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The Facts Set You Free

As executive employment and compensation lawyers, we are asked to render advice to clients who are going through employment transitions. They are being hired or fired, or facing ongoing challenges and changes to their executive work life.

As every experienced lawyer knows, that advice is only as good as the accuracy and adequacy of the foundation of facts on which it is based, and the first step in any efficient legal engagement is for the lawyer to obtain and fully understand the particular facts of the executive employment client’s situation.

While an essential step in any proper executive employment representation, however, this task often is neither easy nor straightforward.

Here is one example:

We received a call from a successful, long-tenured executive who is nearing retirement age. As is customary in any situation where an executive has been employed by a single employer over many years, this executive has experienced ups and downs as the company’s personnel, fortunes, economics and corporate ambitions have changed. A beloved early boss retired and was initially replaced by a succession of short-term hires, some of whom were difficult or erratic, before the company found an adequate replacement with whom our executive developed a decent working relationship.

Our executive client was deeply devoted to the company and its work, and to most of its senior management team. He had every legitimate expectation — although no legal guaranty — of ending his career with this same employer. A major incentive for him to do so was that the full extent of his retirement entitlements under the company’s pension plans only kicked in when the executive had achieved a substantial number of years of service, in this instance, requiring him to remain at the company until very close to his actual retirement age. When he contacted us, this executive had for many years weathered all the employment storms which swirled around him, and the “finish line” was only a few years away.

All of these carefully laid plans seemed to be disarranged one morning when the executive’s own boss, in a hasty, unsatisfactory, spur of the moment meeting, attempted to deliver, in a piecemeal fashion, important but possibly undigested information to our client before the boss ran out to another more “important” meeting with her own higher-ups.

This brief conversation left the executive who called us in a legitimate state of fear and agitation. As far as he could make out, it appeared that certain of his job functions were being delegated elsewhere, and he was being asked to concentrate on certain specific aspects of his job to the exclusion of other tasks which he enjoyed and had long ago mastered. There was mention, without any real details, of a company-wide reorganization, but it was unclear if and how it would affect our executive personally. Certainly there were danger signs: some of his own direct reports were being reassigned to other executives, and it was even unclear whether he would continue to have the same boss himself. Given this absence of full and detailed factual information, our executive client — understandably — projected a wide variety of his own personal concerns into the factual void. Was his own job in jeopardy? Was he being squeezed out of employment with a long-time employer to whom he had devoted years of thoughtful service? Was this a corporate maneuver, in difficult economic times, to relieve the company of a significant executive obligation by depriving our client of the last few years of required service before his retirement payments became fully vested? These are all important and legitimate concerns, and he was, although gripped by emotion, acting rationally by contacting his executive employment attorneys immediately.

The problem, of course, is that he did not know and had not yet learned enough about the real facts of the situation to provide him with a firm basis for obtaining good legal advice and, with our assistance, formulating a correct course of action (or inaction) based on that advice.

Our earliest mentor, the legendary trial lawyer Louis Nizer, was tireless and relentless when it came to getting facts. He taught us that a lawyer’s first duty was to interrogate, to the fullest extent, the facts of the particular matter at hand. Mr. Nizer’s consistent refrain, when he sent his younger lawyers back for answers to factual questions they may not even have thought of, was that “the facts set you free.” How, he asked, can a lawyer truly give a client that lawyer’s best advice before the lawyer has mastered the particular facts of any given situation?

Frequently Asked Questions

1.     Q.     “How should an executive compensation attorney advise a client who, as with our corporate executive in the above example, has only an imperfect idea of what is going on and what he may have to deal with?”

A.     The lawyer’s first task is to help the client, to the fullest extent possible, find out what the facts are.

2.     Q.     “Would you give an example of how that is done?”

A.     In the situation described above, we immediately sent the executive back to his boss to schedule a (hopefully) full and uninterrupted meeting, and we coached the executive through a script of questions the executive could and should ask in an attempt to find out what, in fact, was actually happening. Only then could we identify those areas — if any — where the executive was in genuine danger and needed our strategic advice.

3.     Q.     “What if the executive is unable to get his superior to reveal the full extent of what is happening in the particular corporate or academic environment?”

A.     There is almost no way that the executive, if properly prepared, will fail to learn a good deal more of the facts than he had picked up from the first rushed and fragmented communication. But even the boss’s own imperfect knowledge, or his reluctance to share what he knows, will be an important factual predicate, as well as a basis for our client to probe further and seek other sources of information, such as colleagues and other senior managers, all the while digging, with our help, for enough factual information for us to formulate a better judgment.

As every executive employment attorney knows, the facts really do set you free!

About the Author

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George Birnbaum

Since 1980, sophisticated business people have relied on George to apply the meticulous preparation, attention to detail, and devotion to his clients he learned from fabled trial lawyer Louis Nizer. A graduate of Harvard College and Harvard Law School, George has over 35 years of distinguished deal-making, litigation, mediation and arbitration experience which he has used to negotiate high-stakes agreements for senior executives and select business clients throughout the United States.