Thursday, October 8, 2009

The Heart is a Piece of Plumbing

Grant you, it’s a very sophisticated and marvelous piece of plumbing, but, at bottom, its function is to pump liquid, not to serve as a substitute for the brain or for due diligence! Making decisions on important issues "because my heart tells me to" — i.e., based on the emotion of the moment instead of on thoughtful analysis — is a recipe for disappointment at best, and disaster at worst.

Most attorneys and mediators involved in personal injury work recognize that emotion is a fact of life. It is something we’ll have to deal with as long as our business involves helping to pick up the pieces littering peoples’ lives after serious accidents or other traumatic events.

Conventional wisdom has it that venting can help to dispel emotion that may cloud an injured plaintiff’s judgment concerning settlement. There is a lot of truth in this. However, there is a danger that venting may be too cathartic, and cause the parties to relax too much, after having gotten it all off of their chests. Unvented anger may cause people to over value a case, thereby lessening the chances for a fair settlement. But too much relief at having vented may also have the opposite effect. Just because the parties may have started to feel warm and fuzzy doesn’t mean that the case ought to be settled for more or less than it is worth.

It is the lawyer’s job to see that the client gets a fair deal. As I said in an article I wrote a couple of years ago:

In the midst of all the emotion and feeling good about oneself promoted by much of the mediation literature, lawyers must protect their clients. A lawyer cannot allow the client’s emotions of the moment to override his or her good sense. The lawyer absolutely cannot recommend an unfair settlement just because the client is temporarily relieved by venting, or induced into a feeling of euphoria by having had a good cry with the other side. The lawyer must protect the client from the perception of value, if reality lies elsewhere.*

The job of the lawyer is not to accommodate the client’s emotion and use it as an excuse to recommend a settlement that the client may temporarily go along with at the mediation, but regret later on. Instead, the lawyer’s job is to objectively advise the client based on the latter’s long-term interests. A lawyer who believes that the client is being overly influenced by his or her "heart," should try to talk the client out of moving too precipitously and, if that approach fails, should suggest strongly that negotiations be suspended and resumed at a later time after some further reflection and analysis.

The object of mediation is not settlement at all cost, but settlement that fairly addresses the long range interests of the parties.

* See "Of Potted Plants and Personal Injury: a Contrarian View of Mediation," published in the Fall 2007 issue of New Hampshire Trial Bar News (Vol. 29, p. 169), published by the New Hampshire Trial Lawyers Association (now The New Hampshire Association for Justice).


Joe Markowitz said...

I agree with you that we generally want clients to make "rational" decisions. But there is a lot of brain research out there that shows that humans are actually incapable of making purely rational decisions. People who have had the emotional part of their brain disabled are completely unable to decide anything at all. They will just endlessly rationalize every choice and become frozen in indecision. There are some pretty interesting discussions of this in Jonah Lehrer's book How We Decide.

John Lassey said...


I agree that it is difficult for some people to decide things rationally. But I still think that it is one of the attorney's jobs to do his or her best to see that that difficulty doesn't get in the way of what is in the client's best interest --- and also to see that the client's indecision doesn't go into an endless loop.


Joe Markowitz said...

Actually, my understanding is that as a matter of biological fact, it is impossible for anyone to decide anything by a purely rational process. Unless you also use the more "primitive" part of your brain, the rational part of the brain will cause people to become trapped in endless loops of indecision. That is because we can rationalize the pros and cons of doing anything endlessly. This is a hard thing for lawyers like you and me to accept, because we like to think we can divorce reason from emotion, and make good decisions based on a purely rational calculation of a party's interests. But my point is that we cannot convince our clients of that unless we engage their minds on an emotional level as well.

Settlement of a lawsuit is rarely a purely rational decision. If it were I could convince people to settle merely by showing them a formula, which I do sometimes, proving that the settlement value of a case is equal to an average of the most probable outcomes of trial minus the costs of going to trial. But it is much more complicated than that! People's feelings of justice or injustice, their relationship with the other side, their attachment to the litigation process, all must be considered and dealt with before any kind of "rational" decision can be made.