Thursday, February 15
Why Hospitals Are at Risk
Raritan Bay Medical Center has undergone major changes in the past few years. Like other hospitals in New Jersey, it faces fierce competition and a need to constantly reinvent itself. Michael D’Agnes, the medical center’s CEO, leads the effort. An important step was obtaining affiliation with Robert Wood Johnson for Raritan Bay’s Perth Amboy and Old Bridge facilities in 2003. This step brought the medical center additional residents, faculty, and enhanced 24-hour service.
In addition to overseeing all of the operations of his medical center, D’Agnes is also the new chair of the New Jersey Hospital Association (www.njha.com). He talks about the squeeze on New Jersey’s hospitals — and those in the rest of the country, as well — at a meeting of the Middlesex County Chamber of Commerce on Thursday, February 15, at 11:45 a.m. at Pines Manor in Edison. Cost: $55. Visit www.mcrcc.org.
D’Agnes grew into his three-decade healthcare career “from the numbers up.” Graduating from Hofstra University in l969, D’Agnes was transferred, courtesy of the U.S. Army, to Germany for three years. Returning to New Jersey in l972, he put his degree to work for accounting giant Pannell, Kerr, Forster, where he spent five years auditing New Jersey hospitals, and learning their weaknesses and strengths. “Hospitals had much more realistic repayment then,” he recalls. “Medical centers had the money, and therefore the time, to provide patients lengthier services.”
In l977 D’Agnes became the CFO of Princeton Medical Center. After a seven year stay, he became executive director of Jersey Shore Medical Center, and then CEO of Bayonne Medical Center.
As CEO of Raritan Bay Medical Center, he oversees a $230 million organization running facilities in Perth Amboy and Old Bridge facilities. “Though only 12 miles apart, they have no real crossover in patients, staff, or identity,” he says. “This makes it a real challenge.”
While no one can doubt that enormous medical advances and benefits have come from hospitals in the past decade, D’Agnes sees the institutions on a course that fiscally cannot be maintained.
The good news. Beyond fiscal pressures, hospitals have been forced to spend more time on ensuring patient safety. This has been a gradual trend since the l970s when the open jars of formaldehyde were banned, eliminating that “peculiar hospital smell.” But in the past five years, individual patient safety in a broader variety of situations has become a primary concern.
The other patient benefit, definitely nudged by financial strictures, is that medical centers have become tighter, more efficiently run entities. Assistants employed at various levels have freed up doctors’ and residents’ valuable time. Logistical studies and increased technological assistance have sped up admission and processing times, while cutting costs.
The hospital squeeze. New Jersey mandates that its hospitals must admit and treat a proportional share of low paying and non-paying patients.
The idea that everyone, regardless of assets or insurance, receives treatment is a noble ideal, but D’Agnes says that it may be impossible to fund. Raritan Bay treated 19,100 patients last year and paid $33 million for its charity cases. The state repaid Raritan Bay only $24 million for these cases. “That’s a $9 million deficit,” says D’Agnes. “We just can’t run on that kind of loss. But we are actually better off than many others.”
Experts have long noted that a hospital’s percentage of charity cases directly correlates with how urban or rural is its location. Ninety-three percent of the patients treated at Raritan Bay’s suburban medical center are able to pay for their expenses. However, only about 70 percent of the patients at its more urban Perth Amboy facility are able to pay for treatment. That is still far better than the 30 percent of patients in Newark who can pay for treatment. “And even a paying patient, in most cases, does not actually cover all his own costs,” says D’Agnes.
Hospitals may envy physicians in private practice who perform the same procedures as they do, but who can turn away fiscally-unfit patients. Yet while private practice doctors may, on occasion, have a slight leg up over hospitals, both are justifiably singing the collection blues.
The struggle to get paid. “Our real problem is that every payer is fighting not to pay,” says D’Agnes. Be it a private insurance company, the state, Medicare, or Medicaid, all have adopted a flat fee repayment schedule. What’s worse, these payers generally wield the power to deny payment for any number of reasons. “Instead of pay by the day, it’s pay by the stay,” says D’Agnes, “and it’s just not realistic recompense.”
Surgeons are given a flat fee for their services — installing a pacemaker or removing a tumor. Hospitals are then paid for the length of time the insurer says it should take for the patient to get well enough to leave the hospital — regardless of complications, pre-existing conditions, age, or any other mitigating circumstances. Yet hospitals will not — and legally cannot — oust a patient who is unwell. Traditionally, the medical centers’ only recourse has been to eat the difference.
Three years ago, Raritan Bay was treating its average patient for 10.9 days and receiving payment for 5.5 days. It has now found a way to lower the average stay to 6.1 days. But the medical center is still only paid for 5.5 days.
Like other hospitals, Raritan Bay also has to heed insurers’ advice on where a patient should receive care — or, once again, eat the difference. This happens when a doctor wants a patient in an intensive care bed, but the insurer prefers a less expensive bed on a surgical floor.
Beyond refusing to pay for care a doctor and hospital deem essential, payers are making it more expensive to operate a health care facility. D’Agnes points to Raritan Bay’s 40 case managers, whose jobs were created by the payers. These people oversee codifiers who must make sure that each medical procedure is crammed into the precise categories recognized by the insurance company.
“This sort of costly bureaucracy didn’t exist 20 years ago,” says D’Agnes. Without changes, Americans might soon be less worried about finding insurance than about finding a hospital that can treat them at any price.
Reaching for the black. While admitting that there are no quick fixes to the hospital cost squeeze, D’Agnes says that a solution would be the creation of some state-funded hospitals throughout New Jersey. For critics, such centers immediately conjure up television-style visions of frantically understaffed ERs, with primitive levels of care.
D’Agnes insists that this need not be so, and says that examples of excellent state hospitals can be found all over the nation. For a hospital that is already receiving three-quarters of its patients as non-payers, the switchover might involve not much more than a change of front door signs.
“While I’m not a fan of national healthcare,” D’Agnes says, “I think we should and can get a good 90 percent of our population insured under some plan. It is a doable goal we should shoot for.” He also feels that employers who offer no health benefits to employees might be required to kick into a general fund. He also says that, state hospitals or no, reimbursement fees have to get more realistic, with dramatic reform of the current inflexible pay-by-the-stay method.
Yet, in the end, a major part of the burden will fall on the medical community itself. An entire new range of mid-level assistants (jovially refereed to as physician extenders) has already begun to enter the field. Anesthesiology assistants now make it possible for one anesthesiologist to oversee five simultaneous operations with, says D’Agnes, no compromise in patient safety. Similarly physician assistants have lowered costs and lightened the doctor’s load.
With a final point of the finger, D’Agnes says that we, the healthcare consuming public, can lower costs immeasurably by shaping up. “We have to see ourselves as entering into a pact with our healthcare provider,” he says. “If you are told to lose the weight, reduce stress via meditation, or whatever, you’ve got to take that responsibility.”
As new equipment comes on line, and the baby boomers begin to ripen into seniorhood, medical costs will undoubtedly rise. And if they seem sensible, individuals can vote for the changes D’Agnes mentions above. But maybe the best bet for reducing healthcare costs is to follow through on that New Year’s resolution and go enjoy the gym.
— Bart Jackson
Building Diversity In Business
Sometimes a person’s work and values mesh together seamlessly, and Westina Matthews Shatteen, managing director of community business development at Merrill Lynch, is a perfect example.
She grew up in Yellow Springs, Ohio, a town of 3,400 people and also the home of Antioch College. Her parents, she says, “decided to raise their children there to give them a different kind of experience.” But for Matthews Shatteen it was her father, not the small-town setting, that was the primary influence on her future direction. He intervened in her life at a crucial moment.
She was already a success by many standards. She had completed bachelor’s and master’s of science degrees in education at the University of Dayton, a doctorate in education at the University of Chicago, and two postdoctoral research fellowships, one at Northwestern University and the other at the University of Wisconsin, Madison.
When she was ready to move to her third postdoc at Johns Hopkins University, her “aha moment” came, and her father was its source. He put it to her straight: “Get a job. You are an embarrassment to the family. You have more education than anyone in our family’s history. Don’t you understand that you have both an obligation and a responsibility to give back, to help others, to pay your dues, simply for the privilege of taking up space on this planet earth at this time?”
His words were backed up by personal example. Rev. Wesley Matthews was not only an A.M.E. minister but also a leader in the civil rights movement and a community leader, head of the Chicago Urban League, and chair of the committees to elect and re-elect Howard Washington as mayor. And, adds his daughter, “he’s my role model.”
Matthews Shatteen speaks on “Unifying our Business Community…Establishing Diverse Connections” at the Mercer Regional Chamber of Commerce on Thursday, February 15, at 11:30 a.m. at the Trenton Country Club in celebration of Black History month. Cost: $55. Call 609-689-9960.
After her father’s admonition, Matthews Shatteen quickly got a job at Johnson Products Company, doing work very similar to what she does today at Merrill Lynch. Then when she started work as a professional at the Chicago Community Trust, she says, “he kept pressing me.” He would ask: “What are you doing in the position you hold to make the world a better place? It’s not just about you going up the corporate ladder, getting promotions, and greater compensation.”
Her career has been the answer to his question. She has worked at Merrill Lynch for over 20 years, for 12 years in global philanthropy, then in diversity and community development for the Merrill Lynch Bank, and then in her current position, which she likes to call “community relations with a return on investment.” She is also the first woman and person of color to be elected a trustee for the Merrill Lynch Foundation.
Her work, says Matthews Shatteen, is the “nexus between the public and the private sector of doing well and doing good. You can do well and help the community, and it also can have a return on the investment for the company.”
“I understand that there are important opportunities, organizations, and individuals in the community at large and that Merrill Lynch has many different products, services, and interests,” she says. It is her job is to bring them all together. Here are some examples from her work:
A financial symposium for the chief financial officers of black colleges and universities. She will be bringing in “the best and the brightest to share the financial landscape and how best to manage their resources.”
Someone from Moody’s will talk about credit rating and a representative from Deloitte Touche about regulations. In addition, the Merrill Lynch chair will open the event with greetings and the chief financial officer will address the group. “It will be a high level, engaging conversation about the current market environment and the challenges and opportunities for managing assets,” says Matthews Shatteen.
The “doing good” component is obvious: Many of the attendees have small endowments and would never be clients, but this meeting will help them to be able to make wise decisions. Matthews Shatteen quotes the folk adage, “Give a man a fish; you have fed him for today. Teach a man to fish, and you have fed him for a lifetime.”
The “doing well” piece is that some of the participants are Merrill Lynch clients or potentially could be. And, beyond that, she says, “we are interested in all of these institutions for recruiting. We want their talent!” But that means exposing these colleges to Wall Street. Many of their students, like Matthews Shatteen herself, come from smaller communities and, she says, “no one would have the vision in my community or family of Wall Street and Merrill Lynch as a career choice. If you expose more institutions and individuals to Wall Street, they may begin to think differently. It has certainly been an extraordinary experience for me,” she says.
Investing pays off. A financial education program was developed with Sesame Street and Bank Street College of Education. The program’s goal is to strengthen the financial readiness of under-served young people, perhaps motivating them to become the next generation of entrepreneurs. It covers leadership, entrepreneurship, personal finance, and business savvy. Financial advisors volunteer to help educate the young people.
Non-profit partnerships, through which Merrill Lynch supports financial education programs. With the Ad Council, for example, the company developed posters that showcase kids who have succeeded in their own business enterprises and learned how to save for their long-term goals. For the PBS series for teens, “In the Mix,” Merrill Lynch supported the production of “On the Money.”
Scholarship programs. In 1988, through a partnership with the national and local Urban League, Merrill Lynch adopted 250 inner-city first graders who were randomly selected in 10 different inner cities. Employees volunteered as mentors in the program and eventually the company hired a full-time coordinator. In addition to mentoring, the program focused on academic and cultural enrichment, parental involvement, development of life skills, internships, and community service.
Merrill Lynch invested $16 million toward the program early on, and its employees contributed another $1.2 million. The money paid for tuition, room and board, and books for children, and more than 90 percent of them graduated from high school and went on to college or vocational schools.
Black women on Wall Street. Through a partnership between the Executive Leadership Council and Merrill Lynch, Matthews Shatteen has helped organize several hundred African-American women professionals to hear from senior African-American women in finance. “We bring in the most seasoned and exciting black women on a panel to tell them the real deal,” she says, adding that Merrill Lynch now does the panel as a live broadcast. “I’m making sure I leave a personal legacy so that others coming behind me will have it a little easier,” she says.
Matthews Shatteen has herself managed to avoid the worst of prejudice as she has advanced in her career —”Merrill Lynch brought me here to succeed,” she says. But, even so, she has her war stories.
When she was a young professional, the senior program officer for a foundation in Chicago, she recalls walking into a meeting with a prospective grantee. When the grantee asked her to get him some coffee, the chairman of the board quickly responded, “Westina, take your seat, I’ll get it.” And then she turned to the grantee and said, “Let me introduce you to Dr. Westina Matthews Shatteen, our senior program officer.”
Coming from Merrill Lynch, whose chairman is African American, chief administrative officer is Egyptian, general counsel is a woman, and co-head of banking is a Korean, Matthews Shatteen is very comfortable promoting diversity to other business leaders.
“I’m a woman of color who has long had a personal commitment to communicate and increase diversity in business and corporations,” she says. Her belief is that “it really requires a personal sacrifice for people to make a difference,” and she has a number of suggestions about how other corporate leaders can promote diversity in their businesses:
Make sure there is diversity in hires.
Create internships so that high school and college students get the work experience they need.
Share time, whether through mentoring or speaking at schools and other organizations.
Support good causes financially, if possible.
Fully on board with her father’s program, Matthews Shatteen, taking full advantage of her education, says, “I just want them to do something.”
— Michele Alperin
Use 360 Degree Feedback For Development & Growth
Do you see yourself as others see you? Is your perception of your own strengths and weaknesses the same as your boss’s perception? Or your direct reports’ perception? What about your clients? Do they feel you are giving them the service you think that you are delivering?
It’s important to gather all of this information. That’s the premise of 360 degree feedback, says human relations consultant Judith Lindenberger, who explains the process for the Princeton Human Resources Association on Thursday, February 15, at 5:30 p.m., at the Westin Forrestal Village. $40. Call 609-689-2323.
Lindenberger’s business, the Lindenberger Group (www.lindenbergergroup.com), is based in Titusville. It offers a variety of services to businesses and often “acts as the human resources back office for companies that do not need a full-time HR staff,” she says.
Lindenberger has been using the 360 degree feedback tool for over 10 years, and finds it “very successful in helping people and teams to analyze their effectiveness.”
The 360 degree evaluation differs from traditional evaluations in significant ways. Traditionally an employee sits down for a face-to-face discussion with his or her boss on what the boss perceives as strengths and weaknesses. This method has a number of drawbacks. Because the discussion is not confidential, the supervisor might not be completely honest. In addition, it is only the opinion of one person — the person in authority. The 360-degree method uses input from a variety of people, and because it is confidential, it is often more honest, says Lindenberger.
The person to be evaluated first fills out a questionnaire rating themselves on in a variety of areas, such as communication skills, technical skills, planning, execution, and providing direction. The same questionnaire is also sent to the person’s boss, co-workers, direct reports, and if applicable, clients — in other words, the people in a 360 degree circle around the employee.
Once the feedback is returned, the employee can see how he or she is perceived by others, and work to improve on any weaknesses that have been pointed out. The process allows a person to zero in on what is really important to the people around him. “I may think my job is all about dancing, but if my boss thinks it is all about singing, I had better learn to sing,” says Lindenberger.
Not only does it allow each member of a team to focus on the skills that are important, but it also points out areas that may have been taking up time, and that just aren’t worth the effort. “For example, you might be worried that your computer skills aren’t the best, but if everyone agrees that computer skills are not important for your job, you don’t need to worry about developing them,” she says.
Lindenberger, who has an MBA in human resource development from Drexel University, has used the 360 degree evaluation process for over a decade, both in her consulting firm and in her work in human relations for Brown-Foreman, in Louisville, Kentucky.
No 360 degree downsizing. “The culture of the organization must be right to use the 360 degree evaluation properly,” says Lindenberger. “Many people think it is a tool for downsizing,” she says, “but it should not be used that way.” In fact, she strongly recommends that companies not use 360 degree evaluations during a period of downsizing. Instead, “it is a tool for development and growth.”
Keep it mum. Without confidentiality, the evaluation process will not work, says Lindenberger. If co-workers, and particularly direct reports, believe that the person who is being evaluated will know who made a particular comment, they will not be honest.
Involve the whole gang. Unless several people return the evaluations, they will not be valid, says Lindenberger. She recommends that at least six people join in the evaluation. At the end of the process, the person being evaluated receives the “median results” on each of the areas studied.
Take the next step. Once the results are in, Lindenberger recommends that companies offer coaching in areas where the person has been shown to have a weakness. In fact, she says, she has seen several examples where the evaluation, combined with coaching, has saved a person’s job or even gotten them a promotion.
“I worked with a not-for-profit where there was a communication problem between the board and the communications director,” she says. The feedback showed that the director’s perception of his style of communication was very different from that perceived by the board. “By working with him we were able to reduce the number of board meetings by half,” she says.
Another person who was helped by 360 degree feedback was an employee who did not understand why he had not received an expected promotion. After using the 360 degree evaluation process and receiving coaching, “he made a huge turn around in his executive presence,” says Lindenberger. “He communicated authority and energy.”
The 360 degree process is a great way to learn about your “blind spots,” says Lindenberger. Not only can it be used by individuals, but it can also work for teams, she says. She worked with one company that was starting a new division. “The president used the 360 degree evaluations to make sure the team jelled quickly,” she says. The evaluations helped them to address any problems as soon as the occurred.
When used properly, she says, a 360 degree evaluation can be a powerful tool to motivate people because it offers an honest assessment of the employee from the people who matter most.
— Karen Hodges Miller
Where Law, Technology, and Art Merge
Brian G. Murphy, a partner at Frankfurt Kurnit Klein & Selz in New York, practices advertising, intellectual property, and entertainment law and calls himself “one of the lucky lawyers.” Lawyers, he says, are facilitators and helpers, “and I get to work with creative people doing what they want to do and helping them to achieve it.”
A graduate of the University of Pennsylvania (Class of 1989), where he studied English literature, Murphy has something of an affinity for creative artists. “They are doing things I wish I could have come up with,” he says, adding that many lawyers are frustrated artists, filmmakers, and musicians.
Murphy earned his J.D. at the New York University School of Law and went on to clerk for Judge Leonard B. Sand in the Southern District of New York. He says that he went to law school partly because he liked communicating through writing, a skill set important to law, and was also interested in government policy issues. Although he took a lot of history in college and, when he graduated, thought he knew a good deal about government and politics, he says that when he got to law school, “I realized I knew nothing. Law school was a wonderful education.” And, he adds, his legal work “has been wonderful learning process every since.”
He grew up in Sharon, Massachusetts, where his father was in the catering and restaurant businesses, and his mother stayed home raising her family for a long time, but later held various jobs in fashion retailing.
Murphy speaks on a panel on “Intellectual Property for Technology Entrepreneurs,” on Thursday, February 15, at 8 p.m. at a joint meeting of the Princeton ACM/IEEE-CS chapters and the Princeton Media Communications Association. The other panelists are George Awad, an associate in the intellectual property practice at Drinker Biddle & Reath, and Edward Felten, professor of computer science and public affairs at Princeton University. The event takes place at the Sarnoff Corporation. For more information, call Rebecca Mercuri at 609-587-1886 or Dennis Mancl at 908-582-7086, or check online at www.acm.org/chapters/princetonacm.
What Murphy talks about, thinks about, and lives every day at his job, he says, is “How do you help creative people to achieve their creative dreams without getting into legal trouble, and how do you help people who own creative works when they believe others have trampled on their rights?” Having worked with people in advertising, film production, Fortune 500 companies, and entertainment, he sees three big-picture legal issues that creative people face: copyright, trademark, and right of publicity:
Copyrights. “This is an area of the law that protects any kind of creative works that are original from being ripped off by others,” says Murphy, adding that federal copyright protection begins the second a work is created, with no registration necessary. When someone wants to use a copyrighted work, however, copyright law distinguishes between ideas and expression. It doesn’t protect ideas per se, but rather the original way an author expresses those ideas.
Murphy provides an example by way of two sets of similar television shows. “Bewitched” and “I Dream of Jeannie” are both about a magical woman living with a mortal man, but they are different executions of the same idea. Similarly “Friends” and “Seinfeld” are both about a group of friends living in New York, but the characters are incredibly different as is the way the same basic idea is executed in each show.
“All creative works are in some way derivative of what came before,” says former literature major Murphy. “Art and literature are a progression building on prior works. It’s not about taking ideas, but about preventing others from executing ideas in a substantially similar way that other authors have.”
Murphy looks at copyright issues on a case-by-case basis and asks, “Are you taking too much? Are you taking the idea, the inspiration, or are you taking the specific way that the artist is expressing the idea — the perspiration?”
Of course, if something is determined to be in the public domain, “part of our shared heritage,” it can be used by anyone. Copyrights for any work created before 1923, for example, have expired. As a result, says Murphy, “you can create your own version of Shakespeare.” And that’s for free!
Technological companies need to be concerned about these issues as they create marketing campaigns. “Every commercial is like a minimovie,” observes Murphy. The same is true for video games, which after all, do have story lines, or destination websites, which are designed to create some buzz and interest in products, companies, or brands. These websites may actually include a “webisode,” a little web television show. Check out, for example, Burger King’s www.subservientchicken.com, where users can give instructions to a chicken.
A relatively new area that may involve copyright issues is viral marketing. “Everybody is trying to find new ways to communicate with consumers,” says Murphy. Sometimes, for example, people will try to market their product or services on YouTube or myspace, despite rules that the sites can’t be used for commercial purposes. Yet, says Murphy, “there is a myspace page for every film that comes out.”
Both of these popular websites have been sued. Universal is now suing myspace with the claim that it is violating its copyrights by allowing users to post content it owns.
“The law is always several steps behind technology, particularly copyright law,” says Murphy. When player pianos were invented the question was raised about whether they were violating songwriters’ rights. And today questions abound about the Internet.
A couple of years ago the Supreme Court ruled in the case of Grokster, a peer-to-peer music sharing service, that the site’s creators were liable for encouraging people to infringe copyrights by downloading songs for free. The court also had to weigh the socially beneficial purposes of peer-to-peer networks, which enable open source software where multiple people are writing software collectively, or the distribution of music by an “improving or upcoming” band that wants to get its music out for free, or the sharing of public domain works.
Trademarks. Trademark law protects brand identification, names, logos, and taglines when other people are using them in a confusingly similar way or in a way that would suggest any kind of approval or sponsorship by the trademark owner.
In marketing campaigns or content, trademarked products may be used, but the litigation-averse should take care in how they use them. In the “Heroes” television show, for example, the cheerleader who can’t be killed sticks her hand down an InSinkErator garbage disposal, a bloody stump emerges, and then miraculously regenerates. The brand name was visible in the scene, and its makers were not happy, saying that the safety features of their product would prevent such a devastating injury.
Right of publicity. This area of law protects celebrities, and ordinary folks, too, from having their names or likenesses used for purposes of advertising or trade without their permission. In cases of pure advertising, the law is pretty clear — if you want to use Tom Cruise’s picture in a commercial, you have to get his permission, but things get murkier with artistic uses.
Rosa Parks, for example, brought a lawsuit against the singing duo Outkast for a hip hop song titled “Rosa Parks.” The song came out of the hip hop tradition of challenging other artists and bragging about yourself, and the duo claimed it was telling other, lesser artists, “You belong at the back of the bus. We’re the best.” But the phrase, of course, is indelibly linked to Parks’ historic role in the Civil Rights struggle. The question was whether the duo used her name to attract attention, or whether there was really an artistic connection between her name and the content of the work. Eventually the case settled out of court.
As for Murphy, he loves to work with the creative set and to deal with the challenges posed by technological change. When he takes on a case, he often finds himself thinking, “there’s something new here. How do I shoehorn it into a very good statute that is mostly working, but challenged by new technologies?”
— Michele Alperin
Monday, February 19
Hamming It Up For the Jury
You really did not need jury duty right now. But here you sit, hemmed in this box with 11 others, and no bathroom in sight. You know that guy is guilty — just by looking at him — and now you have to listen to (ugh) lawyers. But the elder gentleman rising to speak beside the defendant does not come on as the envisioned slick, fiery, hired gun.
He weaves a simple tale of understanding. By the time he’s finished his story, you’re not exactly sure which way you’ll vote, but somehow, empathy for all of the defendant’s actions has gotten included in the mix.
“Every litigating attorney, every presenter, everyone addressing a judge or board of directors is telling a story,” says actor Alan Blumenfeld, “and the goal of that story is to implant an emotion that elicits action from your audience.” In short, the bard was right: we are all players, acting out our lives on a stage. And those who are able to bring out the desired audience response are those who have studied the secrets of the acting craft, and rehearsed, and rehearsed, and rehearsed.
To help attorneys gain a grasp of the such basic theatrical and story telling techniques, Blumenfeld and his actor/writer wife Katherine James lead a workshop, “What Lawyers can Learn from Actors,” on Monday, February 19, at 9 a.m. at the DoubleTree Guest Suites at Mt. Laurel. Cost $219. Visit www.njicle.com.
Sponsored by the New Jersey Institute of Continuing Legal Education, this workshop teaches litigators how to bond with jurors, and, as writer, director, and actor, create their own persuasive dramas.
If, in the past 30 years, you have ever flipped on a television, gone to the movies, or attended the theater, odds are that you seen Blumenfeld and James at work. Each has played literally hundreds of character roles.
Son of a Long Island orthodontist, Blumenfeld began acting in Yiddish plays at age eight. He studied theater at Sarah Lawrence College, graduating in l975. Since then, based in Culver City, California, Blumenfeld has amassed a many-page list of theater, screen, and television acting credits, as well as several for scripts.
James came to the theater more through the literary avenue. She was led onstage at age 5 by her father, Eugene Nelson James, a playwright and an recognized authority on 17th century Irish dramatist George Farquhar. Somewhere back in her ancestry, she claims ties to the poet laureate of Sweden and a musical instrument maker, all of whom she claims as influences. A native of Illinois, James graduated with a bachelor’s degree in fine arts from Illinois Wesleyan University in l973, and later earned a master’s degree in fine arts.
The couple met and married while working at the American Conservatory Theater. “I never had any intention of teaching acting or dealing with lawyers,” says Blumenfeld. “But one day, our producer, Ed Hastings, returned from jury duty announcing that the lawyers had spent five days telling him nothing. He suggested that I could make some extra money teaching lawyers some of our acting craft.”
As a young and struggling actor, Blumenfeld recalls being dazzled by the term “extra money,” and he and James founded ACT of Communication in l979. Since then their firm has helped over 20,000 lawyers litigate more personably and more effectively. Video samples of their training can be found on the company’s website, www.actofcommunication.com.
Blumenfeld devotes about 10 percent of his time to ACT of Communication with the remaining hours spent on his acting career. (Next up, a role as Sancho Panza in a “Man of La Mancha” production.) James pours about three quarters of her days into the business, though she still finds time to work on her new play “Olympus.”
“They wrote the Constitution and molded the country, and yet we remain innately suspicious of all lawyers,” says Blumenfeld. This doesn’t make it any easier for them to win over a jury. To help, Blumenfeld and James take their clients back to acting basics.
Shed the facade. Probably the major blunder James and Blumenfeld see is lawyers cleverly trying to fake sincerity and to drum up emotions for emotion’s sake. But James insists that people are never fooled, and invariably respond to the genuine.
“Actors don’t act the role of a lawyer or an angry mother, they become that person,” says Blumenfeld. They search and unearth some sympathetic chord with the character that would make them feel and react in the same way. They are themselves, and thus believable.
Lawyers need to use their personal styles. Like the rest of us, they range from shy to ebulliently flamboyant. The actual personality always impresses, whereas litigators who hide behind playing a lawyer image, complete with phony gestures and fake voices, will only create suspicion.
Telling the tale. People learn best from stories. They are among the most poignant and longest held memories of childhood. The first step for any good storyteller, says Blumenfeld, is to connect with the audience. For lawyers this generally means the jury. Find that kernel of empathy between them and the defendant and build a story that reveals it.
The lawyer tells his story of this common vulnerability either as a monologue, such as in a closing statement, or as a dialogue during witness examination. “Meanwhile all the sharp legal skills apply,” says Blumenfeld. “You’ve got to maintain high intellectual rigor, line up good arguments, but add on the acting that puts it over the top.”
Even if the plotline is perfect, no one is going to win a case with legalese, says James. It’s all right to write to another attorney that “On April 23 at 9 a.m. a vehicle driven by the defendant drove into a crosswalk and struck the plaintiff, inflicting grievous bodily harm.”
Keep the facts, but add details that give them life. “On a perfectly clear day, this intoxicated driver — the defendant sitting over there — crashed into this 75 year old grandfather, shattering his leg, leaving him with a break that will keep him for ever playing with his grandchildren, walking to the park, or caring for his invalid wife.” That is a story with which the jury can identify.
“Like poetry, words delivered in a courtroom should be written for the ear, not the eye,” says James.
The final step in the Blumenfeld/James method is constant rehearsal. “Most litigators run through their speeches a few times before the current trial and wing it from there,” says Blumenfeld. He insists that law firms need to train all their young attorneys early and help them develop a courtroom style. It must be a skill kept well honed.
Tricks & techniques. A lawyer stands up, addresses a witness, and all the while is walking over to the jury box, facing the jurors all the while. This common TV-lawyer style fails in its focus. The examining lawyer has given no indication of his relationship with the witness. The jury is confused.
Bring them closer to the heart of the argument by using vocal techniques. A series of questions, each finishing with a raised inflection creates a different relationship than does a string of questions put with a steady or downward inflection.
Proper pacing of delivery is probably one of the toughest skills ACT of Communication teaches. All lawyers get nervous as they stand before a jury. They must rein in the urge to race through summations, and still not be somnambulently contemplative.
TV vs. Reality. Blumenfeld cannot count the number of courtroom dramas in which he’s acted, nor the number of actual court trials he has studied. Based on this near unique perspective, he has a good idea of how the two differ.
“Probably the most shocking difference folks in a real courtroom notice is that the attorneys look more like old accountants, than young lifeguards,” he says. Generally litigation is a privilege given to senior partners.
His pick for the most realistic TV courtroom drams is “The Practice.” He says that everyone on “L.A. Law” was “far too cute.” And the current flood of “Law & Order” spinoffs invariably feature irrefutable evidence, which is seldom available in real life.
One of Blumenfeld and James’ sons is an attorney who has taken his parents’ teachings to heart. He even credits much of his litigation skill to his parents. He received his training free. Others pay $300 an hour or $3,000 a day, plus transportation — basically what a top senior partner is charging his own clients.
— Bart Jackson
Wednesday, February 21
Changes in Space
Commercial real estate has been built and sold for millenia, and the modern office building has remained basically the same for 100 years. But in just the past decade there have been enormous changes in the way employers think about their offices, the technology that goes into building those offices, the way workers interact with their work environment, and the need for a universal language for the commercial real estate industry.
Keith Perske of Group 5 Consultants, a company that specializes in technology implementation in the real estate industry, talks about these recent changes when he addresses the Corporate Real Estate Executives of New Jersey on “The Role of Technology and the Web” on Wednesday, February 21, at 8:30 a.m. at the offices of Cushman & Wakefield in East Rutherford. Cost: $50. Visit www.corenetglobal.org.
After graduating from California State Polytechnic University in l981 with a bachelor’s degree in urban and regional planning, Perske went on to study architecture. He took his initial plunge into real estate by joining an environmental land planning firm in California as a consultant. Three years later he switched to a facilities planning firm, consulting on prisons, campuses, and courthouses. He then became a vice president at Home Savings of America, where he managed 5 million square feet of facilities.
Serving as vice president for Los Angeles-based HOK Architects, Perske helped major firms determine their space needs. “We would ask owners to give us their company objectives, and we would translate it into working space,” he says. “It was amazing how many hadn’t, until that point, ever figured out their own objectives.” Perske’s next nine years were spent at Sun Microsystems, where he worked on developed real estate technology.
It was here that he, with other real estate technology managers, founded OSCRE, Open Standards Consortium for Real Estate, in an attempt to standardize technical communication in the field. Currently Perske works as one of the six people in Group 5 Consulting, which was just launched this past October.
To say that business methods have changed right along with advances in technology is scarcely news, but few people, including the parties involved in commercial real estate transactions, realize how high tech developments in the past five years have changed not only the process, but also the product.
Within the walls. When the first computers were plunked down on office desks in the early-1990s, they were hooked up into office structures that had remain unchanged since the dawn of typewriters. Plant and office layout had evolved to the point that it worked well, and was, therefore, standardized. The greatest change in the preceding century had been the unobserved move from plaster to sheetrock.
Today, however, buildings have grown smarter, from the basic construction stages to an array of final use options. Poured cement can now be fitted with implanted microsensors that can signal back when the substance is actually dry and can alert building management of the location of future cracks.
Wall and skylight insulation has been increased exponentially by the recent application of aerogel. This incredibly lightweight solid state material, nicknamed “frozen smoke,” also absorbs sound, making tomb-quiet offices. The old window washer whose scaffolding inched up and down countless corporate structures is now being replaced by self-cleaning window coatings that employ solar rays to remove dirt.
Employees are more alert thanks to indoor air monitors that create a cool, high-oxygenated airflow in all parts of the office building.
These and countless other adaptations have boosted the effectiveness, safety, and durability of structures, while lowering operating costs. But they have burst upon the scene so quickly that many sellers, builders, and brokers have had time to react. Like today’s improved, more durable auto, structures will cost more, and many of these technology features are hidden. Will they be adapted, and how hard will brokers work to sell them?
Where’s the office? In l987 having a hundred people on the payroll meant that 100 employees would be entering offices every morning, and would draw services from the building until roughly 5 p.m. Now major sectors of the business process may be outsourced — either down the street or across the Pacific — for a few months, and then brought back in-house.
Further, working for a company no longer necessarily means going to work, which is the premise of Jeff Paul’s bestselling “Making Money In Your Underwear.” It is estimated that up to 50 percent of American office workers telecommute at least part of the time. The question of what kind of work space to create for these in-and-out workers remains confusing.
“Corporate real estate builders and designers face a whole new challenge,” says Perske. “One thing is for certain, with more work being done remotely, the old, center-city high rise, built to accommodate all a company’s office needs, has gone the way of the buggy whip.”
Global speak. The term “vacancy” means the same in Mercerville as it does in Manhattan. But if the buyer is coming from Poland or Turkey, an apartment being vacant might mean that occupancy is now open only to certain heirs according to a preset order. As a business expands beyond its traditional borders, so does the need for common definitions in its far flung real estate. Portfolio holders are demanding global standards from their brokers.
This same kind of universal communication standard has come in the technology sectors. With information flow encircling the globe around the clock, the call for standardized data transfer is growing. It was with this in mind that Perske and his partners created OSCRE in 2004.
“We’re trying to boil the ocean, one bay at a time,” says Perske. Current definitions and transfer rules have been hammered out for North America and most of Europe. After that, “well, we keep on working,” he says.
Criticism has been leveled at corporate real estate owners and brokers who have been slow to integrate high tech advances into their process. But in answer Perske provides an historical perspective. “Granted, part of it is fear of losing a competitive edge through information sharing,” he says, “but brokers have not changed because people are unwilling to abandon what’s working just fine, thank you.”
Changes in how and where we work have come swiftly, but with amazing subtlety, in just the past five years. And while real estate brokers may face an adjustment, the flexibility and improved working atmosphere afforded tomorrow’s employee, and the increased productivity given the employer, make the new corporate office a win-win environment.
— Bart Jackson