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DTCI: Perception and psychology shape interactions

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DTCI-Tyra-Kevin.jpgMy friend, colleague, sometime-adversary and fellow DTCI board member, Phil Kalamaros, recently wrote a thought-provoking column regarding civility (Indiana Lawyer, May 8, 2013). As I understood Phil’s point, as much as “civility” is a worthy goal, the more important goal is for all of us to avoid the kinds of egregious behaviors that may provoke an “uncivil” response.

I’d like to take Phil’s column a step further and consider how perception and psychology shape interactions in general, and interactions among adverse lawyers in particular. An op-ed piece in the New York Times by Harvard psychology professor Daniel Gilbert, “He Who Cast the First Stone Probably Didn’t” (nytimes.com, July 24, 2006), is very enlightening in this regard.

Gilbert explained two principles of human interaction leading to conflict. First, people tend to focus on the consequences of another person’s negative behavior, but when they themselves behave badly, they focus only on their reasons for behaving that way. That is “[f]irst, because our senses point outward, we can observe other people’s actions, but not our own. Second, because mental life is a private affair, we can observe our own thoughts but not the thoughts of others.”

As a result, it is human nature for a person to disregard why the other person engaged in certain behavior, and only consider the negative effect of that behavior. Meanwhile, that same person will focus more on why he engaged in certain behavior (typically along the lines of “Well, he started it!”) more than the effect his behavior will have on others.

Gilbert described a study in which volunteers played the roles of world leaders debating whether to initiate a nuclear strike. When later shown transcripts of his own statements, the participant naturally remembered what had led him to say them, but when shown transcripts of the other person’s statements, the participant naturally remembered how he himself responded to them.

Gilbert’s second principle was that the retaliating person tends to escalate the retaliation while believing the retaliation is proportionate to the provocation.

A study demonstrating this second principle hooked up pairs of volunteers to a machine that allowed each of them to exert pressure on the other volunteer’s fingers. The researcher began by exerting pressure on the first volunteer’s finger, then asked the first volunteer to exert the same amount of pressure on the second volunteer. The researcher then asked the second volunteer to exert on the first volunteer’s finger the same amount of pressure he had just experienced.

Although each volunteer made a good-faith effort to apply equal pressure, the pressure each volunteer exerted was consistently 40 percent greater than the pressure the volunteer had just experienced. Gilbert described this as “a neurological quirk that causes the pain we receive to seem more painful than the pain we produce, so we usually give more pain than we have received.”

He concludes that “[t]his leads to the escalation of mutual harm, to the illusion that others are solely responsible for it and to the belief that our actions are justifiable responses to theirs.”

So how can we apply these lessons to how we interact with others, and how we might live up to our obligation to be civil lawyers?

Under the professor’s analysis, we have to admit that civility is a matter of swimming upstream against human nature. It requires an understanding of our own natures as well as that of others. Simply resolving to be “civil” is not enough if we do not recognize these “neurological quirks.”

I therefore suggest that whenever any of us encounters behavior by an opponent we find upsetting and even offensive, we should attempt to do two things that perhaps do not come naturally.

First, take a minute to try to understand why your opponent engaged in this behavior. Was there some provocation or some other explanation (whether it truly justifies the behavior) that puts the behavior in a more reasonable perspective, and therefore perhaps less offensive? Certainly, the end result of your analysis may be that there is no justification at all, and your opponent is simply a jerk. But you may be surprised at the number of instances in which the behavior does not seem so bad after you engaged in this exercise.

Second, take another minute to consider the effect and proportionality of your response to your opponent’s behavior, and indeed whether you should respond at all. Just as you may still conclude from the first analysis that your opponent’s behavior was that of an inexcusable jerk, it is also possible you may conclude in this analysis that your opponent’s behavior was so outrageous that it requires a pointed response, especially if your opponent’s behavior prejudices your case. But, again, you may be surprised at the number of instances in which you consciously temper your response and thereby advance the cause of civility.•

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Kevin C. Tyra is a director of the Defense Trial Counsel of Indiana and the principal of The Tyra Law Firm P.C. in Indianapolis. The opinions expressed in this article are those of the author.

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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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