They say that attorneys are not only practitioners in the law but are also counselors, thus denoting some measure of expertise in the area of psychology from which to counsel a client. However no psychology courses were offered at the law school I attended, so whatever expertise I have in psychology is simply by virtue of my experiences with people and aggressive situations. Despite no real education in the way people think and act, there are a couple of universal rules that I have decrypted that are based on my experiences in the practice of law.
Rule #1: The other side believes that you would act the same way that they do.
I had a matter a few years ago in which I represented a sister against her brother in a trust dispute. All along I had been told by my client that her brother was deceitful, back-stabbing and a liar and that nothing that he said could be trusted. But when it came to the allegations being made, it was the brother who claimed that his sister was the deceitful, back-stabbing liar. While it isn’t unusual for one side to think they are in the right and that the other side is the villain, as the litigation progressed, claims of dishonest litigation tactics were frequently asserted, as well as attempts to argue to the judge that the sister was being dishonest. My client was floored and distraught by such allegations. It was at that point that things became very clear to me. When someone is dishonest and deceitful, they expect that everyone else is the same way. Because they would play games with discovery or withhold evidence or act underhandedly, they assume that everyone else would as well.
Another example: a sister and brother are engaged in negotiations relating to a trust and the brother is convinced that the sister has acted fraudulently with respect to the trust property. So he writes scathing letters demanding information and accountings, accusing the sister of such fraudulent conduct as stealing money, making inappropriate investments or engaging in self-dealing and not only does he make such allegations vociferously, he does so with abject righteous indignation. How dastardly his sister has been acting! The sister is outraged and protests her innocence… and the records are clean, they support her position. So why is the brother so intent on his indictments? Because if the roles were reversed and the power was his, he would have stolen money, made inappropriate investments and engaged in self-dealing. And so he projects this on his sister. Certainly since he would act this way, then his sister would as well, right? It’s almost as if he justifies his own deceit and dishonesty by claiming it is a reaction to how the other side is acting. Or, stated another way, he projects on the other side the despicable way that he would act.
Rule #2: You cannot expect that people think the same way that you do.
I have had this discussion with my wife on many occasions when she complains about how someone with whom she is dealing is acting absurdly. Whether it is a clerk in a store, an opposing counsel or even a customer service representative with the telephone company, I have suggested to her that she cannot expect that people would act the same way she would. For example, she went to a clothing store to have a security tag removed a couple of days after the article of clothing had been purchased and taken home. It seems that the clerk was too distracted to remove the tag the first time around, so a second visit was necessary. However, when she went to the store and was the only person in line to receive assistance, the two clerks behind the counter simply ignored her. Eventually one of the clerks raised her eyes, apologized because she thought the other clerk was assisting the customer and took care of the tag. My wife was livid, complaining about how neither of the clerks said anything or made any eye contact, so why would this one have thought that her co-worker was providing assistance! I had to remind her that she cannot expect that other people think the way that she does.
Or consider this example: one party to a litigation matter has had enough of the fight and simply wants it to end. So he makes an offer to resolve the matter. While it isn’t the amount that was demanded in the complaint, it is certainly a reasonable offer and one which will save the other side attorneys’ fees, litigation costs and time. But the other side rejects the offer and instead refuses to make a counter-offer. The client cannot expect that just because he thought the offer was a strong offer that the other side thought the same or that the other side has the same motivations for the lawsuit. Just because you think that a course of action is reasonable, you cannot think that the other side sees things the same way.
So much of the practice of law is psychology, yet we as attorneys are relatively ill-prepared for this. So we need to gain our expertise from the same school that has educated so many of our predecessors: the school of hard knocks. The endless discussions with the client, consoling her because she cannot understand why the other side acts the way they do, they all lead to the same conclusion—people are unpredictable. They act unexpectedly and illogically—the only advice that we can give our clients is to not be surprised when the other side acts irrationally or unreasonably. Because the other side would say that they are completely rational and reasonable. Have a great week.