What if I told you that there was a simple way to improve mental health in the legal profession? If there was something small you could do, even for the opposing counsel you dislike, you’d do it, right? Maybe you’d grumble about how opposing counsel would never do something so selfless. But in the end, you’d try because you are a good person.
So what is this simple thing: stop shaming and blaming your opposing counsel. (Note: whenever a meditation teacher tells you something is “simple” they pick that word to distinguish it from “easy.”)
If you are anything like me, I bet you didn’t like reading that line at all. I’m the kind of person who doesn’t suffer fools kindly. I’m the kind of person who calls a spade a spade. When someone is wrong, in particular about the law or in a way that could hurt my client, I say it loud and clear.
At least, that’s how I used to think about it. But then I paid a little more attention to my emotions. I got some training in things like mindfulness and compassion. And I realized how devastating, terrible, and powerful the emotion shame can be.
Shame is something that kept me in a box and afraid to be myself for years. Shame is one of the things that keeps lawyers from getting help to address our mental health. Shame is the thing that keeps lots of us humans from connecting to each other even though that’s what we want more than anything in the world.
Now, I have only rarely experienced yelling or truly calculated shaming from other lawyers in my fifteen years of practice. On this account, I have seen the profession become kinder and gentler over the years. But the thoughtless, everyday shaming? That doesn’t seem to be going anywhere.
Despite this, I don’t believe that most lawyers are bad people intent on harming each other. In fact, most of my experiences with other lawyers strongly suggest the opposite. However, we are a profession trained extensively in the art of stating positions, assigning blame, and making judgments.
If we don’t take care, that’s a combination that can lead to some pretty hurtful statements. As a lawyer who cares deeply about my work, I have to watch that my legal position does not become a moral crusade against my opponent. It’s also easy to let my judgments about a case morph into judgments about the character of my opposing counsel. Finally, litigation lends itself so well to pointing out the party at fault that the next logical step is to hurl blame at opposing counsel.
Here’s the problem, though, this feels terrible and it makes life miserable. For lawyers who spend huge amounts of our lives at work, using this kind of language sets us all up for a profession steeped in hostility and negativity. With so much negativity and other challenges in life, do we really need this at work too? No we don’t.
So, how can we start to watch out for shame and blame in our communications without sacrificing their impact? Here are a few tips that have helped me.
1. Focus on the issues.
The first thing you can do to avoid shaming and blaming opposing counsel is to get clear about the purpose of your communication. What is your client’s interest? What is your goal for the meeting or call or hearing? If you get clear about this, it will help you keep you focused on what matters in the case and avoid getting distracted by emotions that can arise like frustration or fear. So, before you take a position, get clear on what it is and how it serves your client.
2. Note the emotional tone in your communications.
This is a simple one, but it is often overlooked. When you are communicating, especially to someone who is difficult for you, pay attention to how you feel. If you are upset, the odds are that the tone is going to come through in your message. Take a moment to calm down. Notice how the other person looks and adjust.
If you are writing an email, stop and take a pause before you hit “send.” Get away from your keyboard if you are really upset. When you are calm, read back through the email and imagine someone else reading it. Revise as if you care about how that person feels.
I know that it can feel great to tell opposing counsel exactly how you feel about them. Remember that this feeling doesn’t last long nearly as long as the consequences of your words. Paying attention to the emotion that comes through with your language is not taking it easy on the other side, so much as it is about maintaining your power to live your values.
3. Avoid character judgments.
Sometimes character is in issue for lawyers, but only in very rare situations. Even when it is relevant to a case, the character of the opposing party may not be relevant to most of your discussions. Look out for judgments leaching out that may come in phrases like “should”, “ought” or adjectives about a person’s character.
Not only can you sometimes be wrong about people, but also the judgments almost always put people on the defensive and lead to fights. Whether you respect someone’s opinion or not, a harsh judgment never feels good and makes even the best of us feel like we have to defend our own honor.
So, as tempting at it may be, avoid scolding an attorney for not counseling their clients properly or telling them that they don’t understand the “kind of person” their client is. Even if it is true, it’s not helpful and is unlikely to lead to anything good for you or your client.
4. Don’t engage in emotional warfare.
It still boggles my mind, but I still encounter lawyers who think they can scare other lawyers into submission. My dear esteemed colleagues, this doesn’t work. Yelling doesn’t make you sound tough; it makes you sound out of control. Making comments that you have “never agreed” to certain contract language isn’t legal analysis. Instead, it’s a manipulative tactic meant to make to shame the other side to coerce them into accepting your language.
I know this is a hard lesson to learn but lawyers can’t control opposing counsel with force of will alone. State your position. Provide good reasons for it, be clear about your best alternative option, and many times you will get good results. If you try to use your emotions to push the other side around, though, you will wear yourself out, waste precious resources, and create hostile relationships with opposing counsel.
5. Avoid tit for tat.
The last rule is the most annoying but probably the most essential. If other lawyers break all the rules stated above, it doesn’t mean you should. By this, I don’t suggest that you should always ignore the behavior without reproach. Instead, I think it is within your rights to tell opposing counsel if their comments are irrelevant, unproductive, or even harmful. You can and should set boundaries and, in more extreme cases, enforce them with judicial intervention.
But you can do those things by refocusing on the relevant issues, noting and respecting the emotions involved, and avoiding the character attacks and judgments that lead to more fights. On the times when I have been ablet to do this, I have always felt empowered that I could stick to my values instead of letting my actions be dictated by someone else. Avoiding shame or blame as retaliation isn’t merely ignoring bad behavior, but is instead a conscious choice to use ethical and effective communication.
Like I said, these steps are simple but not easy. They are small adjustments you can make to your communications to do less harm. While I hope all lawyers consider the impact that their words may have on opposing counsel’s mental health, my experience has been that the less I blame and shame others the better I feel.
Just in case you don’t believe that I know how hard it can be to stay calm in response to opposing counsel’s nasty communications, I made a meditation just for the occasion. Check out this Guided Meditation to help you deal with a Nasty Email here or on Insight Timer:
Want to learn more about mindfulness and compassion? Check out my new book, How to Be a Badass Lawyer, for a simple guide to creating a meditation practice of your own in 30 days. And to share mindfulness with your little one, check out my new children’s book, Mommy Needs a Minute.
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