By Don Keenan
By now, if you are not, you will be, familiar with the employment stool. Understand that all employment stools have three independent legs:
Stool created by David Hoey
MAJOR TRUTH
Please understand the power of the word independent. There are three legs because each is separate and distinct and stands on its own. Each leg is interconnected with one another because of the phenomena that we all know; a missing leg on a three-legged stool causes the stool to fall.
There are 4 powers of the employment stool:
FIRST POWER OF THE EMPLOYMENT STOOL: SIMPLICITY
The stool is mind numbing simple. The Reptile© loves simple explanations and visuals.
SECOND POWER OF THE EMPLOYMENT STOOL: BUBBA KNOWS IT
Every single Bubba or Bubbette on the planet has experienced the three-legged stool. Don’t matter if you’re slinging burgers at McDonald’s or doing some top secret job at a nuclear power plant, everyone had to go through some form of qualification process, followed by a training program, and then be subject to supervision of someone else.
Don’t get tripped up on the last leg being supervision and think it doesn’t apply to everyone. It does. Bob Dylan sang years ago one of my favorites, “Everybody serves somebody,” and in it he sings: (I love this so much y’all getting all the verses):
“Gotta Serve Somebody”
Bob Dylan
You may be an ambassador to England or France
You may like to gamble, you might like to dance
You may be the heavyweight champion of the world
You may be a socialite with a long string of pearls.
But you’re gonna have to serve somebody, yes indeed
You’re gonna have to serve somebody,
It may be the devil or it may be the Lord
But you’re gonna have to serve somebody.
Might be a rock’n’ roll addict prancing on the stage
Might have money and drugs at your commands, women in a cage
You may be a business man or some high degree thief
They may call you Doctor or they may call you Chief.
But you’re gonna have to serve somebody, yes indeed
You’re gonna have to serve somebody,
Well, it may be the devil or it may be the Lord
But you’re gonna have to serve somebody.
You may be a state trooper, you might be an young Turk
You may be the head of some big TV network
You may be rich or poor, you may be blind or lame
You may be living in another country under another name.
But you’re gonna have to serve somebody, yes
You’re gonna have to serve somebody,
Well, it may be the devil or it may be the Lord
But you’re gonna have to serve somebody.
You may be a construction worker working on a home
You may be living in a mansion or you might live in a dome
You might own guns and you might even own tanks
You might be somebody’s landlord you might even own banks.
But you’re gonna have to serve somebody, yes
You’re gonna have to serve somebody,
Well, it may be the devil or it may be the Lord
But you’re gonna have to serve somebody.
You may be a preacher with your spiritual pride
You may be a city councilman taking bribes on the side
You may be working in a barbershop, you may know how to cut hair
You may be somebody’s mistress, may be somebody’s heir.
But you’re gonna have to serve somebody, yes
You’re gonna have to serve somebody,
Well, it may be the devil or it may be the Lord
But you’re gonna have to serve somebody.
Might like to wear cotton, might like to wear silk
Might like to drink whiskey, might like to drink milk
You might like to eat caviar, you might like to eat bread
You may be sleeping on the floor, sleeping in a king-sized bed.
But you’re gonna have to serve somebody, yes indeed
You’re gonna have to serve somebody,
It may be the devil or it may be the Lord
But you’re gonna have to serve somebody.
You may call me Terry, you may call me Jimmy
You may call me Bobby, you may call me Zimmy
You may call me R.J., you may call me Ray
You may call me anything but no matter what you say.
You’re gonna have to serve somebody, yes indeed
You’re gonna have to serve somebody,
Well, it may be the devil or it may be the Lord
But you’re gonna have to serve somebody.
The judges and the state bar supervise us, the President of the United States is supervised by Congress and the Supreme Court and vice-versa. The CEO is supervised by the stockholders. The farmer is supervised by the bank and the marketplace. Each and every soul who does anything in this country is supervised; even the welfare recipient is supervised by the caseworker.
THIRD POWER OF THE EMPLOYMENT STOOL: IT LAUNCHES THE SYSTEM FAILURE
The next power of the three-legged stool and that is it’s the guts, at ground zero it lays out the system failure case. Invariably when I mentor one of my referring attorneys and they run into a roadblock about where to find the system failure in the case, I always tell them it’s in one or all of the three-legged stools unless you prove otherwise. Rarely is it proved otherwise. Somewhere in the conveyor belt of screw-ups is either an unqualified person or an inadequately trained person or an inadequately supervised person.
In one recent case, my referring attorney told me that they had just discovered there was no training program in place at the plant and she wanted to know what she should about that. My response was to just go home that night, have a good drink, a stogie if she cared to, and celebrate. Case over. System failure found.
FOURTH POWER OF THE EMPLOYMENT STOOL: IT’S MOST OFTEN FIRST IN TIME
This brings us to the final power of the three-legged stool. By now you should be familiar with the reality of Bubba almost always finding the first in time breach to hang the liability hat on. It virtually never fails that when you lay out a timeline and a narrative to a focus group and ask them if this bad outcome was preventable and if so when, they virtually all go to the first in time event or omission.
Thus when you have one or all of the three-legged stools in a case, this is usually the first in time event or omission. If the truck driver had not been hired because he was unqualified then none of the other stuff matters. Bubba sees that if the driver wasn’t qualified, that’s it. Strict liability thereafter, case is over. Now Bubba will, of course, listen to all the evidence, but will clearly use that evidence as mere confirmation about how brilliant he was to determine the case was over when the driver wasn’t qualified.
SQUEEZING THE ORANGE
Now that we’re on the same page with the three-legged employment stool, let me address “squeezing the orange.” First, as you probably suspect, I don’t believe most lawyers do a very good job of squeezing the orange. Here are a couple of reasons;
1.There are a lot of lawyers who are so focused on the event of the case, the crash, the product failure, the malpractice, etc. They never go back in time and even think about a system failure. So the first mistake is simply not to realize the power of the three-legged stool for all of the 4 reasons outlined above.
2. Many lawyers, even when they have recognition of the three-legged stool, tend to combine the legs and not see as I tried to scream in the MAJOR TRUTH above, all legs are independent, they’re all important. Some woodpeckers look at qualifications and training as the same thing. They are not the same thing, they’re independent. Each requires a different skill set by the employer and many times we find different people do different legs of the stool. Now the biggest problem with combining the legs is that you dilute the power. It’s just like the lawyer who tells me, “Papa Don, I know what you say about trying the lie in a case, but I did, and it just wasn’t that dramatic and powerful.” Then, I find out after I talk with them, the reason why it wasn’t powerful and dramatic is because they had thrown 20 other ancillary issues into the case so that the actual lie got lost. The purpose of my blog several years ago when I said “try the lie,” (The Keenan Edge, page 50), I meant put the lie up front, spotlight shown on it and make sure the whole case revolves around the lie, not the lie and 20 other damn things.
3. So the third mistake is lumping the legs together.
4. Final mistake – not making the legs separate rules. This is in keeping with the independent strengths of each of the three rules. I have seen referring attorney after referring attorney when I ask them for the rules, give me something like, “Rule number one: A truck driver must be qualified and trained,” or “Lab techs must be trained and supervised.” Understand that when you make a rule with more than one leg in it, you’ve done what I just tried to explain above, you’ve lumped the legs together and you’ve lost the independence and the power of that leg.
Practice the three-legged employment stool squeezing the orange. It’s important because it can be a case winner and Bubba loves it.
FINAL COMMENT: A QUIZ
Now I can’t help myself, I need to ask you a question. Why do you think Bubba loves the stool and has not a single problem applying it in a case and deciding the case on it?
Now put this blog down or turn your head and think about it because I’m going to give you the answer right now:
The reason Bubba loves the stool and will apply it in a nanosecond is the power of the quid pro quo my fellow woodpeckers. It’s like the Bob Dylan song again, “We all serve somebody.” Because each and every Bubba on the jury has gone through, adheres to the qualification, training and supervision stool, you better believe that Bubba expects everyone to be qualified, trained and supervised – whether it’s a dentist, a landscape company, or the mobile ice cream truck driver. “If I went through it, by heavens everybody does too.” It’s the “I drive safe and I expect, deserve, and it’s my right that everyone else drive safe also.”
Now if you are on the road to being a superstar, I challenge you with this concept of quid pro quo as it relates to the three-legged employment stool to fashion up some voir dire questions. If you have the courage to do it send them on to me.
Bottom line: The three-legged employment stool is extremely important and powerful in the system failure case and to use it properly you have to understand the stool’s power and also avoid the common mistakes.
NOTES from DON:
1. This week I got 11 requests for codes and fortunately I had them all, for all requests. Remember a) do not guess and b) you cannot find the codes yourself. We certainly invite you to ask for codes but if we do not reply, it is because we don’t have the code.
2. We continue to get requests for referrals to lawyers in other States versed in The Reptile. We got 14 case referrals this week. There’s no charge for this service so if you need an out of State lawyer for one of your cases, just ask. There’s no charge for this service.