First Blog in NEW "Thursday Thought" Series--Making Emotions Work for You

Posted By Laura Pedersen and Elaine Owen, Mar 10, 2016

KHNT is proud to announce a NEW "Thursday Thoughts" blog series.  Each Thursday you will find an original article--applicable to the broader legal community--discussing current research on negotiations, newer writings in the area of client counseling, or some of the “classic” scholarship concerning negotiation theory. Please check back on the blog each week for our “Thursday Thoughts!”

And now to our first thought, provided by the wonderful Laura Pedersen:

Making Emotions Work for You
Emotions play a tremendous role in decision-making. It turns out harnessing this reality is more productive than resisting it.

The prevailing belief in our profession is that emotions are “antithetical” to a balanced legal system. We see social progress as the triumph of logic-based legal codes over emotion-based, eye-for-an-eye systems.

But new scholarship emphasizes that highly successful lawyers are (gasp!) emotionally intelligent. In a recent article published in the Nevada Law Review, legal data guru Randall Kiser reports that the most successful lawyers know when demonstrating emotion is important (for example, in front of a jury, when connecting with a client) and when to put aside emotion in favor of logic (for example, when evaluating a case).

Here are five practical tips for harnessing emotions in each of these areas. (Don’t worry, none of them involve a weekly Kumbaya session.)

1. Client Counseling: Use Your Words
Success in client counseling depends on how you make the client feel. A stressed client won’t remember case-critical details or even the advice you give them. Instead, how a client feels about his experience with you often matters more than the outcome that you help him achieve. The basic principle is, as aptly phrased by Maya Angelou: “[P]people will forget what you did, but people will never forget how you made them feel.”

So, make your prospective clients feel good. Use your client’s name at key points in your conversations with him. Remember his kids’ names. Offer him a bottle of water. Keep a list of phrases that others said to you and that really resonated, and use them yourself.

2. Jury Trials: Be a Storyteller
Our brains are wired to understand stories. Knowing what stories will resonate with your jury can be a boon. Before voir dire, spend some time talking to locals in a coffee shop to get a sense of what your jurors will be like. Read the local paper or watch the local news to learn about the stories your jurors are absorbing. Use these stories to craft the one you will tell at trial. When delivering your opening and closing statements, don’t just get the jury emotionally involved; get yourself emotionally involved. Ask yourself why this story matters to you personally.

For more pro tips on using storytelling in the courtroom, check out the free webinars from the National Institute for Trial Advocacy (NITA). You can find two of them here and here.

3. Case Assessment: Stepping Back
Create a mental or actual list of “red flag” moments when stepping back from emotion is critical. Here are two situations to put on your list:

(1) Your client is struggling with a disturbing experience. Empathize with them, yes, but have the presence of mind to ask yourself if they need professional help. Indeed, recommending non-legal solutions is one of your ethical obligations.

(2) You genuinely like your client as a person. Terrific! But do not let your opinion prevent you from delivering bad news promptly (also a professional responsibility).

 4. Moving between Modes: Build up Habits
Many of the lawyers Kiser interviewed for his project reported that learning to toggle between situations requiring emotions and situations requiring logic takes active self-reflection.

But it also takes practice. Develop habits that help you make the leap. To stop emotions from taking over, try getting up and physically leaving the building for a few minutes, not just leaving your desk. Set a deadline: give yourself the next three minutes (up to ten depending on the situation) to think and feel whatever you like. (Just don’t say or write whatever you like!) Then, give yourself permission to move on. If professionally appropriate, you might also describe your concern to a candid office-mate who you trust to be empathetic but also to offer concrete action items for moving forward. In contrast, if you need to build up emotion, run a Google search for inspirational quotes or even put on some Adele.

5. Practicing Self-Awareness: Hiring Criteria and Training Programs
In the last two decades, medical schools have started asking candidates brief interview questions designed to test emotional intelligence. The schools adopted this practice after considerable research suggested that new doctors lacked good bedside manners.

Your law firm can do the same. Next time you hire for your firm, ask interviewees to explain how they might handle a delicate client interview or professional responsibility concern. Consider their reasoning, not just their conclusion, to see if they evaluated emotional factors. Another potential step: offering self-reporting emotional intelligence exams (like a Myers-Briggs test, but for feelings) in your training programs for current employees.

Rinse, Repeat

Balancing emotions and logic is a challenging, career-long process. You are going to make mistakes. But, like any aspect of legal work, great challenges bring great rewards.

For details, see Randall Kiser, The Emotionally Attentive Lawyer: Balancing the Rule of Law with the Realities of Human Behavior, 15 Nev. L.J. 442 (2015).