Lawyers often work with clients in emotional distress.
The Illicit Relationship of Lawyers and Emotion
by Barbara Kate Repa
Lawyers entering the taboo territory of clients’ feelings are teaming up with psychologists.
Lawyers handling cases involving emotions tend to look at them as the Grand Canyon: If they get too close, they’ll fall off and die,” says Frederick Hertz, an Oakland attorney and mediator who concentrates on co-ownership issues.
The tumultuous feelings behind client disputes have long been taboo territory for lawyers, especially in business and property matters. Many attorneys feel they’re hired to fight for their clients, and getting too “touchy-feely” weakens that perception. But others now argue that delving into emotions–and adopting lessons pioneered in divorce law, when clients, attorneys, and therapists work toward solutions outside of court–makes them better, more marketable lawyers.
“You do need someone both sides can put trust in to acknowledge the clients’ emotional investments and sometimes explain the necessity of settling,” says Patrick H. Fabian, a business law practitioner in San Francisco who enlists mediators and says he sees others doing the same.
An early adopter of this approach, Hertz works with Judy Barber, a licensed marriage and family therapist, mediator, and family business consultant in San Francisco whom he first met at a business lunch a few years ago. The seating arrangement was serendipitous. Hertz was grappling with counseling two siblings feuding over how to manage a building they owned together. The sister insisted on gathering and wading through 100 boxes of information before they reached a decision; the brother simply wanted to follow his buddy’s advice. She resented the prospect of being bossed by good ol’ boys; he felt that she undermined and distrusted him. Through discussions with his tablemate Barber, Hertz realized the real conflict was in the siblings’ decision-making styles.
That, he says, was a turning point in his practice. “I learned I needed to find a way to integrate these emotions into business relationships in a more conscientious and thoughtful way.”
Since then, Hertz and Barber have started giving lectures on ways for lawyers and psychologists to work together.
“Lawyers tend to call us when they don’t know how to break through an emotional logjam or don’t feel it’s their place to do it,” says Barber. “There’s also sometimes a fear that if they allow their clients to enter the emotional realm, it will jeopardize the strength of their cases.”
Then there’s the matter of control–the common comfort zone for many lawyers. “When you allow people to be emotional, you lose control. That may be part of why lawyers don’t want to do it,” says Barber.
Hertz offers a case in point: A dispute he mediated recently had been going on for twelve years, with both the client and his lawyer still certain of a sure win. “The lawyer kept saying, ‘But it’s such a good case.’ I had to say, ‘I’m worried you’re going to lose.’ And the client, this multimillionaire conventional guy from a rural state, broke down crying in front of me and his lawyer,” Hertz recalls. “But I knew that I had to find a way for that realization to come into the room.”
Santa Rosa probate attorney and mediator William M. Andrews is another proponent of the kinder, gentler, albeit messier approach to legal practice. “We need to stop acting like there’s no elephant in the room. Emotions enter into most kinds of practice,” he says, adding that others are beginning to adopt strategies first embraced by family law practitioners.
“Many litigation attorneys still have the classic warrior model for going to battle and then having the gunfight at the O.K. Corral,” Andrews says. “With the advent of mediation, there’s never a gunfight, and someone will even say, ‘Why don’t we talk to the bartender first?’ And, frankly, it’s a little embarrassing to have a war model if you’re never going to war.”