Do Your Clients A Favor: Focus on Emotion and a Lifetime of Learning

Posted By Chris Ronne, Nov 15, 2013

 The Greatest Generation, who grew up during the Great Depression and endured World War II, continues to age, and Baby Boomers are progressing into their 60s. With this aging of a sizeable portion of the legal world’s clientele, lawyers must develop their understanding of how the aging process affects informational processing and decision-making. Lawyers should learn to employ simple tactics to improve the way they gather information from clients in different age groups, which is a critical aspect of effective client counseling.

Over the past few years, Dr. Laura Carstensen, Director of the Stanford Center on Longevity, has worked with her colleagues to conduct studies that explore the role of motivation on memory. These studies have resulted in the development of the socioemotional selectivity theory (SST). Importantly, SST considers the impact that aging and perceived lifetime horizons, i.e. how much time someone believes they may have left in life, have on cognitive preferences for positive and negative information.  SST has the potential for a broad reaching impact on how the elderly experience society. One unintended but useful consequence of SST might be in helping lawyers become more effective at client counseling.

Accurate Information, Effective Counseling

Presumably, after rapport and trust have developed between an attorney and a (prospective) client, the critical information-gathering phase of client counseling occurs. Appropriate legal assessments necessitate an accurate understanding of the facts. Lawyers ought to be aware that psychology research strongly indicates that as people age, they are more likely to retain positive information and subconsciously disregard negative information. This phenomenon is largely attributed to a greater focus on fostering positive relationships in light of perceived limited lifetime horizons. So, in a subconscious effort to maintain a cheerful relationship with Graham, her Registered Nurse, your client may "remember" that he took “only about an hour” to render assistance after she slipped and fell in the restroom. In fact, he may actually have left her bruised and stranded on the tile floor quite a bit longer than that – a crucial detail that would strengthen her elder abuse claim.

Attorneys already use various strategies to trigger memory recall, by asking their clients to remember events in non-chronological order, to recall the events that they believe fill particular elements of a cause of action, to recall incidents by telling a story of events focused around a central theme, or to place themselves in another witness’s shoes and recount what that other person might have seen. In addition to these time-tested techniques, two other memory trigger methods based on emotion and memory research deserve to be in lawyers’ arsenals.

The Focus on Emotion

Lacking boundless attention, most individuals focus on goal-oriented information. When we perceive our lifespan to be in a constrained time frame, we tend to focus on positive relationship building and retain information that achieves that goal. This psychological tendency is more likely to exist among older clients. Lawyers should consider the fact that, in addition to inflating a situation’s positivity, a client might devote more attention (and therefore memory) to positive facts and disregard the negative ones. It is not the client’s fault if he or she cannot recall the negative facts; he or she simply may not have given those factsit much attention. And, placing too much pressure on a client to recall an event risks contamination, the phenomenon of creating a false memory.

In lieu of risking contamination, an attorney who finds herself unable to obtain necessary information might try questioning the client in terms of emotions felt around certain events rather than on details and chronology. The shift to what the client felt, not what he or she thought, might do the trick in triggering the retelling of the details that the attorney needs in order to address the client’s situation. This simple tactic may help paint a more accurate portrait of what happened and boost the lawyer’s and client’s quality of decision-making.

Perceived Time Horizons and Moving Forward

In contrast to a perceived limited lifespan, when time is conceived as open-ended a corresponding shift to informational gathering occurs. Studies have shown that informational memory performance is enhanced when participants are instructed to report on what they “learn” rather than what they “remember.” Performance deficits are likewise exacerbated when there is a reminder of or focus on age-related decline. By emphasizing future learning and avoiding a perceived time horizon, it is possible that a client will begin to focus more on informational gathering than on retention of emotional information.

These studies could be especially useful when an attorney counsels a client in multiple sessions over an extended period of time. As early as possible, the lawyer should instruct the client to focus on what they learn between now and when the attorney and client meet again, rather than wait for the client to return with a memory. Avoiding a focus on limited time horizons and emphasizing learning rather than passively remembering might yield better results for ongoing sessions.

Research into the psychology of aging is likely to flower as life expectancy increases and a greater portion of our society is living out the golden years. Lawyers should stay apprised of these scientific developments, particularly those involving SST, in order to provide a more effective service to their clientele.

For further reading regarding cognitive preferences associated with aging, see Laura L. Carstensen, Growing Old or Living Long: Take Your Pick, Issues Sci. & Tech., Winter 2007, available at http://www.issues.org/23.2/carstensen.html.