It’s easy to think that only certain kinds of disputes involve the litigants’ emotions. But even disputes supposedly only about money involve emotion. Once you understand that, you will be able to better serve your client.
I was discussing with one of the lawyers at my firm, who handles a lot of employment work, about how frustrated her plaintiff client was at all the resistance the defendant company was showing during the litigation. To the client, it was personal: they had mistreated her to start, and now, in my colleague’s client’s view, they were trying to mistreat her further in the litigation.
Employment is one of those areas of litigation, like matrimonial, and probably landlord-tenant, where it’s easy to assume that the litigants will be driven by emotion. Indeed, the remedies sought in such matters, while almost always involving some amount of money, tend to involve a lot more than just money. More than that, the very disputes are ones where the parties have figuratively or literally lived together and may have developed high emotions towards one another, perhaps for years, before filing a complaint or serving a notice of deposition.
I’ve learned that all litigation is like this. Or, at least, often can be. And to win for our clients, and serve them as counselors, we need to keep this in mind. As a great mediator once put it in a training (when someone asked how many of the business disputes he mediated involved emotion): “I’d say around 99%, but it’s probably a bit higher than that.”
Business litigation, which is what our firm focuses on, is supposedly just about money, or perhaps some intellectual property, or the ability to engage (or not) in some business practice. And as a matter of what you must legally prove or disprove, it is about those things.
But not to the litigants; not to your clients. To your clients, it’s about justice. It’s about what is right, what they earned, and what the other guy did.
How does the litigator factor all this in? The better question is: how does the good litigator NOT factor this in?