4 Steps to Help Lawyers Handle Shame Triggers from Opposing Counsel

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.

1. Recognize.

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.

2. Equanimity.

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.

Want to learn more about mindfulness and compassion? Check out my new book, How to Be a Badass Lawyer, which is available on Amazon.

Stop The Shame Loop and Let the Process of Habit Change Unfold

I’ve never considered myself a very disciplined person. Let’s just say I’ve never met a french fry I didn’t eat, I hit the snooze button easily, and I’m always the one around the office you can count on to say yes to the impromptu lunch (abandoning the lunch I packed). 

Even with an established meditation practice, as a busy mom and lawyer, I often find myself stumbling through each day just trying to keep all the balls in the air and ending each day in bed cycling through the long list of things I didn’t get done or should have done: I should have exercised today. Why didn’t I meditate? I didn’t get through all my emails. Do my kids have clean underwear for tomorrow? I need to clean the bathroom (why is the bathroom always so dirty?)? Did I eat a vegetable today? Did my kids eat a vegetable this week? When was last time anyone in my family ate a vegetable? And on and on and on.

For so long I was stuck in a loop: try to cultivate a habit or make a change, feel like I was failing, feel ashamed and beat myself up, give up. Telling myself the story that I’m just not a disciplined person.

Then I found the work of Leo Babauta and his blog Zen Habits. Babauta’s work focuses on productivity using a Zen based minimalist philosophy. As women we are conditioned that success means we do it all and we do it perfectly. Babauta’s work helped me start to deconstruct that. He introduced me to the idea of starting small and just doing less.     

The focus on productivity helped, but I was still stuck in the habit change loop (start, stop, feel ashamed…). That’s when I found  Kelly McGonigal’s work and the 10% Happier Habit Change Course.  McGonigal is a behavioral psychologist at Stanford that studies habit formation and teaches using mindfulness practices.   

The first time I took the 10% Happier Habit Change Course, I learned the basics of habit change and how to create routines to support habit changes. The basic steps of habit formation are to choose a trigger, associate it with a behavior, and reward yourself for doing the behavior. McGonigal teaches that in order to build lasting habit changes we must connect them to our higher goals of the kind of person we want to be and the life we want to lead.

Establishing a regular exercise is a big habit for me. I have herniated discs and when I’m running and stretching regularly my back hurts less. The first time I took the Habits Course I took McGonigal’s advice. I’m also 44 years old with young kids. I want to be able to run around with my kids (and grandkids some day!). Yes, my increasing amounts of cellulite and my pants fitting too tight are part of the motivation to exercise, but once I connected exercise to my higher goals (feeling good and being active with my kids) it got a little easier.

I learned to incorporate visual reminders of these higher goals into my routine. I cut a picture out of a magazine of a mother and daughter smiling and running on a beach together and hung it up by my bed. This picture is a visible reminder to me when I don’t feel like exercising that the reason I want to put on those running shoes is so that I can be active with my kids and be pain free.

Practical tips and understanding the psychology behind habit change helped, but I was still stuck in the shame loop so I took the 10% Happier Habit Change Course again. This time I heard McGonigal’s words about cultivating self-compassion. I learned that the habit I really need to change is the mental habit of shame when I don’t do what I think I should be doing.

McGonigal says acknowledging that you even want to change something is the “bravest version of yourself” and that self-compassion means being gentle with yourself and acknowledge that you’re doing the best you can. She says “life is unfolding process” and that self-compassion is the bedrock of opening up to that process. I can feel myself opening up to the idea that habit change is a lifelong process up and for the first time I’m starting to interrupt the shame loop.

I will never be the most disciplined person, but maybe, just maybe, I can be someone who does her best and doesn’t beat herself up every time she doesn’t do exactly what she should be doing. Maybe I can finally embrace the concept of the lifelong process. Maybe some day I’ll be the person who exercises somewhat regularly, maybe eats a vegetable once in a while, and meditates regularly. Maybe I’ll be the kind of woman that lays in bed and thinks: I did my best today, isn’t that great? Good job, me.

So if there’s a new habit you’re trying to cultivate or a not-so-great habit you’re trying to break – whatever you do go easy on yourself.

Loren VanDyke Wolff is an attorney, mom, community leader, and long-time meditator who lives and practices law in Covington, Kentucky. She has contributed several pieces to the blog and has a passion for improving the legal profession. You can connect with her on LinkedIn.

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What Dry January Taught Me about Alcohol, Mindfulness, and Shame

I successfully did Dry January this year but it taught me a surprising lesson about shame. No, I have not been living under a rock. I know about Brene Brown. I watched the Netflix special. Yes, it was amazing. I’ve read many of her books. I know that the research says that shame can steal our power and keep us in a box. But it’s one thing to read or hear about a concept and another to live it, feel it, and understand it as you do.

I had experienced shame before this year, so it was not necessarily a new thing for me. But in general, the feeling was so intense and unmistakable that I could not ignore it. The shame I learned about after doing Dry January, however, was different. It was subtle. It was like a ghost in a haunted house that left signs of its presence but would disappear into the ether when you looked for it. It was not a big, bold feeling for me, but instead the faintest of senses that told me that I shouldn’t think too deeply (or even at all) about my drinking. It is for this reason that I had to try Dry January before I could properly diagnose my own condition: I had been ashamed that my use of alcohol had become so habitual.

For months before January, 2021 rolled around, I had been bored with alcohol. Literally bored. Still, I kept finding myself going to the fridge to grab a beer at the end of the day as if by compulsion. Like most people, I had come to associate alcohol with fun and relaxation. Those things being in short supply during the pandemic, my consumption of alcohol increased to fill this gap. Since I hardly ever needed to drive, there were usually very few reasons to say no either. So my habit became regular and stayed regular even after I started to be concerned about it.

But to be “concerned” about one’s own consumption of alcohol raises all kinds of issues, doesn’t it? If one is “concerned” about one’s use of alcohol, then it raises the question about whether one needs to stop. And we know that if one needs to stop, then they have a ”problem” with alcohol and they must stop totally and forever, full stop. Right? Furthermore, if I—a meditation teacher who espouses the values of mindfulness at every turn—could not control my own use of alcohol, what kind of teacher would I be? And don’t even get me started about what kind of lawyer I might be if I can’t even control myself.

As it turns out, I am just the human kind. Despite eight years of meditation, I’m not enlightened yet and I have cravings just like everyone else. My meditation practice certainly helped me maintain stability during the pandemic but I don’t think anything could make living through a pandemic easy for any of us. Ultimately, though, it was my meditation practice that helped me get out of this mess.

Though shame and anxiety about alcohol kept making my mind force concerns about it to the side, basic awareness helped me wake up. I love beer, but I started to notice that it didn’t seem to taste as good. That helped me to see that I wasn’t really getting the enjoyment I was seeking when I went to grab one from the fridge. I also noticed that many days I would make a secret goal not to get a beer, but find myself walking to the fridge anyway. This helped me see that I was not a terrible out of control mess, but rather just someone who developed less than ideal habits while stuck at home social distancing.

When I started to examine my beer drinking nonjudgmentally as a habit, rather than an inherent character flaw, it made me curious. Rather than worry about having to quit for all time and what that might imply about me, I instead started to wonder whether I could just change what I was doing. I had never tried Dry January before, but found myself in a Dry January Facebook group in December. Reading the posts and stories of other members helped normalize what I had experienced and it actually made me excited to try. As it happened, I had already signed up for a virtual meditation retreat for the weekend of New Years Eve. Having done this retreat before, I knew that I would refrain from drinking during the retreat. That was an ideal time to start, since the first few days of any new habit program are always the hardest.

To my surprise, when I returned from the retreat, it was easier than I had expected to just not drink. I had helped myself out on this by removing all the beer from the fridge because I knew I would be very unlikely to be so desperate that I drank a warm beer. Even so, I only occasionally had thoughts about drinking and I was able to avoid it by just doing something else, like playing with my kids, meditating, or working out. I also found other tasty things to drink, like hot tea with honey or seltzer water to satiate my hankering for bubbles. In other words, I learned that I wasn’t totally out of control when it came to alcohol. Rather, I had just needed to disrupt my habit of not exerting any control when it came to alcohol. Dry January gave me the chance to experiment with that and see what happened when I just gave myself a reason to say “no” for a while.

Did this experience drastically change my life? Not really, but it improved it. The most significant change was that I slept better. Sleeping better, in turn, helped me get up earlier, focus better, have more energy, and get more done. I liked that so much that, before the end of January, I committed to 300/65 – which means that I would only consume alcohol on 65 days for the rest of the year. In short, while I had been previously afraid to put restrictions on my use of alcohol before, because I didn’t want to think about that might mean, the reality was that the restrictions supported me and improved my life.

I was so surprised by this that I found myself doing something else entirely surprising: I wrote about my experience with Dry January on social media. Not only were people not judgmental; they were supportive and curious. In response to this, one contact reached out and told me to read Quit Like a Woman. I started it soon after and it helped me better understand my own experience. In the book, the author traced her own struggles with drugs, alcohol, depression, anxiety, and eating disorders and how she used a gradual approach coupled with self-care practices, including yoga, meditation, and therapy to eventually lead a sober life.

I was not surprised in the least that meditation was among the author’s toolkit, but I had never heard anyone before suggest that one could adopt a reducetarian approach to alcohol. Everything I had ever heard about sobriety before was that you either were or you weren’t and there was no in between. In the same way, I had never consciously considered the possibility that a life without (or with less) alcohol might be better. As the author argued, I saw that I perhaps had been unwittingly affected by the negative and one-sided portrayals of recovery in TV and movies and the marketing efforts of the alcohol industry.

I did not think the book was perfect. I disagreed with the author often but it shared something about alcohol that I was finally ready to hear: a new way of thinking about it. Rather than considering whether alcohol and I just don’t mix, I learned that the better question was whether I was living my life the way I really wanted to live it? As it turns out, I already had everything I needed to make a change. Just like QLAW recommends, I got curious and let myself experiment and observe how alcohol affected me, I was open to a gradual approach, and I had already established a toolkit of self-care practices, including meditation, to help me deal with stress or cravings or bouts of self-doubt. In short, neither Dry January nor QLAW convinced me that I needed to entirely quit alcohol but they both made it clear that if I was going to examine my habits and build a better life I first had to quit shame.

To learn more about this subject, check out the IG Live I did with contributing author Loren VanDyke Wolff on the subject of alcohol, habits, mindfulness, and shame.

Want to learn more about mindfulness and compassion? Check out my new book, How to Be a Badass Lawyer, which is available on Amazon.

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