Litigation, e-Discovery, e-Motions, and the Triune Brain

To understand e-discovery you must understand litigation. To understand litigation you must understand the emotions of the litigants. They are primarily negative (think fear and loathing, hatred and greed); after all, they are in a dispute and animosities are often high. An attorney must see these emotions and understand how they impact the conduct of the plaintiffs and defendants in a law suit. But, at the same time, an attorney must be careful not to get caught up in the emotions.

A good attorney is detached from the emotions of the parties. They serve as an objective voice of reason; an independent source of wise counsel. A good attorney understands the conflict, but is never part of the hostilities. A good attorney is above the fray. He or she is careful to never inflame the passions of their client. A good attorney is a peacemaker who resolves disputes, not encourages them. Unfortunately, not all attorneys are good attorneys. Some are mediocre. Some out are outright unconscionable.

Exploitative Lawyers Are A Very Old Problem

Despite the best efforts of the Bar to screen out applicants of poor moral character, there have always been bad attorneys in the Bar. There have always been lawyers who take advantage of the intense emotions inherent in conflict, attorneys who manipulate people to their own benefit. They do not seek to calm the passions, but rather to inflame them. They see it as an effective tool to make money, to attain power and fame.

This kind of dispute exploitation is not unique to plaintiffs counsel, and this is not an essay bashing the plaintiffs Bar. Even though defense counsel do not have the same temptation of big contingency fee awards, they too can seek to encourage the subjective passions and views of their clients so as to prolong litigation and pad their fees. I have seen this kind of unethical conduct by both sides. It most frequently raises its ugly head where big money and big fees are involved on both sides.

This kind of unethical conduct by attorneys is not at all new. In fact, it has been plaguing the legal profession for centuries. It’s extreme forms were long ago made crimes and torts, often known in the common law as champerty and barratry. Today it goes by the terms of malicious prosecution, abuse of process, or more commonly, ambulance chasing. It is still illegal and unethical for attorneys, but rarely prosecuted, or even punished.

Lawyers Must Be Above The Fray

Most litigation attorneys understand full-well that their role is to be the objective voice of reason. Of course they sympathize with their client’s plight. They hear and acknowledge their client’s emotions, but they do not encourage them. They do not add fuel to the fire of anger, hatred, fear, and greed. They look to resolve disputes, to calm the emotions. They try to turn the parties to logic and reason. That does not mean that they become Vulcan-like, empty, and cold. A good attorney will argue vigorously and with passion the legal positions of their clients, but they will do so without any personal enmity, hostility, or  animosity to the other side, much less to the opposing counsel or the judge.

The entire legal system depends upon lawyers to see, but be above, the fray of fragile emotions. It depends on attorneys to keep a clear head, to always remember that it is not their dispute, it is their client’s dispute. It depends on attorneys to reduce, not encourage, the animosities inherent in litigation.

If my thirty-two years as a litigation attorney have taught me anything, it is that you cannot be effective as a lawyer unless you maintain objectivity, unless your decisions are driven by reason, not emotion. A lawyer must be aware of the emotions of the litigants, and understand how they drive the parties’ behavior, but they must always be above them. Failing that, they fail as a lawyer.

This can sometimes be very difficult. I acknowledge that I have sometimes been caught up in the passions of my clients, of a dispute with opposing counsel, at least for a time. But then I would catch myself and settle down. Anger must always be controlled. Even excessive joy and gloating in victory is not a good thing.

I was lucky to have four mentors as a young-pup attorney in my twenties and thirties. I would always get upset when an opposing party lied under oath. I would get really pissed when an opposing counsel played a dirty trick on us. In the world of state and federal litigation of Orlando, Florida, we dealt with some really bad apples, often they were out-of-towners.

I have seen outright intentional lies and fraud by attorneys of all sorts, from forgetting to copy us with memos, intentional misstatements of law and mischaracterizations of cases, obvious hide-the-ball tactics, extortionate discovery requests made just to harass, sandbagging of all sorts, mud-slinging, even against opposing counsel, as well as outright lies and disrespect to a judge. I have even seen attempts to slip in new fake exhibits at trial. I have also seen champerty and barratry by attorneys, solicitation of suits of all kinds, some of which were quite frivolous. I have seen abuse of process and malicious prosecution. I have seen attorneys who are totally in the fray of all disputes they enter. They curse and shout at everyone in sight.

I have seen attorneys who obviously pander to their clients’ animosities, who expand and prolong litigation needlessly. Unfortunately, this is quite common among the ethically challenged members of the Bar, and is frequently rewarded financially. Ever wondered how the not-so-smart attorney has so much money?  Now you know (either that or the silver spoon syndrome). There are many slang references to this practice among lawyers, including milking a client, and keeping the fires going until the client runs dry, runs out of money, and then, and only then, talking about settlement. This applies to some defense counsel as well, as Craig Ball was quick to point out in his comment below. I am pretty sure all experienced lawyers have seen this kind of thing all too often. No wonder the law and lawyers have such a bad reputation. We are not doing a very good job of policing ourselves.

Lesson of a Young Lawyer and the Triune Brain

I used to get quite upset as a young lawyer when this kind of thing happened to me. But one of my mentors, Tom Moran, had a slogan: Don’t get mad, get even. He would say that quite often when I was an associate working his cases. It was a lesson of harnessing emotions into action, of using them for motivation, and not allowing them to use you, and push you into emotional reactions you would later regret.

After several such lessons, when I saw for myself the effectiveness of this  strategy, I eventually learned. Oh, I still get angry, even to this day, at what some lawyers do, but I never act on this anger. I channel it to work even harder. My actions as a lawyer are governed by my thinking, my intellect, not my feelings.

A little diversion into old brain studies would be helpful at this point. Some consider the human brain to be composed of three distinct structures. Neuroscientist and physician, Dr. Paul D. MacLean (1913-2007), Yale Medial School, called our brain a triune brain. It is an evolutionary view of our brain and mind functioning. Our neocortex is the grey matter on top. It is where our higher human functions originate, our reasoning and language skills. But below it are two older brains that came earlier in evolution, the mammalian brain (limbic system), and the still older reptilian brain (brain stem and cerebellum). The oldest reptilian brain governs basic instincts, your autotomic nervous system; it is where our flight or fight instincts reside. The mammalian brain is the home of feelings, of pleasure and pain. You share this brain with your dog.

A lawyer should not deny their feelings, or the emotions of the parties, or ignore them. That would be a mistake. But we should not allow them to dictate our actions. We should use all three of our brains, but make sure that the neocortex is in control. After all, who wants a dog for a lawyer? Yes, they can be cute, but their bark is ultimately unpersuasive.

The old saying drilled into me as a young associate – don’t get mad, get even – was not about getting revenge and allowing the lower brains to control. Just the contrary. Our goal was always about justice for our clients, not personal revenge. Our satisfaction came in seeing justice done. More often than not, it was, and the bad-apple-type-attorneys failed to deceive. I am happy to report that after a lifetime in the trenches of the law, I am still upbeat about our system of justice. It is imperfect, but it is the best in the world.

Conclusion

Lawyers who allow themselves to get caught up in the emotions of their client, or the emotions of the dispute itself, do a disservice to their client, and a disservice to the profession. We are peacemakers, not inciters. We are officers of the court, sworn to bring disputes to a reasoned and just resolution. As Rule One requires, we are “to secure the just, speedy, and inexpensive determination of every action and proceeding.” This can only be achieved by our intellect, our higher uniquely human brain functions, not by our reptilian or mammalian brains. We have evolved from the slime, the mud. We should stay in the upright world of moral conduct.

This dictate to rise above the bitter fray of litigation hostilities, and rely instead on reason and facts, applies to all aspects of litigation, including e-discovery. Do not ever let the opposing party’s or opposing counsel’s actions provoke you to an emotional response. Do not respond with anger to an e-discovery requesting extortionist, or a hide-the-ball responding illusionist. Do not reply in kind. As my mother would say, two wrongs don’t make a right.

We are all three-brained beings as Dr. Maclean and many others before him have shown. Be sure you respond with your human brain, not your mammalian or reptilian brain.

This does not mean to capitulate or allow yourself to be bullied. This does not mean to just sit back and allow our legal system to be abused. It means to stay cool, to use your higher brain functions, your intellect. Use logic, language, reason, and truth to obtain justice. The pen is mightier than the sword. Given time the calm voice of truth and reason will almost always prevail. Never stoop to the level of another lawyer who has chosen the dark side, who is controlled by, rather than controls, his or her limbic system. Clear thinking and cold facts will best serve them their just deserts.

10 Responses to Litigation, e-Discovery, e-Motions, and the Triune Brain

  1. Ralph Artigliere says:

    Right on target, as usual Ralph. I would add that professional advocacy is the most effective advocacy in the long run. It reduces conflict, stress, and mistrust by the opposing party (and judge). Top lawyers retain clients and impress judges by efficient, economical, and successful results, not cheating and milking the case.

    You are right that lawyers do not do a good enough job of policing ourselves, which may come back to haunt our profession as costs of litigation rise in the digital age. Alternative models and adjustments to the existing litigation system will look better and better as “milking and bilking” lowers the efficiency of the system we have.

  2. I just finished proofreading a chapter in my book that essentially says the same thing about being a plaintiff. As a plaintiff, it is important to view litigation without emotion (although difficult) and rationally, more like managing a business. The case was my case, not my attorneys’ case, and as such it was important for me to make the key decisions.

  3. Craig Ball says:

    Thanks, Ralph, for calling out all those unscrupulous lawyers trying to drum up business by plying poor, weak-willed GCs with golf games, hunting trips and lavish dinners. Fie on those Limo Chasers! 😉

    One point that should be made about contingent fees is that they promote efficiency. Whereas hourly billing attorneys profit mightily from excessive discovery and motion practice, contingent fee lawyers earn less by such empty exercises. Granted, some bad plaintiffs’ lawyers may not understand that; but, every defense lawyer I ever met fully appreciated that more time expended meant more dollars billed.

    It was understood, when I was handling serious injury claims, that defense counsel wouldn’t facilitate settlement of a case *everyone* knew would settle until he or she “got their hours in on the case.”

    Just sayin’

  4. Ralph Losey says:

    Thanks for the comment, Craig. This blog did say the abuses were done by attorneys on both sides of the “v”. It is the character of the attorney that counts, not whether they happen to be representing a plaintiff or defendant.

    By the way, even though I have primarily done defense work in my 33 years of litigation, I have never had the kind of slush fund entertainment that you plaintiff’s counsel like to imagine, as your comment reveals. “James, the Lear Jet please, we have to go bribe another GC!” just doesn’t happen in the real world. Instead, we get constant complaints about the number of hours on a bill and the billable rates, something that contingency lawyers know nothing about.

  5. Dixon Robertson says:

    Thanks for not turning this into “an essay bashing the plaintiffs Bar.” In nearly thirty years of trial practice I have seen far more discovery abuse on the south side of the v than the north. While plaintiffs’ transgressions catch much more ink (digital or soy), I expect the ratio remains the same. It’s a lot easier to abuse discovery when the cost of enforcing compliance remains so high. And ESI has increased those costs exponentially. I can only imagine how successful Jerome Facher would be in today’s environment.

  6. Joshua Rubin says:

    Excellent essay. My most satisfying (even exalting) experiences as a litigator have been working with like-minded opposing counsel. Those counsel are also, without exception, the most effective litigators. I cannot express what a relief it is when I realize that the lawyer across the table is both zealous AND reasonable – a true professional.

  7. Ralph Losey says:

    I agree Joshua, and moreover, I predict that this experience will become more widespread as the Law becomes more and more specialized. It is simple for bona fide e-discovery specialists to work with each other to get even the most complex e-discovery work done. This was my experience in working with the Littler firm and their e-discovery experts as opposing counsel.

    I predict (hope for) ever greater specialization in the law and more expertize in narrower areas, such as e-discovery. Based on my experience, this will be a good thing.

    • Ralph Artigliere says:

      Quote: I predict (hope for) ever greater specialization in the law and more expertize in narrower areas, such as e-discovery. Based on my experience, this will be a good thing.

      Ralph: As the former Chair of the Florida Board of Legal Specialization and Education, I am with you on the value of specialization. However, eDiscovery is omnipresent and an essential part of all modern lawyering. Every lawyer and judge will need to learn e-discovery to be competent, as it will impact every size and type of case. As you have said in the past, e-discovery will subsume (and probably already has subsumed) paper discovery. True trial lawyers who can take a matter to hearing or jury trial must maintain responsibility for the case, even in the giant case. In major document cases, like the ones you consult in, the trial lawyer in charge must know enough about the case and must remain involved in and control the direction of discovery efforts for the specialists to do their job right. Nothing is 100% delegable in a litigated matter. As a trial lawyer, I knew my entire case while my experts knew their part of the case. I had to know the whole thing, including what they were doing. As eDiscovery marches into cases of every size and type in state court, most cases cannot afford consultants and lawyers will be on their own and must possess sufficient skill to handle what eDiscovery needs to be done. In Florida, we have ethical opinions stating lawyers must learn enough about technology to be competent for matters they take on. That is why I admire your personal efforts to share your understanding and knowledge of eDiscovery as an educator. Litigators and eDiscovery experts talking to each other is good. Honing skills as a specialist is good. But everyone needs to be let in on the game to a certain extent. I know you know this, Ralph. But I feel it has to be repeated as much as possible.

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