The Law and Emotions
A Country Lawyer by Edward Lamson Henry

Within the past six months, a large volume of articles, stories, and conferences have captured my attention. They all have a common theme: the role of emotions in our lives. Most of the material examines the influence of emotions in managing and resolving conflicts. At the recent annual continuing education conference by the State Bar of Texas’ ADR Section (disclaimer: I was the course director) Doug Noll spent a considerable amount of time suggesting—more than suggesting—that conflict resolution professionals need to deal with the emotions of the parties at mediations. Dealing with emotions can help to build trust, de-escalate conflict, restore cognitive functioning, and provide compassion to the parties and their counsel. Doug writes in the course materials that “Missing the moment often is a precursor to impasse.”

Similarly, Randy Kiser, a professional idol of mine and thought leader because of his work in Beyond Right and Wrong and How Leading Lawyers Think (plus he is engaging, funny, and kind), was generous enough to send a copy of his newest work to me titled “The Emotionally Attentive Lawyer: Balancing the Rule of Law with the Realities of Human Behavior,” published in the Nevada Law Journal.

Randy is known for his work quantifying how attorneys think and the outcomes of that thinking. When comparing proposals made to settle a litigated case to the actual award, Randy and his colleagues found that there is a high incidence of decision-making error (interestingly, the rate of error is smaller for those who are trained as mediators).

I was initially surprised to read Randy’s work on “emotionally attentive lawyers” because I’ve always read Randy as being a numbers-type scholar. Data-driven. He continues that in this scholarship. Randy’s data shows that the great lawyers have a high level of emotional intelligence.

Legal training typically divorces the law from the client’s emotions, however. I’ve seen that so many times in client interviews and in mediations. Counsel will often encourage their clients to “just give the facts” and not allow time for venting or other emotional releases. A movement afoot in the mediation world is to do away with the joint session because it can be too emotional, the fear being that the emotions will entrench the parties in their positions instead of leading them to a place of settlement.

In his materials to the State Bar of Texas ADR Course, Doug Noll wrote that we are “98% emotional and 2% rational.” Noll’s numbers may be accurate, or maybe not, but increasingly neuroscience, and frankly, our own experiences, should lead us to know that we are more emotional creatures than we let on.

Emotions play a big part in the disputes I’ve handled. Business partners break up. There’s a lack of trust. An employee is terminated from her job. There’s a lack of security. Students are upset because of a living arrangement. There’s a lack of thoughtfulness. In all of these situations, there is anger, sadness, disappointment, and a host of other emotions involved. How many times has a client said “I want to pursue this because of the principle!” or “I want to send a message!” The principle or the message aren’t legal theories or causes of action. They are emotional ends that the client wants to pursue: fairness, justice, security, trust, revenge, humiliation, control, and you could go on. I’ve seen instances where litigation is pursued and a client is financially upside down. A rational actor would quit. What drives that client? Emotions.

Randy suggests that legal education should learn from innovations in medical school admissions and education. Medical schools are using tools in the admission process to assess emotional intelligence and problem-solving and then teaching their students how to incorporate those concepts into their practice. Health care providers deal as much with persons as the disease. Similarly, attorneys deal with human beings and attorneys need to develop their interpersonal and communication skills to benefit their clients. Even if an attorney doesn’t want to do this for the benefit of the client, Randy cites studies that suggest these aspects of legal counsel help with malpractice claims.

In his conclusion, Randy notes that in the legal profession’s effort to be dispassionate, it has lost an important component that allows our humanity to peek through. We know that despite their best efforts and the rules designed to get to a right outcome, judges, juries, attorneys, and clients are motivated by a myriad of emotions and sometimes get things wrong. The emotions can act as blinders to the actors in the land of the law.

The land of mediation, to borrow a cliché, can be a “safe space” to deal with the emotions that our court system isn’t designed to handle, yet. Randy’s work and thinking on training attorneys to be more emotionally attentive is important and necessary to improving legal services. By being emotionally attentive, there’s a better chance that clients will feel satisfied with the outcome because a significant need that influences them will be met. In the mediation world, we talk about this as the difference between positions (what the client wants) and interests (why the client wants). An emotionally inattentive lawyer does the client, and ultimately, the lawyer, a disservice because the question of “why do you want this” may not be asked. In the end, the result may not meet the client’s true need because the client’s emotional motivations haven’t been met. Randy provides a 1955 quote from Erwin Griswold, the Dean of the Harvard Law School, “Many lawyers never do seem to understand that they are dealing with people and not solely with impersonal law.” I think Randy is right. We need to be more emotionally attentive to better serve our clients and the system.