Though most of the attorneys I have litigated cases against are wonderful people who only want to represent their clients well, I’d be lying if I didn’t admit that some just like to play games. They don’t want to turn over documents that are clearly relevant. They don’t want to think practically when evaluating a case for settlement. And they want to object all the time just to be difficult. Sometimes this happens because people lose their patience, get too emotionally invested in a case, or have other pressures that affect their decisions. Since I am an imperfect human and litigation is stressful, I can forgive a lot.
The kind of game that is the hardest to forgive, however, is when lawyers attempt to play games with other lawyer’s minds. Perhaps the most vile instance of this is the intentional shame trigger. This happens when one attorney tries to control another without legitimate power or authority with comments intended only to make the other attorney feel bad. By now, most attorneys know that they can dance like nobody is watching, but must email like it may one day be read in court. Thus, I usually don’t see attorneys flat out calling names or spewing hate explicitly. Instead, most shame trigger attempts I’ve encountered have been embedded in a discussion of legal or factual issues. This can make them even more insidious, however, because it means that an opposing attorney without good intentions might be able to worm their way into your head without you realizing it.
What is to be done about this situation? I’ve found that several tools from my mindfulness training have helped me avoid becoming distracted when opposing counsel throws out shame triggers. Here are my tips.
The first step for dealing with a shame trigger is to see when it is happening. Clearly, mind games in litigation can come in all sorts of forms, so there isn’t necessarily a single definition that can apply to all situations. Even so, I find that shame triggers tend to occur when one party wants something from the other, but they don’t have legitimate means of obtaining it. I’ve commonly seen this arise in settlement negotiations when opposing counsel wants me to increase my offer but doesn’t have a good basis for explaining why the risk necessitates an increase. I’ve also seen it occur when parties are discussing things like deposition scheduling or discovery and there is a lack of guidance from the court or civil rules about how something must be done. When the respective parties’ interests and preferences clash, shame triggers might be thrown out to intimidate or manipulate opposing counsel into doing what they want.
Now, of course, it is our job as attorneys to sometimes point it out when things about the other side’s actions or case are wrong. For instance, it’s not inappropriate to tell another attorney that their client’s discovery responses are overdue or that their legal theory has flaws. Shame triggers, though, aren’t pointing out a lack in the other party’s case or a failure to undertake an essential procedural step. Rather, they are intended to point to a lack in an attorney’s worth as a person or professional. The calling card of the shame trigger, therefore, is that they usually involve passing judgment on an attorney and are unnecessary to making a legitimate request or explaining a position in a case. If you notice this happening, slow yourself down if possible and acknowledge what’s going on before you do anything else.
The thing about shame is that it really hurts. Humans have an innate need for the approval and support from our communities. We go out of our way to avoid feelings of shame and judgment from others, including strangers and people we don’t approve of ourselves. This is exactly why lawyers sometimes stoop to the level of tossing out shame triggers to try to get their way: they sometimes work. Thus, once you are aware that another attorney is trying to shame trigger you, the next step is to draw on equanimity.
If you can give yourself a few minutes to take a break from the situation, that might be enough to calm you down. Unfortunately, though, we don’t always have that option. In times when opposing counsel is playing mind games, I remember my objective for my client and my values. I also recognize that the point of nasty, shaming comments is to elicit an emotional reaction from me and to distract me from my purpose in representing my client. I remind myself that the true test of my worth as a lawyer isn’t what another lawyer might say about me in the heat of a dispute, but only my own actions. This helps me find steadiness and stability as I venture on to respond in a way that serves my client best.
3. Choose Your Response.
Because lawyers use shame triggers to try to exert control when real control is lacking, the best way to undermine them is to choose your own response. As a child who grew up in the 1980’s and 90’s, the image that comes to mind with this is in the final scene of Labyrinth when Sarah (Jennifer Connelly) proclaims “You have no power over me!” to Jareth (David Bowie), thereby dispelling the illusion that his emotional manipulation could dictate her actions. Just like Jareth, lawyers who use shame triggers can present as powerful with their bluster and arrogance but those behaviors often mask a position of relative weakness.
Does this mean you have to call out the other attorney as a shame-triggering hooligan who “has no power” over you? Not necessarily, though an explicit but skillful calling out when discussions get overly personal or aggressive may be necessary in some cases. In general, though, I prefer to just let my actions do the talking. After determining what aspect of the commentary from opposing counsel requires a response, I show my strength with my next move. This may be a motion or settlement offer based on my evaluation of risk or no move at all as I call the bluff of the other attorney threatening a motion of their own. In other words, I redirect my energy away from their emotion and judgment back to the legal and factual issues in the case where it belongs. Wherever possible, I try to project calm and confidence as I do. In doing this, I avoid wasting time arguing with other lawyers about the propriety of their conduct and I neuter any power the shame trigger might have had because I stay focused on the work for my client.
4. Care for Your Feelings.
Now, this is not to say that emotions can simply be ignored when dealing with nastiness and shame triggers from opposing counsel. As I’ve written before, emotions need to be felt and it’s usually a waste of time to pretend they aren’t there. Though I try to avoid making decisions about legal strategy based on my emotions, it is necessary to deal with them later on in an appropriate and healthy way. In the moment, this may include simply sitting with the feelings of frustration, anger, hurt, or even fear that may arise when opposing counsel uses shame as a weapon. Coupling this with some breathing to calm your body and self-compassion may be enough to steady you so that you can respond and address the situation.
When you have more time, I have usually found it necessary to release the emotions further. Physical exercise has helped me let go of frustrations and the stress of dealing with difficult opposing counsel. Self-forgiveness and self-kindness are usually essential because, in stressful situations with adversarial people, I rarely handle situations perfectly. More significantly, though, I have usually found it most helpful to share my frustrations without revealing client confidences with a loved one or colleague.
More than anything, getting the perspective of someone else helps me ensure that I was seeing the situation clearly, and to validate my experience. Sharing my feelings doesn’t make the other attorney’s conduct any better but it has always helped me feel less alone in dealing with it. Often in litigation, we are in a situation where we must learn not to act on our emotions, so it is essential at some point to reckon with and honor them as normal and human. You deserve this support because the work of an attorney is hard and important, but offering this ongoing support to yourself will also help you build confidence as you face new challenges.
Unfortunately, bad behavior from opposing counsel is part of litigation. To be sure, firms, courts, and the profession must do its part to police and reduce unnecessary personal attacks that arise in the litigation context. As those actions emerge, however, us litigators have the power to not add to the nastiness, to keep ourselves steady, and to focus on the work of our clients. Shame triggers from opposing counsel are too common in litigation but they don’t have to derail your work as a litigator or haunt you. With mindfulness, intentionality, and proper supports, you can stay steady as you litigate cases even with difficult opposing counsel, get the job done for clients, and build confidence in your own abilities.
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