Affirmative Advocacy
Despite the arrival (mostly) of Spring, and the decline (mostly) of fear about COVID19 contagion, I am, professionally speaking, more easily irritated, bugged, exasperated, inflamed, and ticked off, than ever before, by the correspondence I receive from fellow attorneys, who I experience as trying to pick a fight with me. After noticing my increasingly allergic response while opening my emails, I thought I would share three (3) communication principles that I use to muzzle my own irritable spirit.
1. Please and Thank you
Religiously. Even when we hate each other. Let’s just force ourselves, no matter what. Better to fake it and behave properly as role models to our clients. Please and thank you, or, as one renowned attorney once gently chastised my law firm, if you can’t control how you are expressing yourself, just put the letter in the drawer (or save it in a ‘drafts” subfolder on your laptop), at least overnight.
2. “Free” phrases
How many of these phrases can you think of, phrases which cost nothing in the substantive battle, but dilute the smell of napalm in the air? Using these phrases to soften the presentation of the concern or the allegation will make correspondence more civil, while taking nothing away from strategy at trial:
It is my understanding…
My client reports….
It is my hope that ….
Please work with me to ….
I look forward to receiving from you..
I look forward to hearing from you….
Or asking a question, even if you think you know the answer? Such as:
Would you agree?
Have you heard the same, or different?
Can you let me know?
(Please, Reader, share your favorite examples with me!)
3. The Power of the Affirmative:
I have several of Artist Jim Benton’s “Happy Bunny” magnets on my refrigerator. My favorite says “Please put all criticism in the form of a compliment.” And I mean it, really I do. Criticism does not inspire my best efforts. No one does better when criticized. We’ve heard so much about how judges want lawyers to be more civil to each other; isn’t that clear guidance to put all criticism in the form of a compliment?
It becomes especially important to reframe negatives into positives when attorneys adopt their clients’ versions of events as gospel. As tempting as it may be to throw the weight of our personal and professional support behind our clients, once we step into it, this particular kind of advocacy turns the expression of a concern into a battle cry.
A recent example:
“PARENT is apparently suggesting that they go to XXXX. Not only is this an inappropriate venue for a child of CHILD’s age but nothing had been discussed with GUARDIAN prior to CHILD being asked. If PARENT would like to take CHILD for a SPECIAL OCCASION, PARENT needs to discuss with GUARDIAN prior to involving CHILD.”
My teeth are set on edge just reading this. (See how irritable I am?) I have no idea what the parent did, or did not, say, or do. I wasn’t there. Neither was the other attorney. Maybe the parent behaved completely inappropriately. However, my response will need to dismantle the autopilot adoption of the Guardian’s story as gospel, and sidestep the provocation of Guardian’s attempt to undermine Parent, before we can even address how to help all parties figure out a good plan for a celebration for a child.
A rewrite, flipping the negative into affirmative, might look something like this:
“It is my understanding that PARENT may have had a conversation with CHILD about CHILD’S upcoming birthday. If PARENT could please communicate with GUARDIAN at the earliest opportunity about a special birthday activity, that would be helpful. I understand that one idea that may have come up was XXX, which would not be GUARDIAN’S first choice, due to concerns about safety given CHILD’S age, but GUARDIAN is happy to discuss other ideas and come to an agreement, prior to potential further mention in CHILD’S presence.”
The problems have still been identified, but they are referenced indirectly, as context for the solution being sought. The point is a child’s birthday, not a parent’s misstep, nor a guardian’s desire to attack the parent, nor the attorney’s desire to “win” an interaction. Working the Power of the Affirmative over each component can turn a verbal knife thrust into possible common ground.
Please put all criticisms in the form of a compliment. And please ask others around you to do the same, for you and for everyone else around. Thank you, Jim Benton and Happy Bunny, for helping me try to communicate in a more civil way. It is my hope that we will all enjoy a lot more progress, or at least peacefulness, if we can pull this off, would you agree?
