A recent news story about the DIAL-LAWYERS bankruptcy underscored the staggering power of one the most insidious and underestimated forces in the practice of law: human emotion. The skill, experience and training of attorneys will always remain vulnerable to emotional situations. While this can’t be avoided, attorneys–like everyone else–can better arm themselves by increasing their understanding of and adaptability to the emotional situations.
This issue of emotion eclipsing judgment was one of the primary reasons for producing the course Clients Gone Wild! we’ve been previewing here and on Bitter Lawyer. The case the course is based on, GMAC v. HTFC, contains no less than three puzzling instances of human behavior that can only be explained by overpowering emotional irrationality. The puzzle of motivation for each of them is a potentially powerful exercise in ethical projection–what would you do?
The first and most obvious instance is that of the deponent. The panelists and other commentators could not come up with any rational strategy that his profane conduct furthered. Court filings indicate that his attorney counseled him against his behavior both before, after and during the two days of depositions. Even in his own affidavit in support of his attorney’s motion to reconsider sanctions, the deponent offers no explanation for his behavior whatsoever.
The judge not only sanctioned the deponent but his attorney as well. One of our panelists, a former judge, didn’t agree entirely with the level of scrutiny the judge focused on deponent’s counsel. He didn’t feel that there was enough proactive conduct to warrant sanctions or disciplinary action. The closest overt support for the client’s misconduct was some laughter which the attorney claimed wasn’t his.
None of this, however, explained why the deponent’s attorney didn’t stop the deposition. We kept coming back to this: When a client is so obviously not acting in his own best interests, why wouldn’t an attorney at least attempt to prevent further damage? Again, as with the deponent, there was no rational explanation for this inaction leaving some emotional short circuit as the best explanation.
The last instance of puzzling conduct was that of the deposing attorney. The conduct of the deponent and his attorney certainly helped his case by harming theirs. The question for us was a matter of degree. The panelists all agreed that after an hour or two, the damage would have been made. Twelve hours, however, seemed excessive to everyone. Once again, there really wasn’t a legal strategy anyone could come up with that justified the deposing attorney withstanding an additional ten to eleven hours of name calling.
Crazy situations like these are heightened by just this kind of scrutiny. While this exact scenario probably won’t play out anytime soon, it does seem useful to play the “what would I do?” game of empathetic projection. Due to the nature of the intense emotions, it’s nearly impossible to accurately perceive things from within crazy situations like this. The more development our empathetic muscles get from watching others’ failures, the more prepared we will be. There is, after all, a reason for reality TV.