days ago by both a client and my son for failing to return calls, the offending voice mails both showed up on my cell phone this morning, fully a week after they were left.

Lawyers are in a service business, and our success depends upon our ability to respond promptly to our clients.  It's easy, as we pilots say, to cruise along "fat, dumb and happy" while storm clouds are gathering.  We can't be mind readers, but we can be proactive about checking in with our clients.  So pick up the phone and make contact.  The voice mail you leave could take quite a while to get where it's supposed to go, and that could leave someone important wondering why you haven't been in touch.

What caught my eye was this post on considerations in jury selection in the Roger Clemens perjury trial.  There's nothing like a high profile case involving a celebrity to bring the subtleties of law practice into focus for the layman.

As the post points out:

In the end it is the opinions of these few individuals that will matter: not Clemens, not the US Attorney, and respectfully not even Judge Walton’s opinion compares to the power of a jury.

And so the post lists many things that both the prosecution and defense must consider to determine the types of citizens whom they want --- and as importantly, do not want --- on the Clemens jury.  (I was particularly amused by the tongue-in-cheek suggestion that Clemens would want both Barry Bonds and Alberto Contador as jurors, if only they were available.  The jury, I suppose, is still out on Lance Armstrong.)  (Sorry.)

While the Clemens case is a criminal prosecution, every lawyer in every jury trial, including employment law civil jury trials, is faced with the same decision as the lawyers in that case.  Who do we want on the jury?  Who do we not want?  What kind of person is likely to be sympathetic to a plaintiff who claims that she was discriminated or retaliated against?  What kind of person is likely to think that corporate wrongs against employees should be conservatively --- or lavishly --- compensated? 

It's worth 2 or 3 minutes to read the post on the Clemens case, because it will help to bring into focus the ways in which different kinds of jurors can view the same facts in different ways and reach completely different conclusions.  And whether you are an athlete, a wronged employee, or a business owner, in that difference often lies the gulf between victory and defeat.

So, in honor of the season, for the next several Mondays our attention will turn to  cinema in the courtroom, pairing Hollywood with the law.

We kick it off with a scene from . . . .who else? . . .  The Three Stooges, from "Disorder in the Court."  Unfortunately, we can only link to it.  Take the time to follow the link.  The scene is short, and you won't be disappointed.

Enjoy.

Off-topic, years ago I did some canoeing in Minnesota's Boundary Waters Canoe Wilderness.  The graphic on Marylee's blog got me thinking that it would be fun to stage a return trip.  But I think I'll wait for the summer.

"Oh what tangled webs we weave,

When first we practice to deceive."

So Sir Walter Scott told us in Marmion.  (Yes, I too thought it was from Shakespeare, but a little research quickly disabused me of that notion.)  

Aaron Siebers, a Blockbuster employee in Colorado, apparently missed the class that covered the consequences of deception and tangled webs.

In a nutshell, Mr. Siebers went skateboarding before reporting to work, while wearing his uniform pants.  He fell and ripped them.  Concerned about the potential consequences to his employment of reporting to work in torn trousers, he tried to solve the problem by stabbing himself in the leg.  With a knife.  Really.  And he called the police and told them that he had been attacked by three men, explaining the wound.

The police quickly determined that Siebers' story was as full of holes as his pants.

Siebers has been criminally charged with filing a false report and obstructing police.  We don't know whether he got fired, but employment may be the least of his problems now.

Here's the full story, courtesy of The Smoking Gun.

Off topic?  Absolutely.  Enjoy it anyway.  Happy Labor Day. 

Who said the law can't be fun?

Now, if we could just figure out what Tribbles might teach us about HR issues  . . . . . No, we don't want to go there.  But enjoy Dan's post anyway.  

Business courtesy boot camps?  Isn't that more than a little oxymoronic?  More to the point, have so many of us forgotten the simple manners that our parents taught us?  Or have we just forgotten that they apply to the workplace as well as social situations?

When the always gentle Miss Manners hears about this, she'll soon be reaching for her favorite civilized beverage.

And for all you Brad Chase fans, don't worry quite yet.  He's appealing the decision. 

Zoeller traced the source of the offensive entry to Josef Silny & Associates, a Miami-based education consulting business.  Unable to sue Wikipedia, Zoeller sued Silny to identify the author.  LawyersUSA quotes Zoeller's attorney as saying that "the Zoeller family wants to take a stand to put a stop to this.  Otherwise, we're all just victims of the Internet vandals out there.  They ought not to be  able to act with impunity."  He has a point.  

Turnabout being fair play, Zoeller's Wikipedia entry now contains a reference to the incident and to the litigation.

But are there broader implications?  If the Silny firm failed to adequately control the use of its office computers so that they could be used to defame someone, might not Zoeller have a claim against the company as well as the author?

This is another good example of why all businesses that use computers and allow their employees Internet access should review their computer policies or, if they don't have one, get one right away.  Otherwise, like Josef Silny & Associates, they might end up with an unexpected legal bill --- and possibly a liability.

Strategic HR Lawyer --- a well-updated blog that contains the latest in employment law and strategic HR information. 

Transgender Workplace Diversity is a blog maintained by Professor Jillian Weiss of Ramapo College.  It is highly specialized, focusing on the HR implications of the employment of transgender individuals.

The Pennsylvania Employment Law Blog is a new offering from Russell, Krafft & Gruber, LLP, and does for Pennsylvanians what the New Jersey Employment Law Blog strives to do for New Jersey businesses and business people.

All are well done and worth a visit.

"The survey found that owners who do not provide retirement benefits fail to do so for a variety of reasons. Fifty-four percent said they didn't have enough employees to make it worthwhile, 28 percent cited a financial inability to match contributions, and 26 percent blamed unstable business circumstances."

This also raises the important question of what small business owners are doing to fund their own retirements.

It's not all that surprising that 401(k)'s are not used more widely by small business.  They're relatively expensive and complicated to administer.  And they usually lock you into matching contributions that you don't control: the amount that the employer must pay in matching contributions depends on how much the employees contribute.  That can strain the finances of a smaller company with limited cash flow.

On the other hand, there are other options, such as SEP-IRA's, that give the employer more control. The employer makes 100% of the contributions, but only when and in amounts that it chooses.  If the money is not available, there's no obligation to contribute at all.

Good information on retirement plan alternatives for small employers is available from brokerage firms and mutual fund companies, such as Schwab and Vanguard.

There's little as boring as tax law, so here's the gist of it, sans the technical details. The case is Murphy v. IRS, decided on August 22, 2006. Money damages awarded for personal injuries historically have been treated as exempt from income tax. In pure personal injury cases, such as car crashes, this has been easy to apply. The courts have had a more difficult time with employment discrimination cases, in which the question is whether damages replace lost income, compensate for personal injury such as emotional distress, or a combination. Language in a 1996 statute presumptively treats all recoveries by plaintiffs in employment cases as taxable income. No one was happy about this except for the IRS, which stood to collect more money.

In Murphy, the court found that damages awarded to a fired employee for emotional distress and damage to her reputation are not income, and thus are not taxable. What is making waves, though, is the court's finding that it is unconstitutional for the IRS to consider such awards to be income.

Will the Supreme Court rule on the question? Right now no one knows, but employment lawyers are scrambling to take advantage of the ruling for their clients.

Never mind that there are millions of people who already work or think about work nearly 24/7. They're called the self-employed, and generally they're neither addicted nor mentally ill. They may get stressed on occasion, but that comes with the territory and is generally preferred to the stress of having to deal with a boss.

So what are the worriers at the Insurance Journal up worrying about at night? That technology addiction will result in a flood of litigation, of course! And, I suppose we can infer, higher insurance premiums and higher payouts on policies. (By the way, no technology addiction lawsuits have been filed --- but it could happen, you know.)

You decide for yourself what you think of the technology addiction theory. But just for the sake of argument let's indulge the assumption that it's a real problem. The "solution" proposed by the article makes sense: "employees [should] walk away from their Blackberries, email, and cell phones while on vacation." Hopefully we're all still rational enough to agree on the wisdom of that advice, whether we're technology addicted or not.

It's thought-provoking stuff and worthy of your time.

I have had my own law practice for more than 16 years, which presumably qualifies me as an entrepreneur, and I got some wrong. Here's a direct link to the quiz. Try it and see whether you are suited to take the plunge into running your own business.