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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. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  2. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  3. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

  4. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  5. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

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