What is the first thing you will say to Sandra?
Lawyers are trained to deal with facts, evidence and strategy. When pondering the question above, perhaps your mind went off in the strategy direction. Sue the employer for negligent retention. Find out who the gun distributor is. Perhaps you began mentally gathering evidence: Who else heard the coworker's threats? Why didn't the company do a background check before hiring the employee? What was HR's response to Samantha's concerns?
Such forward thinking can lead to missing what's important to your client here and now. The questions that really matter to Sandra are likely to be, "How is your daughter doing?" "How are you coping with this?" What kind of support do you have?"
Clients bring to your office more than just legal problems — they bring feelings about those legal matters and a host of emotional and psychological issues that may impact how they think and feel about the legal issue at hand. Not responding to these feelings can have a significant impact on how effective your lawyering is. For example, when a client is upset, there is a much greater likelihood that he will leave your office having heard something completely different than what you said. In this article, let's take a look at the role a client's emotions have in the attorney-client relationship and how you can use them to help your work go forward in healthy way.
The Psychology of Suing
Suing is an emotional decision. People don't sue because something illegal has been done to them; people do illegal things to each other daily without resulting lawsuits. Something illegal being done is HOW the person can sue, not why. Why a person wants to sue has much more to do with being surprised and feeling angry and/or hurt. If a person believes s/he has been treated reasonably and fairly, he or she will not want to sue.
Our clients are upset because they can't differentiate between legal, financial or emotional issues. For some clients, the issues are all meshed together. First we should acknowledge the frustration, and then help the client sort out the issues into these categories. And then let the client know that you care.
For example, a lawyer told me recently that a woman had called her about a broken relationship. The couple had lived together for seven years and she'd always thought they would get married. Now, the man had left her for another woman and she wanted legal recourse. The lawyer told her, correctly, that she did not live in a common law marriage state and that her expectation of marriage was not actionable. The woman hung up on the lawyer, then called back to say that she didn't appreciate his "uncaring" attitude. This scenario might have gone differently if the lawyer had said; "This must be terrible for you, to live with someone for so long, expecting to get married, counting on a future together, only to have it end abruptly. I wish I could help. It may not be fair and you may be justifiably upset but the law doesn't provide any remedy for this sort of situation."
First, Do No Harm
If the lawyer is unable to determine the client's emotional state, that's problematic for the client, who doesn't feel seen and understood. It's also a dilemma for the lawyer, who can't give the client what he or she needs, and may have trouble keeping the client focused on the legal goals.
Unfortunately, lawyers - concerned though they are - can respond to clients' emotions in ways that make the matter worse. On the one hand, it's easy to try to get the client to "get over" their feelings so they can get down to the business at hand; after all, we reason, we're attorneys, not shrinks. Perhaps we point out that the situation is not so bad and tell stories of clients who are in much worse shape. We change the subject or try to use humor.
The effect is like throwing gasoline on a fire. As any parent knows firsthand, the more you tell a child who just fell down that s/he doesn't hurt, the louder and more insistently they cry. Anything you say that does not address the emotions will leave the client feeling ignored, minimized or wrong. The result of that can be not only a damaged relationship, but also a less than desirable legal outcome because the client's emotional state impedes successful settlement talks or negotiations.
Of course, the other extreme can be even more damaging. Emotions are useful signals but poor decision makers. Conventional wisdom tells attorneys to be tough and protect our client's interest. This can too easily translate into unwittingly feeding our client's emotional fires. However, strong feelings do not necessarily translate into a strong case. So, faced with a would-be plaintiff, an attorney must separate the hurt and anger from fact, and make an objective determination of whether the case can be won. From a defense perspective, it is important to avoid letting the definition be driven by the client's anger about being sued. Of course, it is not always possible to move past anger at the outset of litigation, but beginning the discussion early, in a way that validates the client's frustration and also identifies the objective aspects of the definition of success, should help over time in squeezing anger out of the client's thinking, and hence out of the definition.
Defining Emotional Success
"Is that all they're willing to offer, after all I've been through?"
" Why should we give that *%$* a penny?"
This is the question that attorneys know will arise sooner or later, and that they had better be prepared to answer with conviction. Otherwise, cases that should settle won't, and the attorney is stuck with a continuing lawsuit and a client or boss with serious doubts about the attorney's effectiveness.
Most attorneys are familiar with the economic model of the settlement process; a defendant will be willing to settle for an amount equal to the cost of an adverse trial judgment multiplied by the percentage chance of losing the case, plus trial costs, minus out-of-court settlement costs and a plaintiff will be willing to accept a settlement offer in the amount of a favorable judgment multiplied by the likelihood of a favorable judgment, minus trial costs, plus out-of-court settlement costs. A good theory but, as many attorneys have discovered after being ambushed by a dissatisfied client, not always the best predictor of a successful outcome.
This is because success is as much an emotional as an economic calculation. A plaintiff who sees her role as the protector of future employees from a sexual harasser may feel jaded if a large settlement is accompanied by a slap on the wrist for the offending executive. On the other hand, she may be satisfied with less money if the company agrees to provide company-wide harassment prevention training. A favorable court decision in a race discrimination case, following lengthy discovery, including disruptive co-worker depositions, may not be the primary goal of a human resources manager who wants an early win/win closure with minimal organizational stress.
To make sure these are in alignment, an attorney must work to align litigation goals and outcomes with the needs and interests of the client. As clients become more legally savvy, it's these interpersonal skills that are increasingly likely to separate the attorneys who thrive from those who continually pound the pavement:
Listening skills:
- The first rule of listening is to pay attention.
The average person spends 55 percent of his or her day listening so you'd think we'd be pretty good at it. However, there are some cognitive reasons why most of us aren't; while we speak at a rate of 125 words a minute, we listen and process words at 375 to 500 words a minute. We have to learn to fill the gap so our minds don't wander - by minimizing activities that will distract us, by actively listening for the major points, and by listening to how our clients are sharing information.
- Know yourself.
Each of us has our own preconceived notions and judgments. In fact, the more experienced we are, the more likely it is that five minutes into a client interview we begin to have thoughts like, "This is just another case of . . ." The more we take responsibility to become aware of our own filters, the better able we are to put these filters aside and truly listen to our clients.
- Listen to how your client communicates.
What are the emotions behind your client's words? Hurt? Anger? Outrage? What details are they leaving out? Is the client embarrassed to tell part of the story? What is the commitment behind the story? Has some standard been violated? The emotions and values behind our client's story are often the most important issues.
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- Show that you are listening.
You may truly be able to read notes, fidget and listen to every word your client says. However, odds are your client can't and won't believe you can, either. Fidgeting, fiddling, and wandering eyes communicate an attitude of disrespect to your client - and suggest that you're dreaming about a vacation in Hawaii on his or her dime.
Speaking skills:
- Ask the right questions.
Include questions like such as 'What is the most important part of this for you?' or 'What do you want to have happen?' in your preliminary fact gathering interview and really probe for an unvarnished response
- Acknowledge the content of what you have heard.
Psychologists often use active listening to both confirm that they understand what a client has said and to give the client a second chance to ponder the accuracy of what they're saying. In active listening, you paraphrase what the client has said before proceeding to the next point, i.e., "Let me make sure I fully understand. What I'm hearing is that it is really important that nobody else at company X have to go through what you've been through." As you repeat it back, the client knows you have heard the communication and is empowered to move on to the next concept.
- Acknowledge the emotions behind what you have heard.
Reflecting back the emotion you hear has multiple purposes. First: it helps to clarify, for the attorney as well as the client, what emotions are attached to the client's story. Second, knowing the emotions are there can help identify what the client really wants in crafting a solution. Third, because the client is acknowledged, she/he is better able to feel compassion from the attorney, for him/her self and anyone else involved in the dispute.
- Acknowledge the unfulfilled expectations you have heard.
Behind every complaint is an unfulfilled expectation. Often, the complaint is a result of an expectation that has been violated, unfulfilled or not lived up to. Discerning what the unfulfilled expectation is can help the client better see what is possible or not possible in crafting any solution to a dispute.
The Bottom Line
There can be no knowledge without emotion. We may be aware of a truth, yet until we have felt its force, it is not ours. Arnold Bennet.
Managing a client's emotions starts with listening for what is said, how it is said, what is not said and checking to see if we've got it right. It includes knowing our own biases and preconceived notions and watching to make sure they aren't creeping into the decision-making process. And, it involves validating our client's feelings without letting them unduly influence the litigation process. Master these tools and you've mastered more than the attorney-client relationship. You've mastered all your relationships.
Copyright 2005 Joni L. Johnston.
