The Rule of Law Is Not Enough

The Rule of Law Is Not Enough

The Trial

I was called for jury duty three times in two years always in spring or fall consulting busy-season.

“So just when would be a good time for you, Mr. Culler.”

“I’m free the three days before Thanksgiving, your honor.”

“Fine. The clerk will schedule you. Next.”

At the county courthouse at 8:00 a.m. on a November Monday, I was impaneled as an alternate on a trial for which jury selection completed Friday. The same judge welcomed me by name and released another juror, to “prepare Thanksgiving dinner” and directed the plaintiff’s attorney to begin his opening statement. “Try to be brief, counselor.” He wasn’t.

It was a civil trial, a dispute between two neighbors. The plaintiff’s attorney was fiery, “. . . will show that the defendant, Mr. Charles T____, did through negligence and willfully malicious intent cause the injury of my client, Mr. Robert J_____. . . such that he is no longer able to earn his living. . . .“

The defense attorney was briefer. He said there was no negligence and that the defendant “took actions to prevent the plaintiff from annexing his property and that any injuries sustained by the plaintiff were caused his own actions.”

The evidence was presented by both sides over the next two days.

The two neighbors lived in the hills outside the city. Bob’s family lived there for generations and his father sold Charley the land on which he built his house. Bob was a plasterer, Charley had a landscaping business.

Bob asked Charley if it would be OK if he parked a car on the flat space at the bottom of Charley’s property when they had guests. Charley agreed. When Charley didn’t mow the spot, Bob grew impatient and mowed it. Then Bob paved the parking spot on Charley’s land, without asking Charley. Acrimony grew. Angry words flew between Bob and Charley and their spouses. There were “always cars parked there” making it hard for Charley turn intro his driveway with his landscaping truck.

One day Charley came home to find that Bob had erected a basketball hoop on two 6”x 6” posts cemented into the ground. Charley’s driveway was blocked by cars owned by Bob’s son’s friends who were annoyed that Charley was interrupting their three-on-three basketball game. Charley exchanged rude words with the boys and told Bob to “Take that hoop down and never park there again.”

Days went by, more rude words were exchanged, but no action taken and b-ball games lasted until late at night. Someone set up lights on the “court.”

Charley’s chainsaw cut the hoop stand at ground level; he moved it to Bob’s property and then dumped a four foot high pile of dirt and stones on the asphalt on his property, eight feet from the road rendering the space (and “court’) unusable. More inappropriate language was  exchanged.

About a week later, Charley answered the door to a policeman who informed him there had been an accident on his property. He came down to find Bob standing next to his car the front two wheels of which were on the pile of dirt and stones. Much swear-laden yelling ensued. Bob wanted to press charges because Charley had “created a safety hazard.” Officer D____’s report described the pile of dirt as “completely off the road” and concluded that Bob “either lost control of his vehicle or drove off the road on purpose.” The report concluded there was no crime, nor safety hazard. The dirt pile was visible for 100 yards. Someone took pictures of the approach, both driveways,  and the car on the dirt pile with a measuring tape showing the distance from the road. The officer said he “encouraged the neighbors to resolve their differences without involving law enforcement in the future.”

Bob sued Charley for one million dollars for injuries, pain and suffering caused by Charley’s negligence and malicious intent. Testimony took two days.

Tuesday at 5:00 p.m. the judge charged the jury to begin deliberations that evening because of the holiday. Dinner would be served at 6:00 p.m. He reminded the jury that our job was to follow the law. Was there negligence? Was a safety hazard created?

“There’s been some emotional testimony, but there is also documentary evidence, police reports, deed plots and photographs. Perhaps you can reach a verdict this evening and have tomorrow free,”  That was optimistic. We the jury were undecided when they sent us home after 9:00 p.m.

The Deliberations

I used to tell this story being judgmental about some fellow jurors  who were influenced by the emotions in the case.

“Bob really hurt his shoulder. He can’t do work over his head and ceiling work is more than fifty percent of his work as a plasterer.”

“There is no way I would let anyone speak to my kid like that. Charley’s lucky it wasn’t me.”

Some didn’t understand the law. “Let’s fine them both $10 and tell them to be better neighbors.”

“That will a hung jury and they’ll have to try the case all over again.”

“Why don’t we find for the plaintiff, but only award him $1.”

“Because on appeal the verdict of negligence will stand, and only the amount will be appealed, and if there was negligence, then $1 is not a reasonable award.”

At 5:00 p.m. on Wednesday, we the jury agreed that the documentary evidence, photos and police report indicated that the pile of dirt was off the road, on Charley’s own property. In spite of our misgivings about disrespect and bad language, Charley could legally place the dirt there; there was no negligence. We found for the defense.

The plaintiff’s lawyer requested to “poll the jury,” ask us each how we voted and why, and I was momentarily petrified, because I thought our fragile consensus had too much to do with the holiday. The judge denied his request and sent us home.

Lessons Learned

At the time, my lesson was that I never wanted to rely upon “a jury of my peers.” Too many on the jury didn’t understand the law, were swayed by emotion, and felt pressured by the press of the holiday to think clearly or make good decisions. I felt like Henry Fonda in the film “Twelve Angry Men,” the 1957 Sidney Lumet film, which is arguably the best example of one man using reason to overcome emotion and ensure that justice prevails.

Yeah, but. . .

Feelings are important especially when considering issues of intent and malice afore-thought.  Charley did have malice. Bob did hurt himself, at least, if we believe doctor’s report. I still believe we made the right decision.

Upon Further Deliberation

Thirty-five years later, I have been distressed wondering about the effects of the wars the world and I revisited this case, because that’s what Bob and Charley had – a war, a small war perhaps, and as far as I know no one lost his life – but a war, none-the-less.

I don’t know what happened after the trial with Bob, Charley, and their families, but I don’t imagine that their relationship improved easily. I doubt that the legal remedy led to reconciliation and bonhomie.

One man felt ownership and protectiveness of his land. One said “my father owned it long before you got here. Your land is my family’s legacy.”

One felt a favor had been abused. The other said, “you weren’t using it and besides I improved it.” The favor had become a given, expected, deserved.

Both felt angry and disrespected. Words hurt and destruction of property hurts. Injuries are long-remembered. Bob talked bitterly of his son’s humiliation being called names in front of friends.

There was recriminatory testimony, which started with “They always. . .  or They never. . . .”

The law didn’t really serve either family. True, Charley won that case and he avoided a million dollar judgement, but the conflict was likely to go underground, beneath the visibility of the law.

Some of my early work as a consultant was in intergroup conflict resolution. Rules, what should happen, never resolved conflict. What worked was if each party could listen to the other side, and be able to state the other party’s point of view and the feelings associated with it.

Then the parties could establish accepted behavior and a grievance process when things went awry. Even that didn’t always work, but it was a start.

The court could have mediated conflict resolution with Charley and Bob, but that really isn’t the role of the court. Family and friends could have an intervention. But only Charley and Bob could commit to make it work.

I am unsure what it would take for Bob and Charley. What about the rest of us?

Consulting: Changed and Changing

Consulting: Changed and Changing

In the beginning

I started as a consultant in 1980. I retired from consulting in 2018, a lifer in the industry. To say the consulting industry changed a lot during my career is quite an understatement

Consulting always involves change- new customer needs, new strategy, new operating processes, new technology, innovation, improvement and yadda-yadda. Consultants sell change, but let’s observe the astonishing change to the consulting industry itself.

Computers changed everything

Consultants traded information long before the “Information Age.” In the 1880s Arthur D. Little sold his catalyst research and Frederick Winslow Taylor built a practice on time and motion optimization-the “one best way.” Consultants sold proprietary knowledge and problem-solving processes.

Storing Information

Consultants became information hoarders. Industry information demonstrated credibility; earlier project findings shortened analysis time. Consulting firms still save data, but they’ve moved from huge floorspace libraries, monitored by librarians who updated Dewey-decimal-system-like card catalogues to Lotus Notes and SyQuest disks to their own server farms (the Cloud) to store information available to consultants’ laptops, tablets, and smartphones.

Presentations

In my career, presentations progressed from acetate slides, made with press-on Letraset letters and hand-drawn graphs through flipcharts to PowerPoint slides. I know consultants who call PowerPoint slides “panels” from the days when presentations were leather bound into a flip-book of thick posterboard “panels.”

PowerPoint shortened presentation prep time. You could literally make a change seconds before presenting.  I’m not sure that added to quality, but it did satisfy the partner’s need to wordsmith.

Now, presentations include video links and onscreen voting and analysis, and, and, and. . . too often demonstrating the Murphy’s Law effect connected to live demos.

Analysis

My first project analyses were done on adding machines and Texas Instruments hand  calculators (TI-42). I used graphical analysis a lot, plotting two sets of data on a matrix to hint at a relationship. Early on you could get time on the mainframe to do regression, but you’d better have more than a hunch because such time was hard to get.  I experimented with VisiCalc, one of the first spreadsheet programs to do a database task without success. Now middle school kids are better on Excel than I am, and statistical analysis programs process huge files of so-called “Big Data.”

Changes to the Consulting Project Work

Consulting is a boom and bust business. Times look good, consultants create a new strategy; times look not-so-good consultants improve processes and cut costs. The names of the frameworks change. Strategy progressed from the Growth-Share Matrix to Five Forces of Industry Competitiveness to Blue Ocean; Improvement morphed from Quality Circles to Total Productive Maintenance to Reengineering, to Lean Six Sigma to Agile. The desired outcomes, growth or profit, are the same no matter what you call the solution.

During this forty years, there have been some other drivers of consulting work:

  • The bottom line: The growing emphasis on shareholder value, promoted by monetarist economist Milton Friedman, raised CEO pay, and created “rock-star CEOs,” who move from company to company, hiring large consulting firms to help them change the company.
  • One World: Business globalized creating opportunities for global organization design and off-shoring of manufacturing, data centers, and customer service operations. Now the backlash, localization and tribalism, is creating some consulting firms opportunities to reverse the process.
  • Tech Bros Rule: The emergence of computer technologies created huge growth in the tech industry, behemoth companies, and an explosion in consulting service offerings like, data mining, and digital transformation. The democratization of information has also made it easier to start a small consulting firm or go independent. There are now available third party services for analytic frameworks and industry knowledge.
  • Buy Don’t Build: The diminishing pressure on anti-trust enforcement accelerated merger and acquisition activity with the accompanying consulting service offerings, due diligence, and post-merger integration.
  • The Pill: The explosive growth of the biotech and pharmaceutical-driven US healthcare, a market without competitive price controls, created a sales process bonanza for some consulting firms.
  • “Money, It’s a Gas”: Banking and financial services moved from stodgy backwater to fee-driven financial engineering private equity operations that allowed some consultants to share in the gains of ownership.
  • “Drill Baby Drill:” All of this growth has needed energy, so consultants who have worked in oil and gas have prospered. They same consultants may have opportunity in renewable energy in the future.

The work of some consulting firms to these drivers may have contributed to negative effects on society, e.g., financial collapse, addiction epidemics, and environmental damage.

The Growing Importance of “People Stuff”

Maybe it should be obvious, but nothing changes unless people do. A strategy is just a plan, a new technology is just a gadget until someone does something different. I evolved into working on the people side of change, quicker than some, slower than I should have. The consulting industry has caught up now.

The people changes of this period are enormous. There are many more women in the workforce. My generation, post-war Baby Boomers are retiring looking for second acts. Generations that follow  (X, Millennials, Z) are smaller and more diverse and have some different ideas about work.

Consulting firms have started to adopt the practices of organizational development consultants. Many have acquired smaller firms to help them become more people focused.

How Will Consulting Change in the Future?

I don’t know. I imagine that:

  • The digitization of the industry will continue. I think that automated, machine learning systems, what we call artificial intelligence (AI), will take over certain parts of the consulting process. CRM software might integrate with problems and solutions databases to suggest potential projects. I can easily imaging Big Data mining systems being set up in companies to change strategies autonomously, (not that I think that is necessarily a good thing). No doubt presentations will get more high-tech. (Again – a good thing? Hmmm.)
  • The people-centricity of consulting will continue to grow. Technology may replace some people’s jobs and that will change the workforce contract. Can consultants help to redeploy and train people or will they resort to “rightsizing and POP (people off payroll)? There is a backlash against diversity programs at the moment, but will consultants give in to that or help clients gain the commitment and contribution of everyone?
  • Big consulting firms will get bigger; small firms and independent will proliferate. The larger firms will acquire the middle tier, but the availability of frameworks, industry knowledge, and analytical software will make it easier to be on your own. Communications software will create opportunities for form network of independents.
  • People centricity will come to consulting firms themselves? For large parts of my career, I flew out to a client site Sunday afternoon and flew home Friday night. Zoom meetings, and four day work weeks, more client involvement can make the job less onerous.
  • Consulting firms will work on solving the unintended consequences of the last forty years. We need a balanced portfolio of energy production, sustainable (reuseable) manufacturing, local food and shelter production, and a way for people to speed learn and adapt to mind-shaking change. Consultants can take the lead on these issues.

OK, I admit I’m feeling optimistic today. I’ve also been out of consulting for the last six years, so I may not know about the impact of the global pandemic, international conflict, the changing attitudes toward work, or even the infiltration of new technologies in the industry.

What about you? How do you see consulting changing in the future?

 

 

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Change and Consequences

Change and Consequences

Historians and Visionaries

One looks back and crafts a story from events; one looks forward and crafts events from a story.

To lead in times of dramatic change is to be a see-er (seer), to both scribe and scry. This leader peers back through the brume and draws forth past strengths and traditions to carry forward, “This is who we are and this won’t change.” The leader also imparts hope and inspires new actions and events, “This is who we will become.”

I’ve come to believe that we are at a unique inflection point, one where we can correct the consequences of humanity’s past choices and shape the kind of future we want. Humanities leaders and influencers can choose to do what we’ve always done or plan a better future for all. We’ll need both crystal balls and mirrors. Are we up for this challenge?

My career helping leaders make strategic change was mostly in the context of helping a company innovate or improve and then integrate those changes across the organization. In strategy or organization design workshops I encouraged leaders to first accept the need to change and then to plan what would change and when and then array people and processes to meet the challenge. I taught methodologies to innovate or improve. I created discussion and communication processes to ensure transparency and foster unity. Sometimes I was part of a program management office to ensure that the change stayed on track.

In these sessions I differentiated between managers, steady state shepherds of people and performance,  and leaders, responsible for providing direction and attracting followers. ”Of course, you fill both roles,” I intoned.

At times the change seemed monumental to those involved, but the changes my clients faced weren’t earth-shattering. Most companies might have added a product or changed a process or two, but they stayed in the same industry. British Airways, provided better service after privatization and made some money, but they were still an airline. BP was safer, but they still pumped oil. Perhaps the most traumatic changes were in post-merger integration where lifetime workers had to assume a different identity, but their work was much the same.

Past step-changes and effects

There are periods in human history of truly dramatic change. The shifting climate at the end of the last Ice Age, brought Neanderthals and Cro Magnon peoples together in the Middle East. How did they communicate? They probably found a way because today many contemporary humans have significant Neanderthal DNA. Neanderthals coming from the glaciated north were more hunter than gatherer. Neanderthal made beautiful and practical tools, many for killing and preparing food from animals. Cro Magnons apparently had a more plant based diet, more nuts, and seeds and veggies. In the Fertile Crescent somewhere 11,000 to 19,000 years ago their descendants figured out how to grow food. They moved from foraging to farming.

The growth of agriculture, meant people stayed more in one place. They domesticated animals, built fences and walls, and perhaps developed a more local sense of identity. Perhaps hunter gatherers, as they roamed, were more sensitive to resource use -when water, flora and fauna got scarce they moved on. Perhaps the foragers had to talk and negotiate with whomever they met and were more open of heart and hand. Was there a gatherer tongue like the trader tongues (Lingua Franca) of later years. I dunno; despite how my kids tease me (“Pop’s older than dirt”), I really wasn’t there.

My guess is the more stationary farmers, found a seed that worked and stuck with it, (bye-bye biodiversity). They domesticated animals both for food and to help with the work. That is one commonality in humans, we are always looking for ways to make transportation, travel, and work easier. Can you blame us – imagine plowing a field before the horse-drawn plow.

Making work easier, the first mechanization, the wheel, showed up in Sumer around 3500 BCE. and not just in Mesopotamia, but in what is today Eastern Europe and the Indian Indus Valley. Imagine the changes the wheel started, in work  (bigger than the spreadsheet) and travel (more earth-shrinking than Frequent Flyer miles).

Early people built walls to keep their animals in and wild ones out. That created a local sense of identity, and the walls, might have led to an us-vs-them ethos. Probably humans have always fought other humans – “that’s my hunting ground, buster” – and the wheel just made it easier and faster to go steal your neighbors’ food and womenfolk. Soon you have empires, Sumer, Egypt, Babylon, Greece, Persia, Rome, to name a few.

Farming required record keeping, written language arrived around the same time. Traders also liked records – lists of accounts (double entry accounting had to wait until either the eleventh century (Jewish merchants in Spain) or the thirteenth century (merchants in Genoa, Florence, and Venice). Both the Indians and the Koreans also lay claim to debits and credits, but the Phoenicians only had lists of accounts of tin from Cornwall, and building materials for the founding of Carthage. The Phoenician purple-sailed coast-hugging multi-rower galley is the first in a line of earth-shrinking inventions, square-sailed, open-ocean galleons, clippers and steamships. The 22-letter Phoenician alphabet (all consonants) was the first written language of trade.

Written language required specialized skill – scribes. The scribe trade union existed pretty much from 3500 BCE until the late fifteenth century. Scribes were attached to people of power, kings and priests – his-stories and sacred writings. In 1448 Johann Gutenberg invented moveable type and the printing press and partnered with merchant Johann Fust in Maintz in Germany to print a bible.

This was the first democratization of information. The technology needed no scribes. Within one hundred and fifty years came the Reformation, the Renaissance, the Scientific Revolution and the Age of Enlightenment.

Writing down that science-stuff made it easier to build on each other’s ideas, “standing on the shoulders of giants,” so to speak. So then:

  • Steam engine and pullies to internal combustion engine and gears,
  • Candles to whale oil to rock oil to electric lights,
  • Water, wind, burning coal, and oil, and gas, to nuclear fission,
  • Verbal to written language, to scribe specialization, to moveable type, to linotype and photo-offset presses, to computer typesetting, to word processing to Chat GPT.

Our defining characteristic as humans is continually striving to make our work easier and faster. First we domesticated animals and farmed; then we mechanized and automatedand we’re still doing that.

Humans live a comparatively short life – not as short as it used to be -but even if you hope, as I do, to become a non-drooling centenarian, it ain’t a long time on the watch of the Universe. So human short-term focus is understandable. We have used resources like there is no tomorrow, because for us there isn’t.

Sometimes we use our drive to innovate for our worst impulses: Greed and individual gain vs. collective good, power, control, and coercion, vs. collaboration and compassion. We use our best inventions for ill, the wheel for chariots, printing for propaganda, airplanes for bombing and strafing, fission for Nagasaki, artificial intelligence for “deep fakes.”

Planning for the Future

Not all human cultures live this way. Indigenous people in North America consider seven generations when making decisions about that which is held in common. Cultures with a strong ancestor worship component to their spiritual life often live as if someone watches over them, and raise their descendants with the expectation that children must make their ancestors proud.

In Western cultures the one arena where humans have consistently engaged in multigenerational thinking is in our ”Edifice Complex,” the buildings that commemorate our relationship with the spiritual world. Megalithic peoples built Stonehenge and New Grange over generations. Pericles planned the Acropolis project to be completed fifty years later and after his death. The Milan Duomo took 579 years to build; Cologne Cathedral was under construction for 632 years.

Now is the time for some “cathedral thinking” in service of the future of humanity.

At one level we know what humanity needs:

  • Water and food and, shelter and clothing – not just for some of us, but for all – and not just this hour, week, century, but unto seven generations. This by itself is hard.
  • Community – reestablishing the connections between us that language, and writing, and radio waves, transistors and chips were meant to engender, but stuck our noses in books and glued our eyes to screens. Stories and songs, art and music can show us connections and commonality, but we might need to share them more in a circle holding hands.
  • Growth – I’m not talking about ever more possessions, nature gobbling earth-ownership and fifteen minutes of electronic adulation for all – but learning, perspective and meaning for the many. Self-development that enhances others.

So leaders. . . see-ers of the past and future. . . historians and heralds. . . scribes and scryers . . . help us use this moment.

Your ideas are welcome.