As a self confessed trusts-and-estates “law geek”, I obviously believe courts (and thus litigants) are guided by the rule of law. But I’ve also been around long enough to have a healthy respect for the “legal realism” school of thought: all law is made by human beings and, thus, is subject to human foibles, frailties and imperfections.
So thinking about what makes a particular group of human beings (judge, lawyers, clients) involved in a particular case “tick” is just as important as figuring out the law. With that background in mind, I found a recent article by Arthur D. Burger of the New Jersey Law Journal entitled Why Do Lawyers Lie? One Word: Narcissism particularly interesting.
Next time your judge, opposing counsel or one of the clients does something baffling, take a step back and think about that person as a human being who may be under a lot of pressure and is just having a bad day. If the particular person going crazy on you is opposing counsel, consider the following excerpt from the linked-to article:
Richard Ratner, a board-certified psychiatrist since 1973, has many lawyers as patients in his clinical work and also serves as a forensic psychiatrist in bar disciplinary cases and other types of litigation. He says a lot of "psychopathology" takes place in litigation, for a variety of reasons.
First, he notes that lawyers, generally, and litigators, in particular, tend to "have generous helpings of narcissism," which he says can be both good and bad. Narcissistic people, he states, "want to go out of their way to shine and make themselves look terrific." This is a good thing to the extent it motivates them to work hard and be prepared.
The problem, he says, comes when you put such people in the crucible of litigation, which after all is a competition with winners and losers. He says that this competition aspect creates a polarization of issues and, for narcissistic people, places their fragile egos directly onto center stage.
Ratner explains that extremely narcissistic people are so "needy for the affirmation of success," that the idea of losing is seen as unbearable. They will therefore use the psychological defenses of "rationalization" and "denial" to enable themselves to intentionally mislead — and even lie — if they believe that is the only way to win.
Ratner states that as a result of this rationalization and denial, they do not see themselves as having done anything wrong. Instead, they see themselves as justified , because they were acting for a "higher purpose." He explains that the power of rationalization can be enormous. It can even be seen in such horribly extreme examples as when the killing of innocent civilians by terrorists is seen as "heroic."
It is useful to understand this dynamic in our adversaries so we know what we are up against , and see the element of insecurity and desperation driving such behavior. It is also useful, however, to examine ourselves and look for similar symptoms.
None of us likes to lose, and nearly all of us, at times, get carried away in litigation by a certain "bunker mentality," through which we see our side as "good" and the other side as "bad." Ratner says that it’s important to take one’s own temperature during the course of a contentious case to assess whether you have maintained perspective. One good way to do this, he says, is to discuss the case with a colleague or at least to take time to calmly review the record and look at the facts.
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Being aware of Ratner’s observations provides a tool for us to periodically look at ourselves, which should work to our benefit by allowing us to avoid court sanctions, see the strengths of an opponent’s case or simply avoid looking silly.
Our clients want us to fight hard — and to win. But we can do that best if we keep our wits and see reality. If that requires putting our egos in check, so be it. After all, it’s doctor’s orders.