All posts by joshuamking

The Context of Offensiveness

Back in college, a good friend of mine was editor of the school newspaper (the Oregon Daily Emerald).  On his return from a journalism conference in Florida, we had a lengthy discussion about the appropriateness of including certain images in news stories. Much of the discussion turned on an image my friend called “Spike Boy” – a close-up photo of a teenage boy who had fallen from a roof and impaled himself on the spike of a wrought-iron fence (and lived to tell about it). While hotly debated, we all generally agreed that the newsworthiness of the image – starkly illustrating the severity of the injury, and the miraculous fact that it wasn’t fatal – outweighed the shock it would cause in some readers.

In the 25+ years since, the media has widely embraced this sort of view; I’m writing this from an airport where CNN is breathlessly dissecting security camera images from inside the Paris grocery store where a group of religious fanatics killed four hostages.

Yet CNN won’t show the Charlie Hebdo magazine covers. Not in the wake of the shootings that left 12 dead at the magazine’s Paris office, and not to display the incredible resilience the magazine showed in publishing a brilliant response to the violent attempt to silence it.  Nor will the New York Times, NBC, and a host of other media outlets.

As Ken White of Popehat notes, the NYT’s explanation for this omission, of wanting to avoid offending the sensibilities of some of its readers, raises many questions. Scott Greenfield leans in hard on the rationalizations chosen by the media to avoid showing these images. And thinking back to my long-ago discussion of “Spike Boy,” the primacy given to wanting to avoid offense – and in this case, religious offense, of a type with the offense that drove the Charlie Hebdo killers – seems far more an act of cowardice than of principle.

Yes, “offensiveness” needs to part of the equation when the media decides whether to publish an image. But “newsworthiness” is on the other side of the balance from that equation. It’s hard to imagine something more newsworthy than allowing readers to see the actual images that drove a group of people to kill those who created them. And is NBC really doing its readers a service by writing this:

“All is forgiven,” says the front-page headline over a cartoon depicting a tearful Muhammad holding a “Je Suis Charlie” banner.

Rather than showing this?

Charlie Hebdo Cover


I’m not suggesting that the news media has an obligation to look for opportunities to offend the sensibilities, religious or otherwise, of its readers. But the media IS supposed to inform – and even challenge, at least a little – its readers. It needs to risk offense in service of informing.

For all the potential power and eloquence in words, they are often inadequate to the task – particularly when images, and the offense they invoke, is at the heart of the story.

Reasons I Didn’t Ride – 2014

2014 was my seventh year of bike commuting, and despite a lot of business travel (I hit MVP status on Alaska before mid-year) I had my third-highest number of bike commuting days, with 187 on the year.

So what accounted for the days I didn’t ride?

  •  Business: As usual, the top category. Traveling for business means no bike commute to work, and it took out a whopping 36 days (which, weirdly, was actually exactly the same number of days as last year).
  • Vacation: Despite taking an awesome hiking trip to Scotland with my son, brother and Dad, I only took 16 days of vacation on the year. The only number on this list I’m looking to increase . . .
  • Family: Now that my kids are fully ensconced in high school, family-related business only preempted riding 7 times.
  • Illness: Being too sick to ride sucks, and it cost me a record-high 5 days in 2014 (after missing zero days for illness in 2013).
  • Other: Social stuff kept me off the bike for another 4 days. However, unlike years past, neither weather nor mechanical issues cost me a single day of riding in 2014.

With my travel schedule, it’s hard to see hitting 200 rides in a year again. Nonetheless, as 2015 begins, that number is once again my goal.

The “Manly” Lawyer Loses?

The ABA Journal has the news: social science researchers have parsed the data and concluded that oral advocates exhibiting more “manly” speaking styles are likelier to lose, while those displaying more confidence in tone are likelier to lose. A few random observations:

  • The data is based on 200 researchers (sourced via Mechanical Turk) listening to recordings of 60 lawyers making the 8-word intro (“Mister Chief Justice, may it please the court”) at the beginning of oral argument before the Supreme Court. Hold your jokes about analytical rigor and the social sciences.
  • There’s a big correlation/causation issue here. More confident-sounding speakers may well sound that way because they’ve got the better case and they know it.  Even lawyers (who aren’t even social scientists) can build an algorithm that can predict Supreme Court decisions with over 70% accuracy. And you can be damn sure the lawyers working in the trenches on these cases know whether they are on the inside track or slogging messily uphill.
  • I suspect that oral argument at the Supreme Court is more a matter of kabuki theater and ego-burnishing than it is likely to make difference in the case one way or the other. I mean, I’d do it in a heartbeat if I had the opportunity, but I wouldn’t harbor any illusions that my oral advocacy would matter nearly as much as the briefing (to say nothing of the existing predispositions of the justices).
  • Finally, the “manliness” point: I suspect that “manliness” in this context is roughly synonymous with “aggressiveness.” Aggressiveness is a quality many attorneys pride themselves on – and even advertise on the basis of – but in my experience extremes of aggressiveness in representation are usually counter-productive. Other people don’t find such displays attractive, so they only work if they succeed in intimidating the other side. For good advocates, overt aggression is a tactic of last resort.

And so we’re back to correlation and causation – the “manly” advocates may show up on the losing side more often simply because these attorneys knew they were facing an uphill fight and employed, consciously or not, their worst-case approach.

Unfortunately, while aggression is a low-percentage tactic even when negotiating or arguing in general, it got to be singularly unhelpful when arguing before the Supreme Court.

h/t Lawyerist

A Holiday Wish for Better Bike-Car Interaction

Riding on the tiny bits of bike-centric infrastructure in Seattle – the bikeways on Broadway and 2nd Avenue – offers a glimpse of what urban cycling could look like if we had meaningful planning and building around it. It would be easier, less stressful, slower and safer.

But until that day, those of us who ride daily in the city must contend with infrastructure and traffic rules that are designed primarily for cars. As a result, it’s safest for cyclists to “ride like cars” and truly share the road (rather than just a tiny slice of it).

But what if, in the embryonic period between vehicular cycling and fully-separated bike infrastructure, cyclists and drivers alike developed rules – not so much laws as guidelines – for sharing the road?

I know, it’s a pipe dream, as most drivers can’t relate to the issues cyclists are dealing with when navigating the city’s car-focused streets. But in the spirit of holiday optimism, here are my thoughts on what these rules might look like:

  • Stoplights and stop signs are optional for bikes.
    • Bikes: You can ride through a stop signal when it’s safe to do so – meaning no cross-traffic or other dangerous condition. Otherwise, wait along with the cars.
    • Cars: You won’t get butthurt because some cyclist ran through a red light when there wasn’t any cross-traffic. Their doing so impacts you not at all, except for some vague sense of unfairness in your lizard brain. Let it go.
  • Bikes will “take the lane” whenever it’s safest to do so.
    • Cars: Most of you don’t realize that bikes who give you enough room to pass often have to put themselves into the low-visibility “door zone” to do so. This substantially raises the risk of being “doored” or colliding with a pedestrian darting out between parked cars. It also make it much harder for cars crossing or turning onto the street to see the cyclist before pulling out. And no, the fact that the city of Seattle has stupidly placed bike lanes right in the door zone on many streets doesn’t magically make it safe for cyclists to ride in those lanes.
    • Related bonus for cars: Look before opening the damn door.
    • Bikes: Take the lane more often. You’re not doing anyone any favors by wobbling along in the door zone. But you should also be making an effort to move along as quickly as you safely can, and give cars the opportunity to pass when it is safe to do so.
  • Passing.
    • Cars: Don’t pass a bike, particularly one that is taking the lane,  unless you plan on driving straight and at speed for at least a few more blocks.  If you’ve got a notion to turn right, cruise for a parking space, or drive slowly while looking up an address on your iPhone, just stay behind the bike.
    • Bikes: Don’t pass cars on the right (or the left, on one-way streets) when you are both about to enter an intersection. Even if – hell, especially if – you’re in a bike lane.
  • Safe Driving/Riding.
    • Cars: Drive predictably. Don’t tailgate or crowd bikes.
    • Bikes: Ride predictably and visibly. Don’t do dumb stuff. Have working brakes on your bike.

It seems so common-sensical, but of course, that’s too much to expect in a world where people still think bicycles need to be licensedbikeways get torn out in favor of parking, and everything on the road is built in deference to King Car.

But just you wait – if I don’t get my Christmas miracle of drivers and cars getting along (which, in fairness, they do better on Capitol Hill than in most places), I can still look forward to end of urban cars. That’s on its way, and soon (my musings on that subject to come).

Happy holidays.

Ultimatums and Bluffs

Ultimatums can have their place in any negotiation, but they are best used sparingly and with care. And while I’ve gotten the best results by being quite direct in negotiations, being too direct – throwing down an ultimatum – raises a significant risk that your discussions will come to an abrupt end.

Which means, of course, that you should be OK with that outcome if you make an ultimatum.  “My way or the highway,” as they say – and if the other side opts for “highway,” that’s fine.

The corollary to this principle is that it is a mistake to bluff when making ultimatums. The reason is simple: if you make an ultimatum, and then walk it back when the other side resists, you’ve cost yourself a massive amount of negotiating credibility.  It makes the other side wonder why they should believe anything you say, making it doubly hard to get what you need in the deal. 1

Unfortunately, I regularly experience firsthand attorneys violating this principle with their own particular brand of ultimatum: the lawsuit threat.

It’s kind of depressing that attorneys reach for this little trick so reflexively. But I suppose to some, if you’ve got that hammer, everything starts looking like a nail. And it must work at least some of the time, at least when dealing with power imbalances or inexperienced negotiators.

But the problem with the lawsuit threat is the same problem of any ultimatum: if you don’t intend to follow through with it, and the other side isn’t impressed with your threat, you’ve got nothing left to do but slink away.

Maybe that’s OK for some attorneys, but in a profession where reputation is so important, it feels awfully cheap to me to just throw one’s credibility around. And there’s a related problem as well, as lawyer (and Harvard business school professor) Ben Edelman just found out: that your threats will reveal, via the magic of social media, what an insufferable tool you really are.

All of this is why most savvy attorneys rarely make lawsuit threats – they just file.  Or they only make a threat when their client is ready to pull the trigger on a lawsuit.  2

So back to the question: why would an attorney threaten a lawsuit he or she had no intention of bringing? Maybe because they feel like they have leverage over a small business, which has heard the tale of the lawyer suing for $10 million over a dry cleaning mistake.  Or because they feel they can browbeat or intimidate a low-level employee pr small business owner into getting their way (Harvard prof Edelman is obviously big on this tactic).

Not that any of that is right, but at least I can understand the logic.

But why would a lawyer make a threat like this to me?  It takes less than minute to look my background up, see that I may know a few things about media law and negotiating, and realize that the ol’ lawsuit threat bluff isn’t going to work.

Why would they make it to a restaurant owner with a large social media following, who can effectively embarrass them on a national stage?

It should occur to them that their target may turn the tables on them, and make their demands look like the churlish “standing on rights” that they typically are.

Yet lawyers continue to do this, over and over again. 3 It’s just appalling how little work goes into thinking through the efficacy of rolling out the lawsuit threat.  Believe it or not, many businesses don’t quake in fear at the thought of being sued. Many of us will just tell you to get lost – or if you really piss us off, we will make you pay, both reputationally and in actual dollars.

So lawyers, trust me – the “tool” of clearly explaining your position and asking politely for something reasonable? That’s a hell of a lot more effective than threatening to sue.

And it’s certainly a lot less likely to end up with you at the center of an epic media shitstorm.


  1. This is also why bluffs work when playing poker. You actually want your bluffs to be called occasionally precisely because you don’t want credibility – predictability – at the poker table.
  2. On exactly one occasion in my legal career did I threaten a lawsuit I didn’t intend to follow through with. I still cringe thinking of it. And no, of course my bluff didn’t work.
  3. OK, and non-lawyers, too – witness the buffoonery of clown-troll Charles Johnson’s many lawsuit threats.

Ethics in Negotiation

When I first started blogging, I was exclusively doing mergers and acquisitions work, and a frequent topic for my posts was the ins and outs of negotiations.

A recent kerfuffle in the legal marketing world has raised an issue I haven’t addressed before – what are the acceptable limits of veracity in negotiation?  Or to put a sharper point on it, to what extent is it acceptable to lie to counterparties when negotiating?

Mirriam-Webster defines a lie as to “make an untrue statement with intent to deceive” or “to create a false or misleading impression.” This covers both affirmative lies and lies of omission.

And here’s the thing: anyone with the least experience negotiating knows that there are plenty of lies that are acceptable in the negotiating process.  It’s routine for parties to attempt to create a false impression of their level of interest in a deal, their bottom-line terms, or their feelings about their counterparties.   Many are the occasions when I’ve overstated my leverage, feigned indifference, and laughed at jokes that fall flat.

But I’ve always drawn the line at making shit up.

The reason it’s acceptable to  misrepresent one’s underlying motivation or feelings is that, fundamentally, motivations and feelings aren’t facts. They are fluid conditions, subject to change. They can shift based on any number of internal or external factors – including the persuasive powers of the person on the other side of the negotiation.

For example: if you ask “how much EBITDA did your company earn last year?”  your question seeks data that is fixed, and you expect a straightforward answer.   But asking “what’s the lowest price you’d sell your company for?”  The answer to that question isn’t fixed – even if your counterparty gives you the most transparent answer they can at the time, the “real” answer can – and probably will – change.  But because it’s not fixed – and it may not even be properly definable, given the fluidity involved – negotiators know that it is neither helpful nor required that they try at every turn to be completely transparent about their motivations.

So this is where people get hung up: they conflate this acceptable obfuscation of feelings, motivations and positions with the unacceptable invention of things that aren’t true.

There is a big difference between feigning a lack of interest in an offer and materially misrepresenting your operating results or professional background. Letting these lines get blurry – letting the facts get blurry – can make for a quick trip to a negotiator’s reputational ruin.

Ebola Bike Ride!!

Ebola craziness has come to this: completely asymptomatic nurse Kaci Hickox – whose only crime was to treat unfortunates in West Africa for Ebola – is trailed by police when she defies a state-ordered home detention to go for a bike ride.

Go, Kaci – ride your bike!

Here’s my take from yesterday on the nuttiness of letting our reactionary “laboratories of democracy” create quarantine policies based on fear rather than science.

Pronto First Look

“Pronto,” Seattle’s bike share system, launched today, with some 500 bikes spread across 50 stations. A couple of those stations are mere blocks from my office, so I took one of the shiny green things for a quick shakedown cruise.

The system operates similar to those found in other cities – insert your key fob (if you’re a member) or use the kiosk to buy a pass (if you’re a visitor), press a button to unlock a bike, adjust the seat height if needed, and off you go.

Unlike the 3-speed bike share bikes I’ve ridden in flat places like D.C., Denver and Columbus (yeah, freaking Columbus freaking Ohio got bike share before Seattle!), the Pronto bikes have a 7-speed internal hub. The shifting mechanism works well, but as you’d expect with heavy bikes that need to cater to a wide swath of people, the gearing is set pretty low. These things aren’t built for speed, and those accustomed to riding single speed are rarely going to need to shift out of gears 6 and 7, even climbing Pine Street.

It remains to be seen how well the helmet system will work. Right now it’s on the honor system, with the dreaded helmet vending machines expected sometime next year. I really hope the system proves popular, and the stations expand around town. It’s a great addition to Seattle’s transportation infrastructure, particularly for quick point-to-point trips around downtown and Capitol Hill. I’m excited to use it more in the months to come.





I Don’t Like the 2nd Ave Bikeway

It’s a bit out of my way, but I took a detour this morning and rode into work along the entire length of the new 2nd Ave bikeway, which opened bright and shiny and new this morning.

For those not familiar with Seattle, the bikeway runs down a particularly busy street in the heart of downtown.  It replaces a traditional bike lane that was the scene of a tragic death just days ago.  Like most bike lanes in Seattle, the old 2nd Ave lane was dangerous for putting riders directly in the “door zone” of parked cars.  And it was doubly dangerous because it ran downhill, on a busy one-way street also running downhill, and was on the left where fewer drivers would expect to see bikes.

The new bikeway is still on the left, but it’s separated from traffic and benefits from a system of bike-specific lights designed to prevent collisions with left-turning vehicles. This morning had a bit of a festive air, with lots of riders trying out the bikeway, and earnest volunteers from Cascade Bicycle Club cheering riders along and offering ready-made postcards to send to the mayor thanking him for adding this bit of cycling infrastructure.  The bikeway needs a little more work – better demarcation between the uphill and downhill lanes, and some surface smoothing in a lot of places – but it’s certainly an improvement over the old lane . . .

if you like riding in the bike lane.

If this morning was any indication, riders are going to rely on the bike signals at their peril.  I had not one, but two cars blow through red turn signals (and green bike signals) across my path.  Fortunately for me, when I do ride in bike lanes, I always ride assuming cars can’t see me – which means never, ever, ever going through an intersection when a car traveling the same direction is next to or slightly ahead of me.

I fear that the bikeway has the potential to make matters worse, at least until a critical mass of riders are passing through downtown.  At several intersections, a line of parked cars separates the bikeway from traffic.  That’s great, but it also prevents left-turning vehicles from seeing downhill bicycle traffic, and vise-versa.  If those vehicles don’t mind the left turn signal (as the cars did to me this morning), there will be more collisions on 2nd.

For riders, the bikeway can’t be a panacea.  It’s not a replacement for critical thinking.  Those little bicycle signals may look pretty, but riders will continue to need to pay close attention to what vehicle traffic is doing.

And for me?  The next time I ride downhill on 2nd, I’m going to do what I’ve always done – take the lane.