law – Page 4 – understand-culture

Litigious

Litigious: To be litigious means to argue, to contend, to take your dispute to the courts. American society has become very litigious. With a population of roughly 310 million people, the U.S. has 1.2 million attorneys, 200 law schools, graduating approximately 45,000 lawyers each and every year. The court of law is where conflict is resolved.

How conflict is resolved is foundational to any society. It is a system for balancing out conflicting interest. Conflict resolution is so central to our daily lives, in so many or our interactions, that we are continuously fascinated by how they play out.

This fascination is the reason why many movies and television shows are based on the law and legal proceedings. Among the most popular in the U.S. were: L.A. Law (1986-94), the classic Perry Mason (1957-66), The Defenders (1961-65), Law & Order (1990-2010).

The popularity of these shows has led to the reality court room shows, a combination of reality television and the workings of the American legal system. The best known are Judge Judy, The People‘s Court and Divorce Court.

6th Amendment, again

The Sixth Amendment states: „In all criminal prosecutions, the accused shall enjoy the right … to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, ….“

For Americans, whether in the legal system or in the workplace, the right to a hearing is fundamental. The hearing allows for the parties in conflict to make their arguments and counter-arguments. It is the beginning of the formal process of conflict resolution. Americans expect the team lead to call a hearing quickly.

In a fair hearing the conflict parties have the opportunity to present evidence – including witnesses – and to discover what evidence is brought against them. The hearing also allows for questioning (cross-examination) of the opposing party‘s witnesses. A hearing is only fair if it is administered by an impartial third party.

In the American business context the manager, as judge, may resolve the conflict based on those arguments and counter-arguments, or use the hearing as a basis for further investigation into the reasons for the conflict.

Because American managers are responsible for the results their teams produce, they focus on maintaining internal team cohesion. Conflict of any kind threatens cohesion. After having learned of an internal conflict, American managers are inclined to call the conflict parties together at very short notice. That first hearing is direct, informal and personal. The manager wants to „get to the bottom of the problem.“

“Whistleblowing”

Even if an American loses a conflict within a company, after having escalated it once or twice, if he/she strongly believes to be in the right, it is not uncommon for that American to seek an even higher authority – the public at large. When that happens, the person who exposes the conflict is called a “whistleblower.”

Edward Snowden was working for the NSA when he publicly accused them of spying. Snowden said that the reason why he decided to make his accusations public was that he “can’t in good conscience allow the U.S. government to destroy privacy, internet freedom and basic liberties for people around the world with this massive surveillance machine they’re secretly building.”

In 2014, former State Department official John Tye wrote an editorial in The Washington Post in which he discussed his concerns about his department.

Thomas Drake was an executive in the NSA (National Security Agency) when he began to disagree with the agency’s policies. After several attempts to address his concerns internally, Drake decided to make his complaints public and turned to reporter Siobhan Gorman in 2006.

6th Amendment

The Bill of Rights are first ten amendments to the U.S. Constitution which guaranty personal freedoms and limit governmental powers. The Sixth Amendment states:

„In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.“

The following part of the Sixth Amendment is named the confrontation clause: “In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.”

The Confrontation Clause has its roots in both English Common Law, protecting the right of cross-examination, and Roman Law, which guaranteed persons accused of a crime the right to look their accusers in the eye.

According to the Bible, Acts 25:16, the Roman Governor Festus, discussing the proper treatment of his prisoner, Paul, stated: “It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face-to-face, and has been given a chance to defend himself against the charges.“

Mediation Law

Germans prefer to resolve their conflicts without taking it to the courts, and with the help of a neutral, third party. The so-called mediation law permits these resolutions to be legally binding. Mediation reduces the workload of the courts and often leads to a resolution accepted by both conflict parties.

Mediation is a structured approach which guarantees that its proceedings do not become public. The conflict parties participate freely in the mediation process and are asked to seek resolution in good faith.

The mediator is a neutral and independent party, but has no power to force a resolution. The mediator guides the conflict parties to a resolution which they have formulated.

The mediation law also allows for ombudsmen, or neutral third party organizations, which also offer conflict resolution services. These include banks, insurance companies, the German rail system, scientific research organizations, local utility companies, real estate associations, legal organizations. The association of banks, for example, in 2011 resolved over 8,000 conflicts. The insurance association resolved just over 17,000 conflicts.

Wrongful termination

The Human Resources departments in American companies – especially large ones – have become very careful in how they handle employee performance appraisals. Not only because they strive to develop their talent, but also in order to avoid lawsuits. Even well-designed appraisals can lead to a lawsuit if they are poorly implemented or applied in an inconsistent manner.

Because U.S. labor courts continue to make exceptions to the once solid At-Will doctrine, employers face greater requirements to prove legitimate business reasons for many personnel actions.

At-Will employment is a term used in American labor law for contractual relationships in which an employee can be dismissed by an employer for any reason and without warning.The rule is justified by its proponents on the basis that an employee may be similarly entitled to leave his or her job without reason or warning.

At-Will employment gradually became the default rule under the common law of the employment contract in most states during the late 19th century. Over the 20th century many states modified the rule by adding an increasing number of exceptions, or by changing the default expectations in the employment contract altogether.

Article 65, German Basic Law

Germany‘s Grundgesetz or Basic Law is the equivalent of a constitution. Artikel 65 of the Grundgesetz defines the working relationship between the Chancellor and the cabinet:

„The Federal Chancellor defines and is responsible for the overall political goals of the government. Within the framework of these goals each cabinet member is responsible for leading their department independently.”

It continues:

“Differences of opinion among cabinet members are clarified by the Chancellor and the other cabinet members. The Chancellor leads the government based on a political platform formulated by the Chancellor and the cabinet, and which has been approved of by the Federal President.“

Paragraph vs. Case

It is a well known fact that the German and the American legal systems have fundamental differences between them. The modern German legal system is based on ancient Roman law, combined with a bit of French and old Germanic law, but all of it follows the paragraph law structure.

The American system is derived from the English case law tradition, which follows the law as it was laid out by judicial verdicts in actual previous cases. Key cases providing precedence are reviewed to determine how to continue.

Justice (Gerechtigkeit) and judgement are closely connected in the American system. Not just the concrete facts of the case, but also the circumstances are considered to be crucial information for the deliberations and verdict. These then must be interpreted with regard to the complex nature of the human existence.

A task which only persons with sufficient experience with life as well as with people are capable of. This experience – or the wisdom that comes from such experience – is something which only older people can have.

This is why Americans are always astounded when they hear that in Germany relatively young people – in their early 30s – can become judges. Many of the district attorneys that they see on German television look as if they were fresh out of law school.

According to the American understanding of judicial power, paragraph laws play a minor part. Case law is so difficult precisely because it concerns situations which are not found in a German book of federal law.

This is why American judges must be older people who are truly good and wise. Their process too involves stringent scientific methods of analysis, not unlike German paragraph laws. These, from the American perspective, can not deliver more than just the pure facts.

The ability to take these facts and interpret them, to make sense of them, this is what they view as true good judgement. Knowledge of methodology and analytical processes may support one’s good judgement, but can never amount to the equivalent.

Legal Case Method

The case method utilized in business schools is also used in American law schools. It relies on the principle that the most effective way to learn American law is to scrutinize judicial opinions which have become the law.

Law school cases allow students to discern a legal rule, prompting students to test their knowledge in simulated situations. This sensitivity towards facts and reliance on previous judicial rulings is deeply imbedded in the legal system in the United States.

Litigation

Given their litigation-heavy culture, it may seem ironic that Americans are so quick to say yes to an agreement. After all, saying yes and then not following through should make it easier for the one party to file a lawsuit.

However, the reality is the opposite. By having a culturally soft yes Americans make it more difficult for others to successfully sue them. In the U.S. it takes far more than a simple yes to indicate an oral agreement, which offers Americans protection from legal claims.

Gianni vs. Russell Supreme Court of Pennsylvania 1924 – Gianni, who owned a small store, claimed that his landlord told him that he could have the exclusive right to sell drinks in the building.

The landlord then rented another space in the building to a company that sold drinks, and Gianni attempted to sue. However, because Gianni had entered into a written lease, and there was no mention of this right in the lease, the oral contract was said to be nonexistent.

Power Entertainment Inc. v. National Football League Properties, Inc., United States Court of Appeals, 5th Circuit, 1998 – the plaintiff and defendant orally agreed that Power Entertainment would take over a licensing agreement between the NFL Properties and another company in exchange for Power Entertainment assuming the $800,000 debt between the two original companies. However, after the debt was paid, NFL Properties did not transfer the license, and the oral contract was found to be invalid.

Additionally, oral agreements in the US are sometimes called handshake deals. Although an actual handshake isn’t necessary to make the agreement binding, this still shows that it takes more than a ‘yes’ to enter into an agreement.