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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. The father is a convicted of spousal abuse. 2 restaining orders been put on him, never made any difference the whole time she was there. The time he choked the mother she dropped the baby the police were called. That was the only time he was taken away. The mother was suppose to have been notified when he was released no call was ever made. He made his way back, kicked the door open and terrified the mother. She ran down the hallway and locked herself and the baby in the bathroom called 911. The police came and said there was nothing they could do (the policeman was a old friend from highschool, good ole boy thing).They told her he could burn the place down as long as she wasn't in it.The mother got another resataining order, the judge told her if you were my daughter I would tell you to leave. So she did. He told her "If you ever leave me I will make your life hell, you don't know who your f!@#$%^ with". The fathers other 2 grown children from his 1st exwife havent spoke 1 word to him in almost 15yrs not 1 word.This is what will be a forsure nightmare for this little girl who is in the hands of pillar of the community. Totally corrupt system. Where I come from I would be in jail not only for that but non payment of child support. Unbelievably pitiful...

  2. dsm 5 indicates that a lot of kids with gender dysphoria grow out of it. so is it really a good idea to encourage gender reassignment? Perhaps that should wait for the age of majority. I don't question the compassionate motives of many of the trans-advocates, but I do question their wisdom. Likewise, they should not question the compassion of those whose potty policies differ. too often, any opposition to the official GLBT agenda is instantly denounced as "homophobia" etc.

  3. @ President Snow, like they really read these comments or have the GUTS to show what is the right thing to do. They are just worrying about planning the next retirement party, the others JUST DO NOT CARE about what is right. Its the Good Ol'Boys - they do not care about the rights of the mother or child, they just care about their next vote, which, from what I gather, the mother left the state of Indiana because of the domestic violence that was going on through out the marriage, the father had three restraining orders on him from three different women, but yet, the COA judges sent a strong message, go ahead men put your women in place, do what you have to do, you have our backs... I just wish the REAL truth could be told about this situation... Please pray for this child and mother that God will some how make things right and send a miracle from above.

  4. I hear you.... Us Christians are the minority. The LGBTs groups have more rights than the Christians..... How come when we express our faith openly in public we are prosecuted? This justice system do not want to seem "bias" but yet forgets who have voted them into office.

  5. Perhaps the lady chief justice, or lady appellate court chief judge, or one of the many female federal court judges in Ind could lead this discussion of gender disparity? THINK WITH ME .... any real examples of race or gender bias reported on this ezine? But think about ADA cases ... hmmmm ... could it be that the ISC actually needs to tighten its ADA function instead? Let's ask me or Attorney Straw. And how about religion? Remember it, it used to be right up there with race, and actually more protected than gender. Used to be. Patrick J Buchanan observes: " After World War II, our judicial dictatorship began a purge of public manifestations of the “Christian nation” Harry Truman said we were. In 2009, Barack Obama retorted, “We do not consider ourselves to be a Christian nation.” Secularism had been enthroned as our established religion, with only the most feeble of protests." http://www.wnd.com/2017/02/is-secession-a-solution-to-cultural-war/#q3yVdhxDVMMxiCmy.99 I could link to any of my supreme court filings here, but have done that more than enough. My case is an exclamation mark on what PJB writes. BUT not in ISC, where the progressives obsess on race and gender .... despite a lack of predicate acts in the past decade. Interested in reading more on this subject? Search for "Florida" on this ezine.

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