Wednesday, November 30, 2011

174. We're bogged down by fear

Recently my wife went out to run some errands. First stop was a popular department store, where she tried to purchase replacement watch batteries. The salesperson asked my wife if she had purchased the watch there. When my wife said she had not, she told my wife that she could not help her. My wife asked why, and she said "liability" issues, "we can't replace batteries because we can't replace the watch if we break it."

Second stop was a home improvement store, where she was interested in purchasing carpet for our living room. The store has a policy that they have to come out and measure the room for a cost of $35-which is "credited" to the purchase of the carpet. My wife asked if we can have the measurements-you know, in case we decide not to purchase the carpet from them. There answer was no. Why? They told her it was because the home improvement cannot be responsible if we use those measurements to purchase carpet from somewhere else and they are inaccurate.

I had to ask, seriously? With the right tools, replacing a watch battery is not exactly brain surgery. Isn't there some insurance that department stores can purchase in case of such a tragedy? Can't department stores make everyone sign a waiver or something? And we have to pay someone to take measurements-a task that mankind has been successfully performing for centuries-and home improvement stores have such little confidence in those measurements that we cannot receive the results?

It made me realize that increasingly, we are living in a scared society.

In addition to being afraid of terrorists, the swine flu, Muslims, President Obama, socialism, taxes and aliens-- we are afraid of being sued.

Actually, corporations are terrified of being sued. Although very few cases actually make it to court, and even fewer win, the threat is concerning enough for companies to implement policies and procedures that both manage their risk and hinder consumers with a landscape of legal nuisances.

Negotiating our way through society is becoming paralyzing. Trying to perform some of the simplest tasks requires that we swim our way through a series of privacy laws, legal waivers, pages of legal documents and the signing away of our rights, such as agreeing to arbitration in lieu of litigation.

For consumers, the agreement is usually only on the corporation's terms. There are pre-printed forms, which on occasion even contain illegalities, for which if the consumer does not agree to the terms-there is no deal. There is no bargaining, there is no meeting of the minds.

How many people have read and understand their home loan, insurance policies or even their car loan? We recently worked with a real estate agent who did not understand the difference between a disclosure and a warranty.

Corporations employ an army of lawyers who fight conservatively. Despite the fact that the average Joe rarely defeats a large corporation in court, and only in the most egregious of circumstances, the last thing corporations want is a sympathetic jury controlling their fate.

Professionals, like doctors, fear malpractice lawsuits and often prescribe conservatively in order to protect themselves. If you go to the hospital for surgery, they will ask your name upwards of a dozen times and as well as what part of the body is being operated on. Despite common opinion, malpractice lawsuits are difficult for an injured party to win-however, when they do, the financial award can be significant.

This conservativeness has trickled down through the corporations to their employees. In healthcare particularly, where HIPAA reigns, employees love to tell you it's "the law" or it's a "liability issue." It does not matter if it is silly, unlikely or even untrue. In fact, employees often cannot cite the law, or provide example of the liability, or even know if anyone has ever won a case on that claim.

The problem even exists between companies . . . as many organizations "can't give out that information." Often the most insignificant of information requires parties faxing waivers and releases back and forth. Then they will still have to ask the lawyers if they can provide that information.

Finally, it is not just corporations and employees--it's everyone. I've even seen people at garage sales trying to "protect themselves."

Unfortunately, it is only going to get worse-our society is becoming more litigious, as everything is someone else's fault. The fear of these lawsuits and the reaction to that fear will increase-furthering burdening consumers and patients. The challenge is balancing real and sensible legal concerns with overreaction and irrationality. The challenge also encompasses dispelling some of the legal myths that lead to overreaction-like the infamous McDonald's coffee case.

More often than not, it is a matter of reasonableness. It does not seem to me that reasonableness should be a difficult standard for corporations and professionals. The truth is that anyone can be sued for almost anything-winning is a different matter.

173. Get bothered; break social contract

The documentary "Declining by Degrees: Higher Education at Risk" details many of the things that most people are concerned about in regards to higher education today-student loans, emphasis on sports, cheating, drinking and grade inflation. The documentary offers a nice diversity of perspectives, such as contrasting small colleges with large universities. It follows the paths of several students, some of whom succeed and others who do not.

There is incredible diversity in higher education. Some students are well prepared; others are in over their heads. Some universities offer small classes and personal attention; others allow students to get lost in large lecture halls. Some university professors are concerned with tenure and research; others are working as adjunct faculty at a couple of universities. Some students work full time jobs and study incredibly hard; others are there on their parent's dime and spend their time partying and doing just enough to get by.

There were some overarching concerns expressed in the documentary. One concern was the attention to fundraising, sports and student retention-as a business perspective. Colleges are competing for students and are spending a lot of money on sport complexes, student centers and apartment-like dorms. Another concern was the disparity in effort and expectations. In the documentary it was portrayed as a social contract: "You don't bother me and I won't bother you." It was a perspective that hit home-and it reaches beyond the colleges and into society.

There are many issues inherent in the social contract that says, "Don't bother me and I won't bother you." It is contract that encourages "looking the other way," "ignorance is bliss," "don't judge me," and "mind your own business." School administrators and commentators were troubled with, "a culture that expects little," and that hardworking students were often rewarded with the same degree as those that just got by. In society we witness, among other things, immorality, irresponsibility and hypocrisy--in which whistleblowers, or other informed parties, are paralyzed in conflict, indecision and self-interest.

Unfortunately this social contract eventually crumbles-as we saw at Penn State, the Catholic Church, the Iraq war, with the tobacco companies, in government and, of course, on Wall Street. In each of these cases, abuses and corruption were allowed to continue because nobody was strong enough, early enough, to speak out. We have runaway institutions, in which sports or religion or government or corporations are too big to be held accountable. The result is often a cover-up until it reaches the tipping point, upon which it explodes and people ask, "How did that happen?"

When this contract does crumble, it is often "safety in numbers"--when several people are willing to come forward. The contract may also be challenged when movements are formed such as the Tea Party and Occupy Wall Street.

The truth is, in many instances, we would rather not know-or at the least, we would like to justify that it is not worth the fight. And, at the same time, we do not want people in our business. People do not want the morality of their actions challenged, their beliefs tested, or their ethical decisions confronted. We have developed social norms that take politics, religion and money off the table-we just do not discuss those things.

But maybe we need to sometimes break this social contract and be bothered. Whether it is industries and institutions or colleges and neighbors-maybe we need to speak up. Obviously there needs to be discretion-but, at the same time, there are often families and lives at stake. We need to look out for each other and not be so willing to pretend that the things we know are happening--are not. It is difficult and all of us have probably weighed the consequences when we have witnessed injustice--whether it is ruining a relationship or risking our jobs. However, we should not live our lives in the background--happy to go with the flow as long as we get the things we want, or because we can hide behind a legal obligation. Maybe we need to be bothered to develop a new social contract.

Thursday, November 24, 2011

172. Wild animals are not our pets

The nation was stunned and appalled as Ohio again made news when Terry Thompson of Zanesville turned loose a number of wild animals that he kept on his animal farm and then killed himself. Most of the animals were subsequently killed by law enforcement.

Many people who care about animals asked whether the animals needed to be killed, or whether they could have been tranquilized and taken to a zoo or animal sanctuary. While certainly that is a valid question, I will not debate the decision of law enforcement in this circumstance. It's understandable that our modern culture will not, and cannot, accommodate wild and aggressive animals roaming our streets.

However, it doesn't mean that I don't feel for the animals. It actually took me a couple of days to get over this heartbreak, as I continue to be disappointed by human perspective. I don't know what kind of life these animals had on this animal farm, but obviously they lived part of the day in cages. I thought how terrible it must have been for them-they lived their lives in captivity, and as soon as they are released, probably confused and certainly unequipped to handle the local environment, they were immediately hunted and slaughtered. The photo of all these dead animals was truly horrific.

What I will debate is why Ohio continues to be one of the worst states when it comes to laws that prohibit the ownership of "wild" animals. You would have thought we learned our lesson after a bear killed a caretaker in Columbia Station, but Governor Kasich allowed the temporary restriction that former Governor Ted Strickland implemented to expire. Strickland's law prevented anyone convicted of animal abuse from owning wild animals. Thompson had been convicted of animal abuse.

I just don't understand why we continue to be fascinated with the idea of owning an animal, really any animal, "wild" or not, other than maybe cats and dogs. Cages and other forms of confinement are imprisonment, regardless how much someone loves them. This includes not only lions and tigers and giraffes, but also lizards, snakes, ferrets, turtles, fish, rabbits, cows, pigs and birds. My email signature includes my favorite quote on the issue from Jacques Deval, "God loved the birds and invented trees. Man loved the birds and invented cages."

If anyone has watched an animal in a cage, they will note that many engage in a rhythmic pacing back and forth. Some animals, including many on factory farms, literally go insane. They don't understand why they are in a cage, why they are not prohibited to live as nature intended. They have to deal with all of their suppressed instincts, and it is disturbing to watch.

Interestingly, this latest misfortune occurs just before the release of a new movie entitled, "We Bought a Zoo," featuring my wife's favorite actor Matt Damon. It's not just untimely, it sends the wrong message. PETA has asked director Cameron Crowe to include a warning message in the film and in its promotional materials. Vice President Lisa Lange explained in a statement, "As the tragedy in Ohio gruesomely illustrates, wild animals aren't Disney characters. They have very special needs that all too often aren't met by people who buy them on a whim because they think it would be 'cool' to own a tiger."

We need laws that prohibit the ownership and trade of wild animals.

We're a bored species-one that has time for reality television, Super Bowls and cell phones. Unfortunately this boredom often includes the mistreatment of animals-including even the mistreatment of animals we think we love.

If we really love animals-it's simple, we must stop eating them, experimenting on them, keeping them as pets and ruining their habitats. They are sentient beings, not just here for our convenience, amusement or expendability. They are here to live, reproduce and die, just as nature intended-free.