Why Is She Doing This to Me?

“Why is she doing this to me?” a client recently asked me.

She was referring to a lawsuit brought against her by her sister, a lawsuit undoubtedly she believed was unfounded. I am a lawyer, and the legal response that should have been forming in my head should have sounded something like this: “She was pursuing her rights and claims in the Court of Chancery, in aid of damages she was seeking from you.” But I knew this was not the answer she was looking for. My client wanted to know why. She couldn’t understand why someone she loved would make such hurtful claims against her, in a public setting. Why was she doing this? How could she?

It is not uncommon for clients to seek non-legal advice from lawyers. Sometimes it is easy to respond. If they seek tax advice, we can refer them to a tax professional for guidance and answers. If their questions address what type of insurance coverage they have, and whether the coverage is sufficient, we can and probably should send them back to their insurance broker.

The tougher situation is when their questions delve into the psyche: Why is someone pursuing or defending litigation in a certain way? How do you explain someone’s rationale, or lack thereof? These types of questions come up over and over again, any time emotion seeps into contentious litigation, as it almost always does.

These questions are virtually impo ssible to answer. Try as I might though,

I can’t avoid them. I constantly feel as though I am slipping past the boundaries of the legal profession, and delving into discussions on topics found nowhere in any law book I ever read or pretended to read. Those same law books now proudly displayed on my shelves are useless in those moments.

Managing client emotions didn’t merit a course in law school either. And not much has changed in the two-plus decades since I graduated. Recently

I checked in with my law clerks, and they confirmed — this topic still has not found its way onto the curriculum of my alma mater. I haven’t seen any courses offered at CLEs or professional training programs, either. Which tells me resources are few and far between for attorneys trying to walk the thin line between providing legal advice and therapy.

I now accept that those situations are unavoidable. So how do you talk to clients about the powerful emotions commonly at play in too many lawsuits? How do you help them manage the anger, sadness, and anxiety that stems from the lawsuits against them? How do you address what they insist are the falsehoods listed in the papers the sheriff delivered to them, sometimes unexpectedly.

Sometimes nothing you say can alleviate a client’s concerns. And sometimes they transfer their anger or other strong emotions onto you, as their legal advocate. “Why can’t you make this lawsuit go away?” Those discussions can be repetitive and permeate ongoing discussions. Often, they are distractions. I would prefer to discuss legal options, and the pros and cons of those options. Instead I am hearing — again — a recount of childhood disputes with siblings, stories that I now know by heart. I find it painful and sad that this trauma remains with someone, to the extent that they cannot even focus on legal decisions and the advice provided to them. The discussions can be lengthy and expensive. When I try to cut the client off, I feel rude and unsympathetic. But really, I am just trying to re-focus and be efficient. But there’s always a risk in that approach: the client can take offense, and that can have an adverse effect on the professional relationship.

Emotions are particularly challenging when attempting to settle cases or resolve differences. I’ve had clients who are furious with me after I granted a small extension to an opposing party to answer discovery. And I’ve had clients who have refused to settle “on principle,” even though it was in their best interest. Those are the moments when

I have lear ned invaluable lessons from watching the best mediators or listening to more seasoned attorneys. They listen patiently, and seem to have a deep reservoir of carefully chosen responses. They are able to help a client move past the fight to find a resolution. I am grateful these phrases are not copyrighted. I try to store them away, so I can pull one out when needed.

Offering even basic psychology training to lawyers makes sense to me, though admittedly this needs to be done c arefully. As much as we want to be helpful and responsive to a client, we do not want to become armchair psychologists, just as we don’t want to offer tax advice if we are untrained to do so. However, a course in psychology may help us gain important insight into an individual’s claim — e.g., why is she doing this? And that information could then give attorneys another tool, that may allow the representation of client to move forward in a more efficient and productive manner.

Boyer, Esq. on Sunday, May 7, 2023

Cocktails at 5:00 P.M.

Dinner at 6:00 P.M.

Location

The Wilmington Country Club

4825 Kennett Pike

Wilmington, Delaware

Guest Speakers – Chief Justice Collins J. Seitz, Jr. and Fr. Richard J. Jasper

Please E-mail wlarson@mgmlaw.com for registration information and sponsorship opportunities