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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. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  2. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  3. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

  4. Mazel Tov to the newlyweds. And to those bakers, photographers, printers, clerks, judges and others who will lose careers and social standing for not saluting the New World (Dis)Order, we can all direct our Two Minutes of Hate as Big Brother asks of us. Progress! Onward!

  5. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

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