Contrary to popular belief, most lawyers spend their lives attempting to dissuade rather than persuade their clients to go to court.
Those on the ‘inside’ of the profession know only too well the flaws of the system and the reasons why court is often best avoided.
So why are clients sometimes resistant to our advice? Why do clients sometimes seem to want to go through what we lawyers know can be an underwhelming, expensive and sometimes downright traumatic experience?
Is it that they’ve seen too many legal dramas with lawyers banging their fists on a courtroom desk before revealing a ‘smoking gun’ piece of evidence to a shocked judge and jury?
Maybe. Maybe not.
I think there’s actually deeper psychological reasons at play.
Here’s my top 3:
- Because you keep telling them it’s a bad idea
As lawyers, we think our job is to argue our point; to cajole and to convince at length until it has the desired effect.
But what if all of this might be having the opposite effect to the one intended?
Reactance is a psychological term describing the (often unpleasant) reaction we have to people or rules that threaten or take away our behavioural freedoms. So, if we feel that someone is taking away or limiting our options we rear up like a rebellious horse. We become more steadfast in our own views rather than being persuaded to change them.
We see reactance in our lives every day. And often in circumstances where it seems illogical. Take for example many people’s reluctance to wear masks and stay indoors in response to the threat from Covid 19.
And, on a broader level, haven’t many of us felt resentment and resistance when dealing with an overbearing parent or boss who tries to tell us what to do and how to do it?
And who hasn’t tried to advise a friend or partner who they feel is going down the wrong path, like developing an addiction, only to find that the more we persist, the more that person digs their heels in?
People don’t like it when others overstep their personal boundaries. They react.
And this reactance is heightened when it comes to legal disputes because the people involved are usually frightened. And when we’re frightened, our egos get attached to our ideas about things. And we cling to what feels safe.
Curiously enough, the formality of a courtroom and the authority of a judge often feels to clients like the safest and most ‘known’ option. They’ve seen it on telly or their friend or family member has been through it and they feel like they sort of know the deal.
That’s not often the case with more new-fangled methods of dispute resolution like arbitration or mediation.
2. Because they need to be ‘witnessed’
When we go through any sort of loss we need that loss to be witnessed. If that doesn’t happen it’s harder for us to psychologically process the grief or loss.
There’s something that’s important about having loss acknowledged and reflected back to you. People are increasingly open about loss on social media these days, for example celebrities like Chrissy Teigen and John Legend who’ve opened up about loss recently. A part of that is due to this need to have our losses witnessed.
Clients who are embroiled in a legal dispute and contemplating court are suffering some sort of loss too, whether that hit is to their wallet or their emotions (or often both).
But do people really need to go to court to be ‘witnessed’?
I think that for some clients that does feel necessary.
Because effective ‘witnessing’ takes place when there is a process that properly reflects and befits the pain and the loss. That’s why, when someone dies, we have funerals, cremation ceremonies or memorial services. There’s a comfort in such formalities; their gravitas reflects the extent of the loss involved. The steadfastness of the rituals are something to hold on to when everything else in your world is topsy turvy. A court process satisfies a similar need for some clients.
And a public judge has a particular potency in clients’ eyes that mediators and possibly even arbitrators may not have. Yes, a client can be ‘seen’ and ‘acknowledged’ in mediation and arbitration. But there is an extra hit of validation that they receive (or hope to) in the public court system. And while, for some clients, non-court dispute resolution is attractive precisely because it takes place privately out of the spotlight, for others this takes away that element of validation of their loss that a public system provides.
3. Because they feel they need protection
As I’ve said, most people in legal disputes are scared. So they feel they need to be protected. And the court system, flawed as it is, gives them a sense of protection.
You may have a client who is as confident as they come, perhaps even aggressive at times. You may be thinking they are the last person who needs to feel the protection of the court system.
But remember this: there’s often huge dissonance between how a person presents and how they actually feel. And often the bigger the bluster the deeper the insecurity.
Our clients are usually reacting to the stresses of the situation from a childlike state. So, while the world sees them as an angry adult, they see themselves as a fearful child under attack. Looking at the world through a childlike lens makes us prone to overestimate dangers and underestimate our ability to cope. And so the court system, while scary in one way, can also provide some degree of certainty and comfort for a person who is feeling vulnerable.
So what should we be doing?
First, understand that the client may have emotional reasons for wanting to go to court. And trying to fight against those emotions directly like a battering ram is pointless. So, instead, try to get inside their head and see the world the way they do.
Second, resist ‘over-advising’ them. What I mean is the cajoling and pointing out the flaws in the court system until their eyes have glazed over and they’ve stopped listening. Avoid that. Try a more round the houses ‘I’m not even trying to persuade you’ approach (see 3 below).
Third: be curious and open-minded (genuinely). Yes, give them the information they need. But then, walk alongside them; see the world like they do, ask open questions: ‘what do you think the outcome of going to court might be?’, what do you think you’ll do from here?’. Give them the space to come to their conclusions. You never know – they might surprise you.