By: Dr. Ken Broda Bahm – 
On some days, just watching the news can stop us cold. Those who work in law should be proud to be part of a system that, however imperfectly, resolves disputes with appeals to reason and judgment rather than force. But the opposite end of the spectrum was seen in last week’s devastating shooting in Tucson that left six dead and fourteen injured. While the motives of the shooter remain hazy at the time of writing, one element seems clear: for whatever twisted reason, the individual saw Congresswoman Gabrielle Giffords as an adversary. Inevitably, that act has raised questions about the state of our national dialogue, and the civility, or lack thereof, of our current politics. Whether the Tucson shooter is ever tied to the radical right, the radical left, or — as seems more likely given the history of past assassins — he is simply an attention-seeking loner who clothes his psychopathy in the guise of politics, the question of how we relate to a perceived adversary and address our differences in viewpoint remains a critical one.
In the world of litigation, the relationship between attorneys and their opposing counsel and parties most often ranges from distantly polite to cordial, to even a level of friendliness that can be a little jarring for our own clients to witness. But there still can be the occasion where the case or the style of an opposing party or lawyer is able to evoke from us a level of hostility and even hate that can take us by surprise. Giving in to that attitude, based on both some new research and some old philosophies of communication, weakens us as advocates. To honor Martin Luther King Jr. Day, it is worth remembering the long battles of advocates like him, who had many reasons to hate, but responded instead with compassionate reason.
The question of how we characterize our adversaries isn’t just an ethical question, but a question of persuasive effectiveness as well. Strong negative attributions that we make toward an adversary can exert a subtle influence on how we argue. Recent psychological studies have shown, for example, that strong emotions such as disgust can short-circuit moral reasoning (Horberg et al., 2009). We ‘turn up our nose’ at an adversary’s case at our own peril, because the emotional reaction means that we are likely to judge that case in harsh and potentially inaccurate terms. The practice of building your case consists of finding an advantage, leveraging the superiority of one’s position. But in that act of case-building, there is a corresponding tendency to downplay the advantages of the other side. That is, we are used to thinking that our own case is better, and it often is. But that perceived advantage shouldn’t blind us to the merits of the other side. Another recent study (Lammers, 2010), found that when you perceive yourself to be at an advantage in a negotiation setting, that causes you to think of an opponent in less personalized, and less human, terms. When we advocate, we exaggerate our strengths and we minimize our opponents — to our detriment. In the medical field, researchers (Blatt et al., 2010) have shown that the ability to take the perspective of the other in an interaction leads to more satisfactory outcomes, and there is no reason to think it would be any different in legal interactions. In fact, those who study legal dispute resolution tend to note that the most important predictor of effectiveness isn’t the ability to leverage the advantages of one’s own position, but the ability to empathize with an adversary (Reilly, 2010).
So there is some research on the side of the Golden Rule. It isn’t just ethically fair to consider the other, it is also argumentatively effective as well. What does that mean for the litigator preparing a case for trial? Well, on its face, the advice to choose empathy over disparagement and hate might sound a little Pollyannish. You might think, “yeah, we considered the other side — that is what mediation was for, but that failed — and now there is nothing left to do but crush those numb-skulls in trial.” And certainly, there is nothing wrong with a focus on winning — that is what we’re paid to do. But if our focus on winning causes a blind spot — a tendency to downplay an opponent’s case and disparage their ability to make that case — then you are reducing your chances of winning.
About three decades ago, the rhetorical scholar Wayne Brockreide (1972) coined the expression of “arguers as lovers.” Now, take that too literally with opposing counsel and you have a conflict of interest on your hands. But the core of Brockreide’s argument is that effective advocacy proceeds from a fundamental respect and appreciation for the other side — their claims, their characters, their capacity for judgment and reason, and their motives. Practically, how do you do that? Let me suggest three starting points.
1.) The trappings of civility matter. The judge is right — decorum is important. When you are in front the jury, and even when you aren’t, don’t insult or sneer at an opposing party. Ultimately, it is more likely that the jury will be motivated to vote for the credibility of your position than it will be to vote against the credibility of your adversary’s.
2.) Grant the benefit of the doubt. In every party’s case, there is likely to be some aspect of truth. Accounting for that aspect of truth in an opponent’s position will strengthen rather than weaken your argument.
3.) Walk a mile in their shoes. Practically, there is no better way to appreciate the strengths and weaknesses of the other party than to role-play that party, for example in a mock trial presentation. That is often one of the main benefits of holding a mock trial. It is hard to believe that your opponent’s position has utterly no merit if you have to advocate that position yourself.
Even at its worst, civility in the practice of law tends to be pretty good — miles above the level of discourse on the news-talk shows, for example, and not in the same neighborhood as whatever internal discourse it was that motivated an act of insane disregard in Tucson. But it helps to recognize the top of the slope if you hope to avoid heading down. And the slope starts with disrespect: an inability, or unwillingness, to understand and appreciate the other side in an argument. That is a phenomena that isn’t unknown in litigation. Disagreement is fine, and refutation is even better. But if we allow our clients, our witnesses, and ourselves to actually hate the other side’s arguments, style, or presumed motives then we are giving away some of our own effectiveness.
To mark the day, Martin Luther King Jr. said:
Like an unchecked cancer, hate corrodes the personality and eats away its vital unity. Hate destroys a man’s sense of values and his objectivity. It causes him to describe the beautiful as ugly and the ugly as beautiful, and to confuse the true with the false and the false with the true.
Blatt B, LeLacheur SF, Galinsky AD, Simmens SJ, & Greenberg L (2010). Does perspective-taking increase patient satisfaction in medical encounters? Academic medicine : journal of the Association of American Medical Colleges, 85(9), 1445-52 PMID: 20736672
Brockriede, Wayne (1972). Arguers as Lovers Philosophy and Rhetoric, 1-11
Horberg, E., Oveis, C., Keltner, D., & Cohen, A. (2009). Disgust and the moralization of purity. Journal of Personality and Social Psychology, 97(6), 963-976 DOI: 10.1037/a0017423
Lammers, Joris and Diederik A. Stapel (2010). Power increases dehumanization Group Processes and Intergroup Relations
Reilly, Peter (2010). SYMPOSIUM: MINDFULNESS, EMOTIONS, AND ETHICS IN LAW AND DISPUTE RESOLUTION: Mindfulness, Emotions, and Mental Models: Theory That Leads to More Effective Dispute Resolution Nevada Law Journal, 433
Li, Haiquin and Samir Chatterjee (2010). Designing Effective Persuasive Systems Utilizing the Power of Entanglement: Communication Channel, Strategy and Affect Lecture Notes in Computer Science, 6137DOI: 10.1007/978-3-642-13226-1_27
Photo Credit: Luis Fernando / Sonia Maria, Flickr Creative Commons