I’ve said this before. “I don’t take it personally” is the biggest lie in the legal business. Well, that and “it’s only about money” which is pretty much the same thing. But let’s pretend that you, a seasoned litigator and trial attorney, have achieved legal practice nirvana. Despite the fact that another attorney is getting up across town or on the other side of the country with the express purpose of making you look like a liar, a cheat and a thief on a daily basis, you rise above it with equanimity every working day.
You don’t take it personally.
But your clients do.
And the attorneys who most commonly say that the dispute is “not personal” or “only about money” are often the ones who resolutely refuse to sit in a room, at a table, across from their (doesn’t-take-it-personally) adversary in an effort to use the litigation as an opportunity to make a business deal while at the same time relieving one’s clients’ grinding sense of injustice.
That’s why I’m talking about Poland and enemies today. To shine a light on our common human tendency to demonize our adversaries, particularly when we’ve been opponents for so long that opposition, rather than productivity, has come to define us.
Today’s New York Times reports on the sorry state of a country so used to defending itself against enemies that their absence has made it turn on itself. Poland, Lacking External Enemies, Turns on Itself, should also shed some necessary light on post-Cold War American politics, as Red and Blue Americans eat their own young in a frenzy of fear of and hate for the unseen enemy who laid them off, put their homes into foreclosure and decimated their life savings.
Listen to the wisdom of an ordinary Polish citizen on the current troubles there:
“Poles always feel they need to have an enemy,” Urszula Slawinska, 38, said one day as she walked along a sidewalk in Warsaw, an average citizen headed home, uninvolved in politics, yet keenly aware of what was happening around her. “Because of our history we define ourselves, to be Polish meant to protect our country. So now that we don’t have to protect ourselves, we still need to find an enemy.“
“That’s got nothing to do with my legal practice,” you say, thinking I’ve singed my brain on the open fire I’ve been roasting marshmallows over for too long. And yet I’ve talked to your clients – hundreds of them by now – and most of them – whether middle managers, sole proprietors, or even CEO’s – have come to define themselves as justice seekers in opposition to the devil on the other side of the “v.”
If you find your opponent’s legal or factual positions “ridiculous” or “outrageous” or simply “beyond understanding,” it’s not usually a sign of some ulterior nefarious purpose, but a signal that the case is not settling or progressing as it should because you and your client have become the enemy, a dark presence intent on blinding your opponent just before robbing him of the remainder of his worldly goods.
If no one in the adversarial system was “taking it personally,” if a deep sense of injustice were not driving the litigation in the justice system, you wouldn’t refuse to take the quickest trip between two points by sitting down with your adversaries and discussing the business realities of the commercial problem that has become burdened with justice issues. You wouldn’t ask your mediator to do what master mediator Lee Jay Berman recently referred to as sending Lassie to the separate caucus with an envelope in her mouth, bearing the often nano- or stratospheric offer or demand, one you know is only going to piss the other side off.
When adversarialism drives national politics as it does in Poland today, you’re courting “disaster” as
political infighting  divert[s] the public debate from issues to vitriol [and] [t]he driving force is politics and public relations. . . [as] the government continues to avoid making tough decisions in an effort to preserve its popularity in the fractured political environment.
The story of Poland’s troubles is instructive for lawyers only if we are able to acknowledge that, yes, there’s some irrational demonizing going on; and, that, try as we might, we’re victims of confirmation biasand fundamental attribution error because we’re human beings, not Spock-like extraterrestrials without human feeling, particularly when our efforts are being countered by our adversaries on a daily basis.
As I note in “E is for Enemy” in A is for Asshole, the Grownups’ ABCs of Conflict Resolution,
With or without a reasonable basis to distrust and demonize others, we will do so anyway, creating in- and out-groups with remarkable ease and rapidity. Children and teenagers naturally divide themselves up by beauty, physical prowess or charm (popular kids); by interests such as music, theater or the visual arts; by clothes and grooming (goth, punk or hippie kids); or by the use of alcohol or drugs (party kids and stoners).
We use these identifiers (jocks, stoners and the like) as cognitive shortcuts to quickly identify people who are likely to be friendly, loyal and comprehensible without much study. They are our “homies” – our gangs or tribes. When we grow up, they become members of our political parties, churches and occupations. More perniciously, they become our genders, our sexual preferences and the colors of our skin.
The benefits of in-groups are many – community, safety, expansion of opportunity, friendship and the sharing of work and resources. The detriments are also many. Once we become identified with one or more groups, we tend to view outsiders with suspicion and distrust, even hostility. To maintain a positive image of ourselves and our own in-group members (Christians, Americans, or even simply Pittsburgh Steeler fans) we tend to ignore our own shortcomings or misdeeds while emphasizing the negative traits of others.
When misfortune befalls us and fortune favors them, we too often fall into the naming, blaming and claiming behavior that gives rise to active disputes and expresses itself in stereotyping and scapegoating.
What to do?
Talk to one another. A topic I’ll cover (again) in tomorrow’s post, this time with a very personal anecdote about how the “joint defense dweebs” (myself included) became far less stupid and venal once a petroleum company attorney was forced to join the insurance carriers’ defense team.
Sound familiar? A love story.
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