In my first couple years of practice, I recall hearing a couple of times, "oh, you're the female lawyer." And I was thinking, "wow, gee, good guess." It was frustrating to be seen as a novelty, even if very slightly, and even if the person saying it was totally unconscious that they were under some kind of 1950s patriarchal spell.
Suppose you’re a woman lawyer too. Suppose you are younger than your client. Or maybe, you’re the same approximate age or older than your client, but your client is totally unaccustomed to interacting with women in leadership or authority roles, so he’s not quite sure what to make of you.
Either way, your client is bugging out about their case, and this is challenging for you, to put it politely.
Maybe he is showing up in your office every day without an appointment, sitting in the waiting room with a petulant scowl that makes you consider coming in through the back door and hiding behind the Xerox machine. Maybe she calls every day to whine, and you feel like you’re Bill Murray in “Groundhog Day,” having the same conversation again and again. Maybe his mother calls you to complain that the case isn’t resolved yet. Oooh, that’s the GOAT.
You’re the one with the schooling, and possibly also the years of experience, and the know-how to analyze her situation, or explain in plain English what he is facing. But you feel ill-equipped to manage your client’s reactivity, and find it difficult to work around your client’s emotional state to convey important information to them and do your job.
Litigation of any kind is a highly charged emotional experience, especially the longer it goes on. It is, basically, varsity squad adulting. It is a lot for anybody, especially someone who does not have all-star emotional maturity, executive functioning, a solid support system and three whole foods meals per day. “Common” sense is actually rare, because it seems to be unavailable in the average day in the life of so many. Even among so-called middle-class Americans, we find a lot of economic anxiety, poor nutrition, family pain out a Steinbeck novel, and low-grade modern-life-type trauma that just makes it just damn hard to have a legal problem on top of everything else that’s going on.
Each person has inherent worthiness, even if they’re being a pain in the ass. (I know you know this already. But it is worth reminding ourselves.)
Litigation can bring out some of the most immature thoughts and feelings out of typically level-headed, responsible adults.
So, in this post I’ll be talking about people who do not qualify as disabled, and just have “garden variety” trauma and drama that doesn’t warrant an official diagnosis. We are assuming here that you have determined that they are not suffering from a diminished capacity, asking you to help them commit crimes or lie, or otherwise so horribly interfering with the representation that you have grounds to withdraw. (That is a separate subject; refer to Washington State -- or if you're not in WA, your state's -- Rules of Professional Conduct 1.14, Client with Diminished Capacity, and 1.16, Withdrawing or Terminating Representation.) They’re just…being human, freaking out, and you’re freaking out with them.
So, how to stop freaking out with them? How can you “hold space” for your client in a way that you will fulfill your ethical obligation to represent them competently and communicate? How can you do this without your client feeling so judged or shamed that they shut down and stop listening to you at the worst possible time? How can you touch the core of your client, the place where their higher wisdom is receptive to your learned advice?
First let’s review a few Rules of Professional Conduct. I cite to Washington State’s. If you practice somewhere else, of course, check your own state's rules. I won’t copy and paste all the rules here; if you want to read the full version of cited rules, and the rest of the rules, they're all right here: Washington's RPCs.
Let's start with 1.1, Competence. In addition to the basics -- study up before you take a client's life/freedom/future into your hands -- there's another benefit. When we know what we are doing, we project authority and confidence in our vibe. People can feel it, sense it, and almost smell it. Remember how you had so much memorized for the bar exam? Remember the time you over-prepared for a motion hearing and the words just flowed out of your mouth? Maybe that was as recent as this morning! A client who might doubt you because of your age, inexperience, or appearance will feel it if you know your subject matter, If you also use *good posture [*Amazon affiliate link] and practice empowering body language -- even if it is in the privacy of your apartment when you are getting ready in the morning -- it will carry through your day.
Let's also discuss RPC 1.2, Scope of Representation and Allocation of Authority between Client and Lawyer. Your job is to give your client professional advice that enables them to make the best decision for themselves. Sometimes people who have legal troubles have been in a reactive, passive orientation to their own lives. These are the folks who will say, "this is all up to you," the first time you convey a settlement offer. You know to gently, but firmly, tell them that you absolutely cannot make that decision for them, and that all you can do is give them advice, AND you don't have a crystal ball or a time machine. But sometimes they still want to be wishy-washy. Other clients still haven't let go of their anger at their situation, and when you get the first settlement offer, they will rant and rave and want to drop out of negotiations, even if that isn't a good idea. You are ethically obligated to abide by their wishes, and at the same time, if you can have a good relationship with this client, they may reach the best decision for themselves. Your client hired you to be the leader, to not have to "do their own brain surgery." How to be this leader? Communication.
This is where we get to RPC 1.4, Communication. This rule covers a lot, but for purposes of this post, we'll focus on the part that says the lawyer shall "explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." The comments to RPC 1.4 flesh this out a little, but doesn't tell us precisely how to do this in the soup of stressful and uncomfortable emotions.
After you've worked on yourself (competence, good posture, confident body language) now it is time to work on holding space for your client. Holding space means you listen without judging your client, and without getting worked up too. Role Reversal is a great first step.
Role Reversal is a technique for building deep understanding and compassion for your client so that you can hold space for him.
Role Reversal is a technique borrowed from Psychodrama, a therapeutic method that uses reenactment and story. Of course, you do this exercise with co-counsel so that you don't violate client confidentiality. First you will play your client, and your co-counsel will simply listen. Stand face to face, or sit in two chairs facing each other. Your co-counsel will listen, silently, and isn't allowed to butt in until you're done. Then switch places. Your co-counsel is now playing your client. They will repeat back as much as they can remember from what you said, and now your job is to simply listen. If you find yourself wanting to ask a question of your "client," you have to switch places again and answer it yourself.
You will learn a lot this way about your own attitudes, judgments, thoughts and feelings that subtly interfere with explaining things in a way your client will hear them. The next time you interact with your client, you will sense that any barriers have softened.
The Brooke Castillo Self-Coaching Model is another technique for understanding where your own thoughts and feelings may be interfering with good client communication. You have to manage yourself before you can be an effective leader with your clients. It's a daily process.
Suppose your client reacted negatively to a settlement offer. You take what your client did or said, described as neutrally as possible, and call that the circumstance. What are YOU thinking about what they said or did? That is your thought. What do you feel when you think that thought? There's the rub. Maybe it's anger, frustration, worry, fear, disgust, you name it. Then there is something you are doing or not doing because of that emotion you are having: Are you a little snippy in the email response you fire off? Looking at social media instead of working on the brief? Are you sending desperate-sounding emails to opposing counsel who is ignoring you? Are you hiding behind the Xerox machine? Then, what is the current (or likely future) result of this kind of behavior on your end?
Once you work all that out, you might feel better immediately. Or, you might not. Either way, it's ok. If you're really stuck, and keep obsessing about what's going wrong and how it's impossible to please everyone, is to add the tag "and that's ok," or "I'm figuring this out" to whatever is going on in your brain.
For example, "my client needs to be more patient, and that's ok." Or, "my client is not going to like this offer, and I'm figuring out how to break the news to him." Just these slight modifiers will trick your brain into seeing your own solutions instead of thinking all hope is lost.
When you must convey bad news or present complex choices to your client, it will go over best if you do your OWN emotional management first -- about the client, the situation, and yourself. Being able to feel and work through all the ups and downs of litigation for yourself demonstrates palpable confidence to your client, and makes you the warm human leader in the relationship that your client needs.
If you'd like to work more in depth on rising to the leader you are meant to be, talk to me about private coaching!