Category Archives: career

Fear Paralysis

I have always taken great pride in being busy, working hard, and completing a high quality work product. This is a lifelong quality that I am immensely grateful to my parents for instilling in me.  I am deeply offended when people suggest that I do not take my work seriously or do not try to do my best. By no means am I perfect! But I strongly believe I deserve the benefit of the doubt.

Although I never relish being told that I have made a mistake, I do thrive on constructive criticism. I am proud to say that I would rather learn and get better than have people walk on eggshells for fear of offending me. I feel that in general I bounce back pretty quickly from unpleasant sessions of criticism. But I am rapidly coming up on my two-year anniversary at my current job, and something that happened yesterday has me convinced that I will need to move on soon.

I won’t (indeed, ethically can’t) go into details. The gist of the situation is, I was asked to do something that included providing a document to another party. I did not recognize the document and was understandably hesitant to send it out of the office without being absolutely sure of what it was and why we were providing it. I went on an expedition to figure this out, ultimately asking my boss the question. She flew off the handle at me, angry that I had even considered the possibility that she had made a mistake. (Literally, she said “You are here to check if I made a mistake?!?” I replied, “Sure, I think everya mistake.” “REALLY?!? REALLY.”). She asked me if I could accomplish this “simple task” or if I needed to just give it back to her to do herself. I told her I was simply asking a question. She said, venomously, “Yes.”

So I went back to my office and proceeded to complete the task, and she sent me an equally venomous email about how she was insulted by my behavior and does not need me to “second guess” her. Not to mention, she CC’ed the other associate on this email although he was not in any way involved with the situation. She later went into his office, closed the door, and spoke with him for about an hour. She later opened the door and spoke about case-related matters. I know from experience that it is entirely likely she was discussing the situation that involves me, while purposely excluding me.

I really wanted to reply to the email. I even prepared a draft reply. (Having shut my office door and proceeded to quietly cry for about an hour). But, I do not believe it is prudent to fire off an email to your boss when you are upset. So I decided to wait for a day to pass to see if I would cool off. In the meantime, I went about my work for the rest of the day and received a few more emails from my boss that were much more professional and minimally polite.

I have not cooled off.  I feel she was way out of line. The gist of my email (which I still have not sent) includes (a) an apology for any insult, and a statement that n; (b) an explanation of the specific reasons why I had questions, which I failed to articulate in the row yesterday; (c) a statement that I believe my value as an attorney, in part, lies in making sure errors are not made and that I am sorry to see my employer does not appreciate that; and (d) a statement that I am likewise insulted by the implication that my actions in of service justify the negative implication that I was  “second guessing” or “incapable of a simple task.” I feel it is phrased as neutrally as possible (but not entirely neutrally). I feel I have the right to contribute to this conversation. But I am terrified of clicking “send.”

For completely unrelated reasons that will be the subject of another post, I really do not feel that I’m in the position to start looking for a new job right now, either. Neither do I want to “job hop” or leave my first attorney position in a negative light. My unsent response email closes with the phrase, “As always, my goals are to be helpful, to serve the client, and to grow professionally.” I fear doing anything that will jeopardize that. Plus, now I feel like the moment has passed and I will be perceived as stubborn and petty if I hold onto it.

I would rather have this discussion in person. There is inherent danger in putting job dissatisfaction in writing, especially to be sent directly to the person who pays you. And conversations are supposedly easier to manage and ultimately move past. The problem is, every time I try to approach my boss in person she reacts very poorly, and inevitably sends me an email that is just as hurtful afterward. I have lost all faith that she intends to establish any meaningful dialogue with me regarding our conflicts. It is this point that is pushing me over the edge. I feel I have been very realistic and patient with the fact that every employer will do things you do not like. But I am not sure how to continue to manage this situation with no hope of improvement.

So, I’m currently left in a state of turmoil. No matter how much I try to take my mind off of it I am struggling to find peace. I have no doubt that the anxiety of this situation impacts my work and the rest of my life, too. Just, ugh.

 

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Big Data & the Future of Critical Thinking

It’s 3:58 on a Friday, I’m having a pretty bad week, and can’t muster the wherewithal to do more work right now. So I am going to sit here with my Joy tea (need some Joy in my life) and my shiny new blog and write about something that I find fascinating: data collection and targeted perspective in the information age. Inspired by the comment thread to this brilliant post.

parents

parents (Photo credit: goto10)

There’s always a lot of talk about how important it is to guard your information online. There are so many people you’d want to keep it from–thieves, the government, retailers, your boss, your parents… Plus, I’m a technologically sophisticated, legally trained individual and I know full well the myriad dangers of putting too much out there. And yet, I opt in to almost every data collection scheme I come across.

Don’t get me wrong, I don’t go looking for data grabbers that have nothing to do with me otherwise. But if I enjoy a service, I virtually always permit them to share my data anonymously to “make their service better.”  Think Hulu,  Amazon Kindle Store. Netflix. Google products. Phone apps. Et cetera and ad nauseam. I love that technology is advancing to the point where I am increasingly confronted with only the things I enjoy seeing. It’s beautiful! Fun! Interesting! Gratifying! Why shouldn’t I take advantage of what targeted services can do for me? This guy gets me.

Well, there are zillions of reasons why I shouldn’t.

For one thing, how can you guarantee your data is anonymous when it leaves your grasp (or that it will stay so?) You can’t. With enough data, and enough computer power, virtually any set can be traced back to its “anonymous” donor–recently scientists released a study showing they could personally identify anonymous DNA donors with the power of the net.

And another thing, do you know what your data even says about you? Trust me, you don’t. The level of information that a third party with swaths of your prior behaviors can predict about your future behaviors is staggering. We have many laws (and in the U.S. a handy Bill of Rights) to help protect you from the government extrapolating about you based on this information. But what is to keep a multinational corporation from determining your future based on your past? Nothing. Chances are, most of the online resources you use track every single click and keystroke you do–and sometimes they might release it.

In today's society, there's a price to pay for...

In today’s society, there’s a price to pay for critical thinking (Photo credit: cesarastudillo)

There’s also the more philosophical argument–that when you permit yourself to be confronted with only the things you already enjoy, you stunt your personal growth. You fail to encourage critical thinking or creative collaboration with differing perspectives. You splinter your universe into a tiny niche where you and all of your friends are the most important, most correct, most infallible possible patrons. Is this a word we want to live in? Not in the long term. This is why critical thinking is, to my mind, the most powerful skill you can learn. It requires affirmative practice and daily tuning, but once you have it, it won’t matter how “targeted” an argument anyone can throw at you. You’ll be able to evaluate it effectively and make an informed decision about its impact on your life.

I’m still going to opt-in to targeted data collection schemes for services I use. But I hope that I can continue to stretch my critical thinking muscles and not let them atrophy. It’s the best available weapon against the gorgeous and terrifying future.

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POW…ell: Another Substantive Declaration

I complained about the Oklahoma Supreme Court issuing an opinion declaring the standard of review a “substantive right” without explanation here. The Court recently came out with another Workers’ Compensation opinion which declares a different provision substantive, but it does offer a little bit more explanation: 

“We find that 85 O.S. 2011 § 329(B), which allows the trial court to appoint an IME at any time, is a substantive change in the law that only applies to injuries occurring on or after August 26, 2011, the effective date of the statute….

 

[T]he only question before this Court is whether the statute affects the substantive rights of the parties. That is, does the statute increase or diminish the amount of recoverable compensation or alter the elements of the claim or defense by imposition of new conditions? Cole v. Silverado Foods, Inc., 2003 OK 81, ¶ 15, 78 P.3d 542, 548. If the answer to that question is yes, then our case law mandates prospective application of the law regardless of the statutory language. Ellis, 2006 OK 81, ¶ 13, 148 P.3d at 877 (citing Cole, 2003 OK 81, ¶ 8, 78 P.3d at 546).

 

In Ellis, 2006 OK 81, ¶ 1, 148 P.3d at 875, the 2001 amendment at issue imposed liability on the last of successive employers to expose a claimant to cumulative trauma. Id. ¶ 7, 148 P.3d at 876. Before the 2001 amendment, the law allowed apportionment of liability between successive insurers in cumulative trauma cases. Id. In that case we held that the right to compensation and the obligation to pay such benefits became vested and fixed by law at the time of the claimant’s injury and such rights could not be affected by after-enacted legislation. Id. ¶ 14, 148 P.3d at 877.

 

Like in Ellis, the language in § 329 substantively alters the rights of the parties because it requires employers to pay for medical services in circumstances not previously recognized, namely, before compensability has been determined. 85 O.S. 2011 § 329(B) only applies to injuries occurring on or after August 26, 2011, the statute’s effective date, even though the statutory language directs otherwise. See Williams Co. v. Dunkelgod, 2012 OK 96, ¶ 18, ___P.3d___ (determining that the Legislature’s use of the language “regardless of the date of injury” is meaningless if such language substantively alters the rights of one or both parties).”

Hillcrest Medical Center v. Powell, 2013 OK 1, prgs. 0, 8-10. So, one possible standard for substantive changes is whether the new statute requires the employer to “pay for medical services in circumstances not previously recognized, namely before compensability is determined.” It is my experience that employers and insurance companies have always frequently paid for Independent Medical Examiners prior to compensability determination, sometimes by agreement and sometimes by Order of the Court. But, my experience is limited, and I have not done any research on that point…I could be mistaken. At least now we know a little bit more about the Court’s view on the procedural/substantive distinction.


Dunkelbaaaaad.

This is the first of what I hope will be a growing number of posts on this site: brief analysis on current points of law. The topic in question here is the retrospective application of newly enacted statutes to cases begun prior to the effective date of those statutes. The jurisdiction is Oklahoma.

The Supreme Court of Oklahoma, in an as-yet-unpublished opinion (Williams Companies Inc. v. Dunkelgood, 2012 OK 96), held that applying 85 O.S. sec. 340(D) (eff. 8/26/11) to a case accruing before the effective date “would allow the unconstitutional abrogation of an accrued right.” Williams Companies Inc., 2012 OK 96, par. 18. The accrued right at issue is the standard of review. The Court explained that “[g]enerally, a statute or its amendments will have only prospective effect unless it clearly provides otherwise.” Id. But the Court ignores the explicit language in 85 O.S. sec. 340(D), which renders the provision applicable “regardless of the date of injury.” If that language does not “clearly provide otherwise,” I’m not sure what does.

The Court explains “the standard of review…is determined as of the date of injury and is a substantive right which remains unaffected by later-enacted legislation, despite statutory language to the contrary.” Williams Companies Inc., 2012 OK 96, par. 18. The Court proclaims the standard of review a substantive right without explaining why this might be so. Moreover, the Court appears to have ignored relevant case law on this account: “Because section 3.6(C) is an amendment ‘in the nature of a directive’ to the appellate courts rather than an amendment affecting ‘the substance’ of a workers’ compensation claim, we find it is a change in the ‘mode of procedure’ subject to retrospective application.'” Mobile Mini, Inc. v. Dugger, 2011 OK CIV APP 31, par. 25. Mobile Mini is a Court of Appeals case and is not bindingly precedential, but it is persuasive and directly on point.  It is also directly contradicted by the Williams Companies opinion and to my mind WiIliams Companies ought to explicitly overrule it.

Could it be that no one brought Mobile Mini to the Court’s attention? It seems doubtful, but Williams Companies cites plenary other case law on the subject of retrospective application of workers’ compensation statutes (in Oklahoma we reform workers’ compensation a lot–something like five comprehensive overhauls in ten years). Why leave Mobile Mini out?

The procedural/substantive distinction is extremely significant in my line of work, where I argue for or against retrospective application of the most current statute every other day. I wish the Supreme Court of Oklahoma hadn’t played so fast and loose with declaring the standard of review “substantive.” I am virtually certain to be haunted by the lack of explanation here in the near future. I also wish the Supreme Court had tied up the loose end of Mobile Mini. It simply isn’t very persuasive to argue that a case has been overruled by not being mentioned when directly on point–but if it hasn’t been overruled, what is its status?


Career (first)

I’m an attorney. As of this writing, I’ve been licensed approximately a year and a half. Law is my passion and finding my career path will be a big part of this category. It will include posts about my struggles as well as my successes and probably more than a few mistakes as well. I hope that posting about the hard parts will help me improve professionally and keep my perspective healthy. Obviously no confidential information will be included.

While I sometimes feel like the only lawyer I know that actually wants to be one, law is not my only passion. I also love writing, in particular persuasive and/or analytical essays and poetry. Getting published is a goal and I hope these writings will spur me toward it.