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Professor Patrick Barry believes firmly in the power of feedback to improve performance. He has taught and written extensively about the topic, and now he has collected his thoughts in a book—the first in a projected series—titled Feedback Loops: :  

By Bob Needham
Michigan Law

Professor Patrick Barry believes firmly in the power of feedback to improve performance. He has taught and written extensively about the topic, and now he has collected his thoughts in a book—the first in a projected series—titled Feedback Loops: How to Give and Receive Quality Feedback.

Borrowing a phrase from fellow author/academic Julie Lythcott-Haim, Barry said effective feedback can be “the ultimate human growth hormone.”

“I like that description because when thoughtfully delivered and processed, feedback has a wonderful way of accelerating people’s development and performance. It’s like a steroid for self-improvement,” Barry said.

Barry—a clinical assistant professor of law and the director of digital academic initiatives at the Law School—has written several books on advocacy, including Good with Words: Writing and Editing, The Syntax of Sports, and Notes on Nuance. He has made Feedback Loops available as a free, open access e-book as well as a traditional paperback.

Barry recently answered five questions about some  topics covered in the book:

1. Why is it important to provide different types of feedback in different situations?

There are a couple of law professors at Harvard who, in a book called Thanks for the Feedback, identify three different types of feedback: appreciation feedback (applauding someone’s effort and performance), coaching feedback (showing them a better way to do something), and evaluative feedback (telling them where they stand). If you only know how to provide one of those, you are going to limit the help you can provide. You might also create some feedback friction: somebody who comes to you for coaching feedback, for instance, may get increasingly frustrated when you don’t offer anything other than appreciation feedback. Even praise can get tiresome when what you are really looking for is some developmental guidance.

Feedback works best, I think, when it is carefully tailored to the individual needs, goals, and interests of the recipient. Whenever I ask people about the particular kind of feedback they’d like to receive, nobody ever says, “The most generic feedback possible.”

2. What is the single biggest thing people tend to get wrong about the concept of feedback?

The optimal ratio of formal vs. informal feedback. Especially in schools and big organizations, a substantial amount of time and other resources is spent on formal types of feedback (grades, performance reviews, annual reports), even though a lot of the best learning and insights are generated by informal types of feedback (quick debriefs after meetings, frequent check-in chats over coffee, personal notes of encouragement via text or email).

I’m not saying that formal feedback is valueless. The documentation it provides can clarify expectations and usefully catalog someone’s development. I simply worry that formal feedback tends to get overemphasized and often arrives too late to be helpful. Why wait for December’s end-of-year review to fix a problem that started festering all the way back in February?

3. What makes “noise” such a problem when we’re thinking about feedback?

Noisy feedback, which is feedback that is so unpredictably inconsistent that it becomes pretty much meaningless, creates cognitive chaos. Imagine I cook a meal for six people. One of them says they hate it. One of them says they love it. Two of them say it is too salty. And two of them say it is not salty enough. What exactly am I supposed to do with that information? Should I add more salt next time? Should I add less salt? Should I scrap the recipe entirely?

Anybody who has received wildly different reactions to a paper they wrote, outfit they bought, or social media post they shared knows how frustrating this kind of noisy feedback can be. You’re left without a clear sense of how to proceed.

4. How can feedback be an effective tool in fighting “impostor syndrome”?

People who are struggling with feeling like a fraud can be tremendously helped by the support and reassurance that come from feedback that essentially says, “Your input and insights are valuable. We’re really glad you’re here.” Even the smallest gestures of welcoming and belonging can have a powerful impact. They’re like imposterism kryptonite.

5. What’s an important pitfall to avoid when delivering feedback? When receiving it?

When delivering feedback, it can be helpful to first check if the person is actually ready to receive your feedback.

A cognitive psychologist named LeeAnn Renninger offers a couple of questions you can try asking. One is—and I’m paraphrasing a bit—“Do you have a few minutes to talk about how that meeting/presentation/interview/project went?” The other is something like, “I have some ideas on possible ways to improve. When would be a good time to share them?” The key to both questions is to understand that surprise feedback is risky feedback. Blindsiding someone—especially with criticism—isn’t typically a great way to build rapport.

As for receiving feedback, I get nervous when people (including myself) only have a single, homogeneous source of feedback. Less than ideal things tend to happen, for example, when teenagers exclusively get feedback from other teenagers or when dads exclusively get feedback from other dads. A better approach, in my view, is to create a productively diverse “Feedback Board of Directors.” Groupthink isn’t a feedback virtue.

On October 15 Rite-Aid Corporation filed for bankruptcy. There were several reasons listed as causes for the filing, including declining sales and legal exposure to mass opioid litigation. :  

By J.J. Conway

On October 15 Rite-Aid Corporation filed for bankruptcy. There were several reasons listed as causes for the filing, including declining sales and legal exposure to mass opioid litigation. Rite-Aid filed for protection under Chapter 11 and hopes to restructure its national operations. The pharmacy retailer is another in a string of corporate bankruptcies that saw a significant rise in 2023.

Inflation, a tight labor market, and ongoing supply chain issues have been identified as potential contributing factors for the rise in recent bankruptcy filings. So, the question naturally arises, when a company chooses to file bankruptcy — either Chapter 7 or Chapter 11 — what happens to an employee’s benefits?

In a Chapter 7 bankruptcy, the company is liquidating its assets to pay creditors, and ceases operations whereas in Chapter 11, the company continues operating, while trying to reorganize its finances to stay in business. Each type of bankruptcy has a different impact on its employees, but the ERISA statute does offer some measure of protection for affected employees.

The Employee Retirement Income Security Act of 1974 — or ERISA — governs retirement plans, including pensions, profit-sharing, and 401(k) plans, in addition to welfare plans such as health, disability, and life insurance plans. ERISA also regulates the continuation of health care coverage through the COBRA and HIPAA statutes.

What happens to an employee’s retirement benefits in bankruptcy? If a bankrupt company terminates its pension plan — defined benefit plan or its defined contribution plan — the plan’s participants become 100% vested in their accrued benefits. If the employer terminates a defined benefit plan because it can no longer fund the plan or pay out promised benefits, the Pension Benefit Guaranty Corporation (PBGC) insures some (but not all) benefits, and typically pays benefits after termination up to a certain maximum guaranteed amount.

Although defined contribution plans, like 401(k) plans, are not insured by the PBGC, those amounts are protected from the company’s creditors. In a Chapter 11 reorganization, companies may decide to either terminate or continue their retirement plans. If a company chooses to continue them, they have the right to stop providing any future contributions or matching funds.

What about healthcare? For group healthcare plans of a bankrupt company, the plans must notify employees within 60 days of any material reduction in their covered benefits. If a reorganizing employer discontinues most plans, employees may be eligible to continue coverage in its remaining plan.

If employees are covered under the employer’s health plan and subsequently lose their job, have their hours reduced, or get laid off and lose coverage because of the bankruptcy, COBRA provides them with the right to purchase extended health coverage under the employer’s existing plan.

COBRA continuation coverage may not be available if the company discontinues its health plan entirely. Employees and their dependents will have to seek other coverage such as Health Insurance Marketplace or special enrollment in a spouse’s group health plan if available.

Health benefits for retirees or under collective bargaining agreements may be protected under special bankruptcy rules. If there are unpaid health claims and the plan sponsor has declared bankruptcy as well, a plan participant should consider filing an actual proof of claim with the bankruptcy court.

The key for adversely affected employees is to monitor the bankruptcy process and follow the plan rules that govern their retirement and health benefits and know in advance what happens to those benefits if they are terminated. There are a number of documents that outline the rights of participants, including Summary Plan Descriptions and the Summary Annual Report if available. Both documents contain important contact information for following up on pending benefit claims. Employees may also be able to  trace their rights by securing copies of the prior earnings, such as pay stubs and individual benefits statements.

These documents should provide the amount of money or value in retirement or pension funds before the bankruptcy. In the event of a bankruptcy or reorganization, this documentation will be critical.

An employer’s bankruptcy can be a difficult process for employees, if only on an emotional level. When a company goes through a formal reorganization or liquidation, the best course of action is to be well-informed about the proceedings and the employee’s plan-based rights, and to move quickly to protect those rights.
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John Joseph (J.J.) Conway is an employee benefits and ERISA attorney and litigator and founder of J.J. Conway Law.
 

Audio and video have always proved to be reliable evidence for lawyers and prosecutors presenting their cases. :  

By A. Vince Colella

Audio and video have always proved to be reliable evidence for lawyers and prosecutors presenting their cases. For example, surveillance footage of a robbery in progress, clearly showing a person armed with a gun walking into a store, robbing a clerk and escaping would normally be an open and shut case for a prosecutor. However, advancements in AI technology have now made it possible to alter sounds and images in a manner that is nearly undetectable. The manufacturing or altering of evidence is not something entirely new. However, the ability to distort reality has taken an exponential leap forward with “deepfake” technology. Lightning advancements in artificial intelligence have not only created an ability to alter images, but to create videos of actual people doing and saying things that never occurred. Machine learning has made these created images much more realistic and nearly incapable of detection. An evidentiary nightmare for the court system.

Fake video depictions of real people began to emerge on the internet in late 2017. Surprisingly, the technology did not require elaborate Hollywood cameras and editing equipment. The new technology allows anyone with a smart phone to mimic the movements and words onto someone else’s face and voice to make them appear to say or do anything. And the more video that is fed into the deep-learning algorithms, the more convincing the result.

The danger of deepfake technology is two-fold. First, it may be used, as in the example above, to demonstrate the commission of an act or statement attributable to a person that did not take place. Second, it opens the door to deepfake bias that can be used to delegitimize actual audio and video evidence. Recently, Tesla was sued by a family of a man who died when his car crashed while using the self-driving feature. During the trial, the family’s lawyers cited a statement made by Tesla founder, Elon Musk, in 2016 claiming that its Model S and Model X vehicles were capable of being driven autonomously with greater safety than a person. While the statement was in fact uttered by Musk at a conference, lawyers for the car company suggested that Musk was the subject of several fake videos saying and doing things that he had not said or done — casting doubt on whether his statements about the safety of his vehicles were true.

The capacity for creating undetectable videos of everyday people has created a shroud of ‘doubt’ over what we have come to accept as reliable. Thus, the ability to manufacture images and sound undoubtedly may cause jurors to question otherwise reliable evidence. A double edge sword of evidentiary deceit.

This has opened the floor to debate among legal scholars on how to remedy deepfakes and the bias it creates. The challenges include (1) proving whether audiovisual evidence is genuine or fake; (2) confronting claims that genuine evidence is a deepfake; and (3) addressing a growing distrust and doubt among jurors in audiovisual evidence. From an authenticity standpoint, we might see a sharp rise in the use of AI experts to confront and present evidence.

Analysis of metadata and source information will likely be used to prove the veracity of an image. Experts will also be required to weigh in on unusual or unnatural elements within an image. For example, if an image has perfect symmetry of flawless patterns typical in AI-generated images, experts can be called to testify to these unauthentic features. However, deep scientific dives into reliable video evidence will not only prove costly to the litigants but also be disruptive to the efficiency of our judicial system.

Complex legal issues caused by the evolution of science and technology are often solved with the basic tenets of jurisprudence. Historically, solutions to problems surrounding the presentation of evidence in legal proceedings were governed by existing, non-exhaustive means of authentication in the state and federal rules of evidence. While authenticity can be proved in several ways, lawyers primarily rely on witnesses to confirm that what we see and hear in audio-visual reproduction exists in real life. However, because artificial intelligence is so difficult to detect, forensic and scientific examination will likely be the best way to ferret out reliable evidence from the deepfakes.

The importance of maintaining judicial integrity cannot be overstated. Therefore, forensically keeping pace with artificial intelligence is paramount to the fair administration of justice and to preserve our country’s faith in the system.

Lawyers and judges must stay mindful of the potential for fraudulent audio-visual evidence and to ensure that jurors are not duped into thinking something is suspicious when it is not.
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Vince Colella is a founding partner of Southfield-based personal injury and civil rights law firm Moss & Colella.

Enough! That is the word Cassidy Hutchinson, a former member of the Trump team, uses as the title of her new book that pillories her former boss. :  

By Berl Falbaum

Enough!

That is the word Cassidy Hutchinson, a former member of the Trump team, uses as the title of her new book that pillories her former boss.

Hutchinson is right in using the word “enough” but she does so in the wrong context. It is enough already to make her and other of her former colleagues who have written critical books on Trump as heroes. She and the others, many who appear as “objective” analysts and “experts” on political TV talk shows, are working hard to redeem their soiled reputations and make a buck along the way with books and honorariums for speaking engagements.

While in the White House, Hutchinson, special assistant to Trump’s chief of staff, Mark Meadows, along with other former Trump aides, helped spread the president’s lies and covered up his corruption and countless ethics and moral violations. None resigned and all kept silent, at a time, when speaking out could have made a difference.

Hutchinson is no Army Lt. Col. Alexander Vindman who put his career on the line when he testified publicly that he heard Trump threaten Ukraine’s president, Volodymyr Zelenskyy, by withholding aid unless he (Zelenskyy) stated that the Ukraine was investigating Joe Biden for corruption.

Hutchinson and the other women in Trump’s White House world ignored his perverse sexual history, which included dozens of charges of sexual assault, including rape, his bragging about assaulting women, a conviction of sexual assault, hiring a porn actress while his wife was pregnant, and discussing his daughter, Ivanka, with radio host Howard Stern in ugly, disgusting sexual terms. That’s only part of his sordid sexual record. This is the man who Hutchinson says she “adored.”

But here is the kicker: While some aides finally resigned after the January 6 insurrection, Hutchinson stayed on. Not only did she remain in her job, but she applied for a job with Trump after he returned to Mar-a-Lago. She didn’t get the job because, Meadows told her, she says, that Trump did not think she was sufficiently loyal.

If she had been hired in Mar-a-Lago, she does not know if she would have testified before the January 6 Select Committee or gone public with her criticism of Trump. She says:

“I still felt that loyalty to him at the end of the administration. And I worry that if I had gone down to Florida, then that would have only grown, and I would not have come forward. I would hope that I would have come forward to do the right thing still. But when you’re in that environment, it becomes a lot more difficult.”

No, it’s not really that difficult if one has principles and has a basic understanding of right and wrong. And we are not talking here about minor offenses that can, in good conscience, be explained away. We are talking about a president who may well be the most corrupt public official ever to hold office – any office.

It should not be “difficult” for Hutchinson to conclude, even by her own tortured ethical/moral standards, that is traitorous to try to overturn an election and incite an insurrection that killed five people and injured more than 100.

So, she decided to do the “right thing” after being spurned and rejected by Trump. She testified before the January 6 Select Committee and wrote her book that has a full portrait of her on the cover.

She believes Trump must be stopped from winning a second term; “this is a make-or-break moment.”  In interviews on her book, she warns us that Trump is a “most grave threat to democracy.”

“We’re talking about a man who at the very essence of his being almost destroyed democracy in one day and he wants to do it again.

“He has been indicted four times since January 6. I would not have a clear conscience and be able to sleep at night if I were a Republican,” Hutchinson wrote.

“Now is the time, if these politicians, these men and some women that are currently in Congress, want to make the break and want to take the stand, they have to do it now. We can’t wait any longer for them to do it. I don’t know why they are so willing to support him. [In effect, she is describing herself.]  I think it’s extremely disappointing and it is not a hard issue to take.”

She certainly cannot be accused of being subtle. This is the man she wanted to continue to work for in the coming years.

Effusive, gushing praise for her unmitigated “heroism” and her book comes from The Wall Street Journal, The Washington Post, The New York Times, Salon, and others but, no, Hutchinson is hardly a hero. Nor are those who served Trump but have “seen the light.”  

More suitable adjectives, among others, are hypocrite, charlatan, schemer, chameleon and opportunist. What is particularly frustrating in all the coverage I have seen on TV and read in the papers, is that no one has taken Hutchinson to task or even challenged her hypocrisy.

Warning to companies who may employ these former Trump “loyalists:” Be careful what you discuss with them.

Given that Hutchinson wrote her book after failing to be employed by Trump, a better title might have been, “Revenge.”
 

The UAW strike is putting benefits back in the public eye. And with good reason. Employee benefits are a significant portion of an employee’s total compensation. :  

By J.J. Conway
J.J. Conway Law

The UAW strike is putting benefits back in the public eye. And with good reason. Employee benefits are a significant portion of an employee’s total compensation. Years ago, when employers distributed glossy benefit guides to their employees, they usually contained a letter from the company’s chairman extolling the generosity of the “hidden paycheck.” The hidden paycheck referred to the company’s benefits package. These guides encouraged a company’s workforce to look beyond the biweekly payroll cycle and take stock of the entire financial picture that came from one’s employment.

Estimates vary, but the most reliable data finds that approximately one-third of an employee’s overall compensation is delivered in the form of benefits. The most popular group benefit program offerings include individual and family healthcare, term life insurance, short and long-term disability programs, and defined contribution retirement accounts (e.g., 401(k) plans).

And a legal term most commonly used to describe these employee benefit plans is “qualified.” A qualified plan is one that enjoys favorable tax treatment by the state and federal government.

A qualified plan delivers direct monetary benefits to an employee without being taxed. Health insurance, for example, may cost an employer upwards of $20,000 per year to insure an employee and a family of four. With its qualified status, that healthcare benefit translates into around $26,000 (or more) in extra compensation that is paid directly to an employee and is tax-free.

Today’s benefit programs can be a serious recruiting tool for employers in competitive industries. The better the benefit plan, the better the talent pool. Some plans offer remarkable benefits – months of paid leave for both parents, reimbursement of adoption-related expenses, education reimbursement programs, sabbatical underwriting, and so on. Many of these programs receive favorable tax-treatment.

Employee welfare benefits, such as healthcare, life insurance, and disability insurance, act like a protective backdrop until they are needed. When they are, these plans quickly emerge into the foreground and become a major focus of an employee’s or the employee’s family’s financial life.

A few examples might help illustrate just how important certain benefits are for an employee and that employee’s family. Consider an employee who earns around $90,000 per year and has a standard benefits package. The employee’s wages are subject to state and federal taxes along with Social Security and Medicare withholdings. After these deductions, the employee’s net pay is reduced to around $58,500.

If this same employee enrolls in the company’s health plan, the employee is provided healthcare coverage on a tax-free basis. That benefit has its own value (the cost of the insurance and no accompanying taxes). Now, if the employee suddenly suffers an acute medical situation, the employee may require emergency services, and those services may be followed by intensive care at a hospital. Then, the employee may need recovery services after discharge. In such a scenario, the medical charges could easily reach $200,000 or more – almost four times the employee’s net salary.

In an expensive healthcare case like the one in our example, the healthcare coverage offered to an employee and/or the employee’s family is the essential employee benefit. Here, the healthcare plan protects not only an individual’s actual physical or mental health, but a family’s financial health and savings as well.

Now, let’s say, this same employee is unable to return to work full-time and earn the same $90,000 salary. Here, the focus shifts to the benefit of long-term disability insurance. The employee who is (for lack of a better term) an income-producing asset, has suddenly stopped producing an income. What happens now? The bills don’t stop, and the mortgage isn’t paused. Here, the disability plan is called upon to make up for the lost income.

Suddenly, these two welfare benefits are funding the employee’s entire financial life and protecting whatever net worth the employee has amassed. If either of those benefits fail, financial peril soon follows.

Benefit plans are an important part of an employee’s overall financial wellbeing. They are contracts, set forth individual rights, and contain enforceable promises. When valid claims for benefits are submitted and denied, there is a natural emotional reaction that develops.

With so much at stake, if there is a breach, the losses can quickly exceed the employee’s total income and can rapidly wipe out a family’s savings.

In such a scenario, enforcing the promises of the “hidden paycheck” may be the only hope of surviving financially.
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John Joseph (J.J.) Conway is an employee benefits and ERISA attorney and founder of J.J. Conway Law in Royal Oak.

The Founding Fathers of the United States were a distinguished lot, and included five future presidents of what ultimately would become the most powerful and admired country in the world. :  

By Tom Kirvan
Legal News

The Founding Fathers of the United States were a distinguished lot, and included five future presidents of what ultimately would become the most powerful and admired country in the world.

Its stature as the foremost economic, military, and political force in the world didn’t happen by accident, but instead was the result of a magnificently designed system of government that continues to stand the test of time against challenges real and imagined.

Nearly half of the Founding Fathers were lawyers, which largely explains the group’s ability to craft a framework of government that has endured since the U.S. Constitution was adopted 235 years ago.

Historians rate that document as a governmental masterpiece, akin to the artistry of a Rembrandt, da Vinci, van Gogh, or Michelangelo. It served as the structure for the development of American civilization, defining a series of inalienable rights and freedoms that are enshrined in the Constitution through the Bill of Rights.

As the first 10 Amendments to the Constitution, the Bill of Rights guarantees certain civil rights and liberties to each individual, including freedom of speech, worship, and assembly, as well as the right to bear arms and to be afforded due process of law.

The Bill of Rights derives from the Magna Carta of 1215 and was adopted as a single unit in 1791, constituting a collection of guarantees of individual rights and of limitations on federal and state governments.

The 10 Amendments, of course, have been the subject of much consternation over the past two centuries, as state and federal courts have attempted to define the legislative intentions of the Founding Fathers who were operating in the context of a world where cars, computers, and the conveniences of modern society didn’t exist.

Fortunately for us, what did exist was their foresight in establishing a three-pronged system of government that came complete with a series of checks and balances to prevent one branch from usurping the power of the other two – much to the dismay of any would-be dictator.

Not surprisingly, there have been several ill-fated attempts to redefine that system of governance, each of which has been thwarted by an American judiciary dedicated to upholding the rule of law. The judiciary’s pivotal role in protecting our democracy stems in part on how its members are selected, especially at the federal level where lifetime appointments automatically raise the stakes throughout the nomination and confirmation process.

Candidates for federal judicial office are subject to a grueling and time-consuming selection process, where virtually every part of their professional and personal life is under public scrutiny.

It begins by nature of the job itself, which requires that each candidate be a licensed lawyer who has earned a juris doctor degree from an accredited law school in the United States.

The vetting involves the FBI and the American Bar Association, which separately weigh in on each candidate’s qualifications and suitability for federal office. If they make the grade on both counts, candidates then must appear for a hearing before the Senate Judiciary Committee as a prelude to a formal vote on the nomination by the full Senate. By constitutional design, the process helps ensure a federal court’s independence from the President and Congress, which can be a many splendored thing when either branch has nefarious intentions in mind.

Such as when a president began filing a series of frivolous lawsuits across the country, challenging the results of a presidential election on a number of baseless grounds. In each case, some 63 in all, state and federal courts tossed aside the claims, dismissing suit after suit for a glaring “lack of evidence.”

The threat that he and other political extremists continue to pose to our democratic institutions of government will be on full display in the coming months as his legal troubles continue to mount.
We can only hope that his reckless disregard for the rule of law will prove to be his ultimate undoing.