Posted Jun 02, 2014 01:30 pm CDT
For some clients, it seems like no matter what facts you present them with, you just can’t make them see the reality of their situation. They want to battle every step of the way to “have their day in court,” even when it’s not in their best interest.
ABA Journal reporter Stephanie Francis Ward speaks with Bill Eddy, an attorney, mediator and author of books including High Conflict People in Legal Disputes. He shares tips on what you can do to try to reach high-conflict clients—and how to tell them things they do not want to hear in a way that makes them listen.
In This Podcast:
William A. "Bill" Eddy, a family law attorney, has written various books about dealing with people, including High Conflict People in Legal Disputes, Managing High Conflict People in Court and It's All Your Fault: 12 Tips for Managing People Who Blame Others for Everything. He is also the founder of High Conflict Institute in San Diego.
Stephanie Francis Ward: For some clients, it seems like no matter what facts you present them with, you just can’t make them see the reality of their situation.
Bill Eddy: And I think that’s a mistake that most of us, as lawyers, made early on with difficult clients. We would fight with them about their reality. And instead, I try to connect with their reality; empathize with them; and then educate them.
Stephanie Francis Ward: I’m Stephanie France Ward, and today I’m speaking with Bill Eddy, a family law attorney who is also a licensed clinical social worker. He also wrote various books about dealing with high-conflict people in litigation. When we return, he’s going to share tips on what you CAN do to try to reach high-conflict clients, and how to tell them things they do not want to hear–in a way that makes them listen.
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Stephanie Francis Ward: Let’s say your client is asking for something really unreasonable which would hurt their case more than help it. And they ask you repeatedly; and you’ve told them repeatedly, “This isn’t a good idea; This is why…” How should you handle that?
Bill Eddy: Well, I have a basic strategy which—let me describe, briefly, the strategy, and then that will help in answering all of these questions. And that is: First to try to connect with the client’s experience and what’s going on for them.
So, I’ll say, “You know, I can understand that you would be wanting to do that approach, and I know how important this case is to you, and I know that you’re really worried about how it’s going to turn out. So, I just want you to know, I understand that. Now, for your information, you may not realize it, but actually, if we were to do what you’re asking for—and I’ve had that situation and seen that before—it really backfires on us. And so, I’m going to really recommend against that.”
Or I may even have to say, “I can’t do that. If you really want to take that approach, you’ll have to choose another lawyer. But mostly, I really want to help you. And what I find is really helpful is for me to explain how this works, and why what you’re asking for tends to backfire. So, do you want to know a little bit more about what the issues are involved in this?”
And then the person will say, “No, I don’t. You have to do this. Why aren’t you doing this?” Or, they may say, “Well, I guess…”
But if they push back and say, “No. No. This is really important. I really want to do this. I know all the other lawyers do this. I know the judges consider this…” and all that, I’ll say, “Well, you know… it’s just not one of the options with my style of working. I just don’t take that approach. I learned years ago that that approach isn’t’ really effective. It embarrasses you in court; it embarrasses me in court, and it doesn’t get you what you want. So, do you want to look at some other alternatives now, or do you want to take some time to think about it?”
So, that’s generally how I try to answer. I try to connect with them, and then educate them, and emphasize they have choices, but there are consequences to the choices. And some of them, I know, are not good consequences for them, and I just want to help them.
Stephanie Francis Ward: What are your thoughts on delivering bad news that a client really doesn’t want to hear? I think a good example might be, as often times it seems like the clients always thinks the other side has more money than he or she actually does.
Bill Eddy: Right.
Stephanie Francis Ward: But some people refuse to accept it. They’re like, “No. I know they have more money. They’re hiding it somewhere.” And you’re like, “No. Don’t think they do.”
Bill Eddy: Yeah.
Stephanie Francis Ward: For that bad news that someone just really doesn’t want to accept, that their case is not going to get them money they dreamed that it would. How do you deliver that, and get them to accept it, and move on?
Bill Eddy: It’s a very common scenario. I would use a similar strategy. So, I’d try to say, “Well, I know how disappointing it is to find out that all that money that you though they had earned was actually spent—during the marriage or in the course of the business—whatever it was. And, I know it’s hard to accept that. And, it used to be hard for me to accept that. I was sure, ‘I’m going to find this, and it’s there, and there’s a mother-load that’s going to really be terrific.’
“But my experience says that sometimes it really turns out like this. It can be quite disappointing. So, you’re telling me that you’re sure that there’s money there. And what I’m telling you is: We have no indication of that. So, let’s look at what our options are now; how I can help you with the information we do have to try to get the best arrangement possible. But, realizing that this isn’t going to be one of the sources of funds.
“It is disappointing. I really understand. I can see that. And I know it’s hard to accept, but generally, over time, things get clearer and you will probably come to realize what I’ve learned to realize over the years. Which is there often just isn’t the money there that we thought there was, or it’s not there any more, or another possibility is that it’s really well-hidden.
“You could spend $10,000 on more discovery to try to find this, and end up not finding it. If you tell me that your business partner, or your former spouse is really manipulative, and hides money, and things like that—if that’s true, they may be so good at it that we’re just never going to get it. On the other hand, it just may not be there, and that’s disappointing. And I can understand that. So let’s focus on what we can do now.”
Stephanie Francis Ward: I’m thinking that second part you said that—“maybe you’re right and they are hiding money, but they’re so good at it, you’re not going to get it”—that must be really hard. It’s one thing if the money is just not there. But it’s another thing if it’s like, “Yeah, you’re right. They won on this one.”
Bill Eddy: Yeah. And, I have a lot of clients that say that. They say—because, I primarily have a divorce practice. Although I’ve worked with business cases, personal injury—especially doing mediation—and this comes up all the time. Let’s say I meet with one party in a mediation; I mostly meet with them together, but I meet alone—and they insist this is possible. And what I find is it’s better not to deny their reality.
You know, “You might be right, but there’s nothing we can do short of spending a fortune to try to find this, and it may not be able to be found. Some people are really, really clever. And so, you have to choose your battles.”
Stephanie Francis Ward: Do you think maybe a common trait of clients who tend to be unreasonable and don’t listen is that many feel that need to be heard. And they want their side of—they want their day in court; they want to have a chance to tell the judge their side of the story?
Bill Eddy: Yes. And that is one of the characteristics of people who I believe have what I call “high-conflict personalities.” They’re kind of stuck in seeing everything adversarially; and on the other hand, they think that all they have to do is be able to talk to the decision-maker; the decision-maker will have a light bulb moment, and agree that, ‘I’m totally right and the other side is totally evil’. And so what happens is, they really push for that opportunity.
So again, I empathize with their concern that if the judge would just hear you, that that could make a world of difference. And I try to educate them. So, there are two steps to my general approach with high-conflict people—or people with a drive to be heard even when it will backfire on them—and that’s connecting with them with empathy, attention, respect, respecting their concerns, paying attention. I listen. But then educating them about the realities. We have our day in court.
For example in a criminal case—if you think that it’s going to blow up if your client testifies, and they insist on testifying—emphasizing, “I’ve seen this before. You can hurt yourself more than help yourself. It’s hard to understand that, but as we get closer to trial, you’re going to realize that it really is in your interest to settle this case.”
So, I try to educate them about the realities, rather than fighting with them about it. And I think that’s a mistake that most of us, as lawyers, made early on with difficult clients. We would fight with them about their reality. And instead, I try to connect with their reality; empathize with them; and then educate them. So, I think that’s a big part of it.
Stephanie Francis Ward: Do you think there’s a fine line—when you have a high-conflict client—does it take much for them to cross between a conversation where you’re trying to educate them, and they want to fight?
Bill Eddy: Right. One thing I want to mention is it takes a lot of repetition. So very early in the case, I start saying things like—they’ll say, “I want my day in court.”
And I’ll say, “You may have that. That’s an option. I just want to let you know that 95 percent of cases settle. And that often, you save money; you save time; you avoid some of the stress. And actually, you avoid the downside of going to court; because court has a big downside, if you lose. You could have spent a lot; you could be publicly humiliated; and maybe a judge thinks, or a jury thinks, that you’re really a problem—even though you think it’s the other person.
“So, as we go along: sure, we’ll prepare for trial. We’ll gather information and do our discovery, but we also need to develop negotiation strategies. So I want you to think of proposals that might settle the case to your satisfaction. If we really can’t get a decent settlement—and the courts nowadays require us to make efforts at settlement—so if you’re going to look good in court, you’re going to have to make settlement efforts. So think of what you want, and some proposals, and I’ll give you information to help with that. And we’ll see.”
So from the start of the case is: “You’re right. You might have your day in court, but we have got make these settlement efforts too.”
So, I don’t fight with their goal; I just tell them that the focus is something else. Or, as I said in the first scenario, I may say, “I’m not willing to do such-and-such.”
But they take a lot of repetition. And they don’t always get it.
Stephanie Francis Ward: What if you’ve done that repetition, and you’ve gotten your client to a spot where they’re finally at a reasonable spot, and they come back and say something like, “Well, you know, I was talking to my sister, and she has a friend at her work who has a case like mine, and she said that I should such-and-such…” I mean beside the obvious, I mean you say, “Well is that friend a lawyer?” And I think the client always says, “Well, no…”
Bill Eddy: Right. Right. It’s a beginning because I want to say, “Well, don’t talk to your sister; don’t talk to your neighbor; don’t talk to your mother while we’re going through this case.” But that’s impossible.
So instead, from the early part of the case, I’ll say, “Now you may talk to”—let’s say it’s a child support example. Let’s say you’re talking to the child support payor, and the payor says, “Well, my buddy is paying next to nothing, and you’re saying I’m going to have to pay $1000 per month. I mean, this is absurd.”
And I’d say, “You know, you’re going to hear things. You’re going to hear things that you want to hear. You’re going to have a lot of people around you with a lot of advice. And so, what you have to do is really work with me. As long as you’re working with me—to listen to my advice. All these situations are different. If you tell me what your friend’s income is; what their spouse’s income is; what percent of time they each have with the child—I can run the numbers with my support program.” And I do that with the client right in front of them.
“So you can see why his is that, and yours is different. It may change when your wife gets a job, or if percents of time change, etc. But this is purely a mechanical program, and all the states have that now. So, you’ve got to watch out for listening to your friend; your neighbor; relatives, etc.”
Again, that’s something I have to repeat over and over and over again. And eventually, what happens is clients will say, “Oh, I know. I’m not supposed to listen to them; I’m supposed to listen to you.” And I say, “You got it.”
So a sense of humor can help, too.
Stephanie Francis Ward: And do you think—because I’m just thinking of my conversations of people who I see as being high-conflict—you might just nod your head and say, “Oh, uh-huh. Yes. Um-hum.” And tell them what they want to hear, or just agree with them to get out of the conversation because it’s been going on and on for 40 minutes. Do you tell clients like that, “Well, you know, sometimes your friends—they might just tell you what you want to hear.”
Bill Eddy: I say that a lot. And for example: When I’m doing mediation, and it’s an issue of spousal support—California has spousal support; a lot of states have spousal support. It’s one of the most irritating things to people. The recipient says, “You know, I put all this time into the marriage; they should want to help me out.” And the payor says, “You know, they’re a lazy no-good…, and they need to get to work.”
And so, when I talk to them, I’ll say, “Now, let me predict for you—after we meet today, and you go talk with your separate lawyers, and then we come back—your lawyer is going to tell you: ‘You’re going to get spousal support for life; you’re on easy street now; everything is wonderful.’ And your lawyer is going to tell you: ‘You’ll never have to pay a dime; and you shouldn’t consider any support payment.’
“And let me tell you folks: People tell you what you want to hear—your family; your friends; your relatives and sometimes even your lawyers.”
So the thing is to put these together. One thing I say is, “Could you get your lawyer to put that in writing and bring that to the next mediation session—that they guarantee lifetime support, or that they guarantee ‘not a penny’?”
And I laugh about it because they say, “No, no lawyer is ever going to say that, or do that.”
And so I think it’s predicting reality and—in a friendly way—talking it through. It’s having empathy, attention, respect for them. And then educating them. And over and over again.
Stephanie Francis Ward: It seems to me that it would probably be easier to work with clients once they take some ownership for some other legal issues. Do you have advice as their lawyer on helping them to see that have some ownership in this, as well?
Bill Eddy: It’s again a repetitive process. And that’s one of the hardest things with the high-conflict clients, because part of their thinking is really: “It’s 100 percent other peoples’ responsibility, and zero percent mine. I’m not the cause of the problem, and I shouldn’t have to do any work to solve this problem.”
And as a lawyer, you know you really have to engage your client to work with you on solving the problem, and the more they are engaged in solving the problem, the more they’ll be engaged in carrying out the solution.
And we know high-conflict clients often think adversarially. The court is an adversarial process of conflict resolution. And high-conflict people have an adversarial process in their mind, and they don’t have resolution in their mind. So they fight for what they want with the other person. They don’t get that. They get an attorney to fight for them, or with them. And then the attorney doesn’t perform the way they want, so they fight with their attorney. They fire them, and they get another one. Then the court makes a decision they don’t like, and they fight with the court: motions for reconsideration; appeal, etc.
So it’s really trying to engage them over and over again in participating in it, and understanding that this is not an ‘all or nothing’ thing.
We all have a part in the problem; and we all have a part in the solution. So let’s talk about what we can do. And that’s another thing—to use ‘we’ kind of language with high-conflict clients—so that that they feel that you’re on a team, rather than “it’s you against them” or “them against the other person.” And that seems to calm them a little bit, some of the time.
But all of these strategies take a lot of repetition, and if one doesn’t work you try another. And if you’ve done everything you possibly can, and it still doesn’t work, there are more and more people like that out there. But I think with some of them, you really can manage your relationship with them—to get to a settlement or get to a reasonable court decision.
Stephanie Francis Ward: Should lawyers avoid high-conflict clients, if they’re in the position to do so? Because assuming a lawyer has completely met his or her ethical obligations to tell the client what they should do, and the client is like, “No, I want to do this,” and the client has the ability to pay them by the hour—you might make a lot of money off those clients. So you’ve met your ethical obligation to tell them, and you’re not doing anything untoward.
Bill Eddy: Well, they certainly cause people sleepless nights. And when I give seminars, and I say, “How many people in here—” say it’s 100 lawyers in the room, and I say, “How many of you have ever had a sleepless night over a high-conflict case?” and half of them raise their hand; it’s very common. Now, the other half say, “Well, I’m in an area of law that doesn’t have many of these cases,” or, “I screen these cases out,” or whatever. But they really do cause us a lot of stress.
But there are two problems with the idea of screening them out.
The first problem is they’re often not obvious at the beginning. And in fact, a lot of high-conflict personalities are sugar-coated. They look really good at the beginning. They’re really friendly. They come into your office and say, “I picked you because I hear you’re the best.” And so you’re thinking, “…Hey the word is out: I’m the best.” It’s not a good sign. Because that means their expectations are quite possibly unrealistic.
So, you can’t always tell at the beginning until there’s a crisis, or you really get to know them. And then they often start turning on the lawyer a little bit, and sometimes that grows. The things that they say about other people—they may start saying to you, about you. So one is: You can’t spot them.
The other is: I’ve taught law school courses over the years. And what I realize is if experienced lawyers screen out these cases, they’re going to end up with new lawyers who have one or two years of experience—and let me tell you, they don’t have a clue about how to deal with these folks, unless they of course listen to this program. But they often—
Stephanie Francis Ward: It takes direct experience, I think.
Bill Eddy: Yeah. It’s often experience; and often painful experience. But what I find is that you can teach them how to avoid these folks. But it takes some time. And I want experienced people to manage these cases, so that they’re not going to those new lawyers who often make things worse—and not just for themselves, but for everybody involved in the case, on the other side, etc.
But with that said, I think that a lot of these cases can be managed to settlement or a reasonable court decision. With good techniques and understanding, this approach of working with them, not against them; connecting with empathy, attention, respect; and then educating them about the realities, and doing that over and over and over again.
And the other thing I want to add is, I think they’re increasing. There’s some research that suggests personality disorders are increasing in society, and a lot of these folks have some of those traits. So I think, screening them out—the worst cases, you many be able to do that, but in general, you’re still going to end up with some of these cases.
Stephanie Francis Ward: OK. Thank you so much for your time, I really appreciate it!
Bill Eddy: Sure, my pleasure.
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End of transcript.
Updated on June 5 to add the transcript.