Gerry Spence talking about Ken Turek

"Ken Turek is one of my favorite lawyers--his intelligence, humor and realness make him stand out as one of a kind, a person who has many gifts to offer as both a trial lawyer and counselor."

Gerry SpenceLegendary American trial lawyer and bestselling author of How To Argue And Win Every Time.

Saul_GoodmanThere is an opposing lawyer in one of my cases that wants-wants-wants everything her own way.  She wants me to give in on everything and whines when I don’t. Then I’m unreasonable.  Then I’m unfair.

But ask her for anything and she shuts down like a slamming door, and then attacks me personally.

I’ve tried to be patient.  I’ve tried to be a pro, but the other day I lost it and raised my voice and went at her.  It solved nothing.  It only made me feel like a fool.  Foolish because it was a dumb thing to do and foolish because I had failed to follow my own advice.

SOLVING THE CONFLICT INHERENT IN OUR PROFESSION

I sometimes speak before lawyers groups on dealing with conflict.  It’s all around us in our work, almost every day.  Most lawyers dislike it.  It’s unnatural and it wears on you.

Some lawyers love conflict. They feed on it. I have a theory though that if you feed on conflict it will, sooner or later, feed on you.  In ways you never see coming.  I’ve seen it happen, a lot.

So what to do about the conflict that is so often found in our work?  What do you do about difficult opposing lawyers?  My solution is to work to understand them.  Really understand them.

When I attended Trial Lawyers College I learned a unique and helpful way to cross examine called the “chair back.”  This is a form of psychodramatic technique where you go “behind” what a person is saying to discover the truth of what is really going on but is not being said. In its purest form it uncovers progressive layers of feelings but I use it here more broadly to get to deeper levels of truth as a whole.  (The term “psychodrama” sounds weird but it is, in main part, the re-enactment of events to help understand the true human dynamics involved. While psychodrama is often used to increase personal understanding and growth it can be an invaluable way to truly understand what happened in a case and how best to present it. Gerry Spence describes how he uses it in practice and trial in his outstanding book Win Your Case: How to Present, Persuade, and Prevail–Every Place, Every Time.)

HOW TO DEAL WITH THE DIFFICULT LAWYER

The simplest use of the Chair Back to deal with a difficult lawyer is to actually place chairs (I have typically used three) in a jagged stair step fashion behind the first chair.  Each chair represents a deeper level of truth.    When I speak on this subject I set up three chairs and demonstrate the exercise from the perspective of a senior lawyer who speaks down to a younger opponent:

Senior lawyer speaking from Chair One:

“Oh they’ve brought YOU here to this hearing/meeting/deposition?  Well, maybe when they begin to take this case seriously they’ll send someone in with some experience.  By the way, I want you to know that I have [insert] number of years specializing in this type of case and I have looked at it and frankly you don’t have a chance,  so you might as well start thinking about how you’re going to get out of this case now.  [Burp].”

What is really going on behind this windbag’s Chair One statements?  Let’s move to Chair Two and get a little closer to the truth.

Senior lawyer now speaking more truthful and deeper from Chair Two:

“You don’t know the pressure I’m under. If I could tell you the truth up there in Chair One I would tell you about the billable hours I have to put in and the associates I need to keep busy and the clients that I need to keep happy and the money I need to bring in.  And this track record I keep bragging about also puts pressure on me.  The truth is I know there are good lawyers out there with great skills who can beat me, and that it can happen in any case.  But I can’t tell you that in Chair One.  I have to act tough and hope that I scare you and that you don’t see how scared I am.”

And what is the real truth behind what is being said in Chair Two?  Let’s go a little deeper and move to Chair Three:

“In many ways I’ve never become the person I wanted to become so many years ago. My dedication to my work has led me to divorce/alcohol/loss of love/depression [insert].  I’ve never achieved the dreams I once had but I try not to think about that because it hurts too much.  I look at you and there is a lot about you I admire.  There really is.  You are so young and strong and powerful even though you’re just starting out.  And you are different from me too with your age/sex/race [insert], and in truth I don’t know how to deal with that because I don’t understand you.  Hell I don’t even understand myself.  And you probably do that Twitter stuff and everything else I don’t understand. The truth is you are different than me and you scare me.  That’s the real truth of why I act the arrogant way I do in Chair One.  There is no way on Earth I can let you see this part of me.”

Sure, a lot of this is supposition and “surplus reality” but if you really listen and study a person you get better and better at understanding what’s really going on with someone.

SOLVING CONFLICT COMES FROM UNDERSTANDING OTHERS AND OURSELVES

When you do this exercise your animosity begins to melt away–if you let it–and you can see the “difficult” lawyer for who they really are.  I tried it again recently with the lawyer I mentioned above and her sniping now flows over me like water over a stone.  I understand her from her Chair Three, and because of that she has lost any power to affect me.  I know who she really is and why she acts the way she does and she no longer bothers me.  The bottom line is the Chair Back exercise has made me more effective in the case.

You can use the Chair Back exercise to understand judges, co-workers, clients, loved ones, etc.  Its most profound affect may occur for you when you Chair Back yourself to try to discover your truth, like I did to understand why this other lawyer was bothering me so much.  As always, self discovery makes the discovery of others more available and intuitive.  After a few times doing the Chair Back by actually setting up and speaking from chairs–which you’ll probably want to do behind closed doors so no one thinks you’re crazy–you’ll find it easier to do in your mind, like when driving to a deposition (to better understand a witness) or waiting to speak in court (to better understand a judge).  It’s also a helpful tool when you fall out of alignment and do something stupid like I did when I let my emotions get in the way and I snapped at that other lawyer.  Dumb.

There will be times, of course, when no “exercise” will help you deal with a bullying opponent and you simply have to stand up to him or her.   We just need to follow our instincts in those instances.  The Chair Back, however, gives a lawyer another alternative way to go around someone rather than right at them.  And at least that portion of conflict in our life goes away.

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