Crucial Conversations…how can lawyers agree rather than argue?
Lawyers are trained from the very beginning of law school to argue why they are right and someone else is wrong.
It is a fundamental skill of the job to use logic and language to outwit and overcome the arguments of someone else.
As such it is often inherently adversarial. In order to succeed you have to be dogmatic in putting forward the best position of your clients.
Take a look at the directories and the best lawyers (particularly litigators) are often described as being ‘fierce’ ‘combative’ ‘tenacious’ ‘uncompromising’ and ‘aggressive’.
Canine references to certain lawyers being ‘Rottweilers’ or ‘Pitbulls’ are oddly popular.
In other words, the talent of a lawyer is often judged by their ability to relentlessly advocate for one particular view of the world.
When I was in private practice I often thought that one of the issues with litigation as a job is that being adversarial and combative can bleed into the rest of your life.
If you wake up and check your emails and the first thing you read in the morning is a 14 point email from the opposing side’s lawyers explaining why everything you have done is wrong and then you spend the rest of the day drafting an equally scathing rebuttal back explaining why they have actually entirely misunderstood the case: it takes its toll.
If you spend your days identifying fault, focusing on detail, constructing arguments and seeking to outmanoeuvre someone else the danger is that you take those habits of thought into your other professional and personal relationships. While those traits may make you a very effective lawyer they are generally unhelpful in almost any other personal interaction – including being a good colleague.
I remember being in countless meetings in private practice when we would be discussing something as a team and the mindset I would take into the meeting was: I need to defend my position, I need to justify my approach as being right (regardless of what the actual correct answer was).
Because lawyers are judged by their attention to detail and accuracy, but are also are in the habit of not conceding points made which threaten their work product, it can create a culture where even amongst your own team you are reluctant to have an open conversation about the merits of a particular point if that would involve accepting that you are ‘wrong’ or that someone else’s approach is obviously better.
The mindset when going into what is supposed to be a genuinely collaborate dialogue can be: if my approach is seen too many times to be publicly wrong that will threaten my standing as a good lawyer.
I remember a number of meetings where a partner or senior associate would start a discussion by making a particular point which during the course of the meeting would be proved to be quite obviously not the right approach. However, because of this inherent caution about appearing to be ‘wrong’ everyone in the meeting would then have to go through the most elaborate verbal gymnastics to try and move to the right approach but couching it in terms which didn’t threaten the original incorrect premise.
In the worst cases you can end up drafting something afterwards which nods to one person’s incorrect view of the world, but actually does something entirely different in substance.
It is a version of the sunk cost fallacy: because some obvious personal capital has been sunk into the wrong view you can’t entirely get rid of it.
Perhaps the most well-known and widely used book on the skill of having honest open dialogue is Crucial Conversations: tools for talking when stakes are high. Many lawyers would benefit from its lessons.
What is our default position in many of these conversations?
The authors define a ‘Crucial Conversation’ as any discussion where i) stakes are high; ii) opinions vary and iii) emotions run strong.
In a law firm this could range from a departmental meeting discussing internal issues, a key call amongst the matter team to discuss the strategy of a case/deal, an individual performance review or simply a discussion between two people who are trying to work through a disagreement.
In any of these scenarios the authors suggest that our default approach to these types of conversations can often be wrong.
First, as described above, it is quite common for lawyers in these scenarios to feel that their position or judgment is threatened. In that circumstance, under pressure, our adrenaline naturally rises and we too often revert to fight or flight to defend our position.
Rather than engaging sincerely in the dialogue that’s actually in front of us we revert to silence or violence as a reaction to the perceived threat. In other words, we either deliberately don’t engage in the issue or we try and forcefully express our opinion at all costs (without listening to others) because our mind is focused on the perceived threat not the content of the conversation.
A common response instead of sincerely engaging in dialogue is to look for ways to:
i) win;
ii) punish; or
iii) keep the peace.
Each of these tactics is not motivated by the end goal of the conversation but is often driven by your ego’s desire to come out of the interaction unscathed. In circumstances where someone has challenged our judgment as a lawyer it is all too common to revert to treating colleagues like the other side in a dispute or negotiation. We quibble over details, point out flaws in other people’s arguments or we are so uncomfortable with the conflict that we accept the certainty of a bad result to avoid the discomfort of challenging someone else.
The question is – why do we do this?
One of the central ideas in Crucial Conversations is that when we find ourselves in an emotional or challenging conversation we are too often led by the stories we tell ourselves rather than the facts.
What is the significance of the stories we create?
The authors note that when most people experience a strong emotion in response to something that someone has done or said we usually say to ourselves:
‘X person has said/ done this and that definitely means Y and therefore I am angry/ frustrated/ sad/ insert emotion.’
But in reality there is an important intermediate step in any conversation or interaction because actions or words themselves don’t cause an emotional reaction.
What causes our emotional reaction after we experience a particular thing is the story we tell ourselves about the meaning of that action.
The pathway to people’s response is as follows:
See & Hear + Tell a Story (to ourselves) + Feel + Act
‘Stories provide our rationale for what’s going on. They’re our interpretations of the facts…They’re theories we use to explain why, how and what…Of course as we come up with our stories it isn’t long until our body responds with strong feelings and emotions…Storytelling typically happens blindingly fast. When we believe we are at risk, we tell ourselves a story so quickly that we don’t even know that we are doing it. If you don’t believe this is true, ask yourself whether you always become angry when someone laughs at you. If sometimes you do and sometimes you don’t, then your response isn’t hard wired…In truth, you tell a story.’
An example might be a Partner you work for begins a meeting by complimenting the work of a fellow associate on the team but doesn’t acknowledge the fact that you actually assisted a lot with the same task.
The story you might tell yourself from those facts is: ‘The Partner doesn’t respect me as much as Lucy, he has already picked his favourites and there is nothing I can do, I might as well not try hard on this case because it doesn’t make a difference.’
The action that follows that story in the meeting might be that you don’t contribute to the discussion, you let Lucy and the Partner speak about the main issues in the case and you are visibly annoyed (i.e. you revert to silence).
Which ironically reinforces precisely the view to the Partner that you have created in your story – that Lucy is more proactive and you don’t care.
But what if we challenged the stories we tell ourselves when in these types of situations before believing them and acting on our emotions?
If you make a proactive effort to focus on the facts and less on the story then a different picture can emerge and a better conversation.
An effective way to break the pattern of coming up with unhelpful stories can be to ask yourself the following questions:
Why would a reasonable, rational and decent person do what this person is doing?
Am I pretending not to notice my role in the problem?
What do I really want from this conversation? For me? For others? For the relationship?
What would I do right now if I really wanted those results?
So to apply this to our example the responses to these points might be:
There is actually no reason why the Partner would know that I worked on the task as much as Lucy did behind the scenes and in the past when I have done good work he has actually properly credited me.
Perhaps I am underplaying the fact that I don’t speak up enough in meetings and that is not Lucy or the Partner’s fault but I need to be more vocal;
What I ultimately want is to have a good relationship with the Partner and be a valued member of the team and I am not going to achieve that by being quiet and angry;
If I really want to improve our relationship I should try and contribute more and be honest about the work I have done and see the Partner’s response.
Obviously this habit of thought can be counterintuitive for lawyers who are trained to advocate for their position and view of the world because it requires you to actively entertain a different version of the same events.
However, the key point is that in challenging the stories we tell ourselves when in difficult conversations we allow the opportunity of breaking the loop of falling into silence or violence and instead are able to have more honest and useful conversations.
How to speak persuasively and not abrasively?
So once we have taken the time to challenge our default stories and have diluted any initial emotion led response - how do we actually make honest points in conversation which might be challenging or difficult for someone else to hear?
To use our earlier example if a Partner or someone senior to you has started a meeting by saying something which is incorrect but they clearly feel very strongly about it and, not for the first time , they appear not to want to be challenged on the point – what would be the best way to approach a Crucial Conversation?
The authors propose the following 5 step approach with the acronym STATE:
Share your facts
Tell your story
Ask for others’ paths
Talk tentatively
Encourage testing
Share your facts
Most people when they hear something they don’t like skip past the facts and go to their version of events and the ugly story they have told themself about this scenario.
So in this case if the story you tell yourself is: this Partner doesn’t value our opinion and just always does what he wants regardless without caring, you might express that story either just by reverting to silence or by saying something like:
‘I don’t think that’s right but listen it’s your call and I am clearly not going to change your mind’
The problem with skipping straight to your story is that it immediately puts the conversation on an antagonistic footing and destroys any sense of safety in the conversation to express things neutrally.
As the authors note, often:
‘We’re so anxious to blurt out our unflattering conclusions that we say things in extremely ineffective ways. Then, when we get bad results (and we are going to get bad results), we tell ourselves that we just cant share risky views without creating problems.’
The answer is rather than skipping to your story or version of events, first: share your facts.
Facts should not be controversial and provide a safe beginning. We are not trying to win or punish the other party or keep the peace we are just trying to share initially how we have approached this point.
In this case that might look like telling the Partner in neutral terms the key points of analysis that make up the background to the point you are discussing and why you have reached a different conclusion.
The key is to let others see your experience of the facts calmy and without judgment.
Tell your story
The point of telling your ‘story’ out loud is because you want to have an honest and frank conversation about something that really matters. The story is the conclusion you have reached which you want the other person to know and get their view on – even if it is difficult to express.
So in our example of the Partner who is not open to being challenged, after you have recited the facts, the story might look like this:
‘That’s my view of the facts. But I should say that sometimes, it feels to me at least, that even if I present my views you are not always that interested in hearing them or you have already made up your mind. I appreciate that some decisions just have to be taken quickly but occasionally it can feel that it is not worthwhile me contributing an alternative view, but I would like to discuss it’.
The point is to frame your story not as the truth of the situation but just how you have perceived events based on the facts.
Ask for others’ paths
After you have said your story it is vital to immediately ask for other peoples’ perspectives because the point of the conversation is for it to be a genuine exchange of views rather than just expressing your position, so in this example that might be:
‘Obviously that is only my perspective and I don’t want to appear unhelpful so I’d really like to hear how you think about these calls and whether you see them differently’.
Talk tentatively
The point is to couch your story as only your perspective and to speak in a tentative and non-dogmatic way to encourage people to speak openly without feeling threatened by the issue that has been raised.
Some easy ways to do that are to frame points as follows:
‘I was wondering why…’
‘Perhaps one way of looking at this is…’
‘It seems to me…’
Generally in dialogue the more convinced and forceful you act the more resistant others become. Speaking in absolute terms does not increase your influence, it decreases it.
Obviously this point only applies to issues which are genuinely uncertain or open for discussion rather than feigning a lack of certainty about actual facts (or the law!).
Encourage Testing
The point of a good conversation is to genuinely invite others to test the conclusions you have reached.
‘The only limit to how strongly you can express your opinion is your willingness to be equally vigorous in encouraging others to challenge it.’
In other words it’s good to hear other people’s facts and stories to complete the picture. You might even say ‘What am I missing here? Does someone else see it entirely differently?’
The point is your motive is a genuine exchange of views rather than you being proved right.
This structure wont suit every conversation you have in your legal career but it’s a useful toolkit to have in mind when you want to have a genuine discussion about issues which often people struggle to address well.