NAWCJ

May 2021 President’s Letter



by Hon. Deneise Turner Lott

 

Scarcity versus Abundance

Did your law school orientation include “the speech”? “Look to your right and then to your left; only one of you will walk across the stage at graduation.”  Was it delivered in an ominous baritone that sounded more sinister than solemn?  To cocky but impressionable 20-somethings who knew “the speech” was coming but still were struck silent by its warning?

Recent graduates of law and other professional schools will attest that “the speech” is a relic of the past – a quaint anachronism.  Colleges and universities now tout their retention rates, a change of heart likely driven by $30,000 to $60,000+ annual tuition rates. But, if pitted against one another from day one by their deans in a kind of academic Hunger Games, is it surprising that some lawyers define “winning” as “trouncing” or “taking down” the other side?

The mindset that life is a competition in which my win is your loss is described as a scarcity mindset.  Its counterbalance is the abundance mindset.  The late Stephen Covey coined the terms “scarcity mindset” and “abundance mindset”; he described them in his 1989 bestseller, The 7 Habits of Highly Effective People. Covey explained that a scarcity mindset believes life is a zero-sum game – a finite pie, so a piece for me means less for you.  An abundance mindset believes resources are available for all to achieve a win – that because the sun is shining on you does not mean there is less sunshine for me.  Of course, sunshine is infinite. Other resources like water, money, and judgeships are finite. The key to an abundance mindset is to adopt a longer view, a broader focus, a more innovative paradigm so we do not fight over the pie but expand the pie for ourselves and others by creating new “Third Alternatives.”

I have been pondering the dichotomy of scarcity and abundance because, as a judge, I want to reduce friction between the parties and help them fashion win-win solutions to problems, especially when settling claims.  For instance, I remind both parties that when a claimant returns to work with the employer with no actual loss of wages, both parties have already won the prize.  Regardless of past or future benefits paid, employee and employer alike have realized one of the best possible outcomes of the claim. Knowing they have already “won” by this standard, the parties often become less defensive and more open to discussion and to creating new “Third Alternatives.”

Settlement negotiations, particularly, are fertile ground for “Third Alternatives.” One small example:  in Mississippi, the parties may select experienced workers’ compensation litigators to mediate their claim as part of a program sponsored by the Workers’ Compensation Section of the Mississippi Bar.  The “Kids’ Chance Mediators” agree to donate one-fourth of their hourly fee to our state’s Kids’ Chance Scholarship Fund.  An ace mediator told me he routinely opens mediations by explaining the Kids’ Chance Mediation Program and by thanking the parties for agreeing to mediate and thereby supporting the Program (win-win). He recently settled a contentious claim after the claimant finally agreed to accept a previously-rejected offer if the employer would kick in an additional $250.00, an offer the employer quickly accepted.  The mediator later learned the claimant had agreed to settle for an additional $250.00 because she wanted to personally donate that amount to the Kids’ Chance Scholarship Fund. By assuming creative agency, exploring options, and expanding the pie, a new “Third Alternative” was devised to resolve the parties’ dispute, one that would not have been available to them from a judge.

*****

One of the many ways to develop an abundance mindset is to cultivate an openness and enthusiasm for learning, even about things we have mastered. The opportunity to reimagine the routine and the not-so-routine is one reason I enjoy NAWCJ and this newsletter.  May’s edition does not disappoint!  Judge David Torrey reviews an article on judicial writing, a subject that is always top-of-mind for me.  Are judges allowed creative flourishes when writing orders?  Should they develop their own distinct voice and express their personalities in their opinions?  What about editorializing on a party’s or counsel’s tactics?  Or should we conform to a formulaic, impassive style? Judge Torrey has some words of wisdom on this subject.

Judge Josh Baker of Tennessee also shares some personal tidbits with us in a feature titled “Ten Minutes With.” I am sure you will enjoy this peek behind the curtain at NAWCJ’s new Chair of the Website Committee.  And don’t forget to share any suggestions you have to improve our website with him: Josh.Baker@tn.gov.

Dale Hamblin, Assistant General Counsel of the Kentucky Department of Workers’ Claims, offers an agency’s perspective on COVID-19 claims in “Workers’ Compensation Meets COVID-19.”  There is much we do not know about this virus, but we do know our authority to adjudicate all claims is derived from our respective Acts and, in some cases, our governors’ executive orders.  And that is a good place to begin and end our legal analysis.

As I sign off this month, I am pleased to say that I took my fully vaccinated self on a plane to California in April to see my son.  It was our first visit since Christmas 2019, and time with him was the balm my soul needed after the last fourteen months.  My hope is that, by continuing to follow CDC guidelines, we will ebb back to normalcy and soon gather for the annual Judicial College in Orlando, December 12-15.  Mark your calendars now – registrations for December are pouring in for what promises to be our best conference ever!

Deneise