Law has been around in one form or another for a couple of thousand years. One would guess that during that time one thing or the other found its way into it that actually works and is really useful, deep and with a lot of practical weight. Unfortunately, with everyday life being as full as it is, we rarely look at law that way. This is one of a loose series of short pieces on items where I believe that the practical knowledge that through the ages has founds its way into the law could be used in an equally practical way to help us navigate our daily professional (and other) lives.
In practically any jurisdiction I am aware of, one general rule for interpreting and assessing the content of both unilateral declarations by persons as well as contracts is to look behind the words and instead explore the parties‘ real intent as expressed in those words and see that as relevant for the legal situation. I’m sure there are all sorts of details further specifying, narrowing, broadening and adjusting this principle, but in general it holds. And it makes sense, doesn’t it? If everybody knows or at least can easily know what I mean with something I say, it appears much more sensible and efficient to look at what I mean instead of the literal meaning of what I actually might have said.
Have you been baffled in a transactional situation, because somebody behaved completely out of whack, in an irrational way and all that totally out of the blue? Someone out of hand rejected a proposal that, when seen in the light of day, couldn’t be refused. A party has dug in at a position that is completely untenable, irrational, even irresponsible, weird or outrageous – and won’t budge. And you don’t have to be a transactional lawyer to experience this type of situation.
Two typical reactions can often been seen. Either, we tend to repeat the reasonable and well thought-through arguments supporting our own position over and over again, elaborate them, explain them in excruciating detail. Mostly, this leads nowhere – the other side will stick to whatever position they occupy, repeat their weird-looking behaviour, continue to be whacky, time and time again. Back to square one. Or we establish equality-of-weapons…and now both sides go on an unreasonable, untenable, impolite or otherwise not too helpful trajectory, exchanging and battling positions and mostly doing their very best to ruin the atmosphere in the room.
One amazing thing about (private) law as we know it today is, that it’s a pretty cool customer. It doesn’t get excited. It stays calm, really calm. It merely ascribes consequences to what parties do and say. No matter how much one screams, hollers, loses one’s temper or is unreasonable…the law (beyond rules protecting personal honour, such as libel laws etc.) only asks „what does that actually mean“? How, considering all circumstances of the situation and words spoken, should we reasonably ascribe meaning to what has been said? And then it says what has to happen.
Imagine we did just that. Not react. Not bark back. Or take insult because our super-good offer has stupidly been rejected and our absolutely ingenious idea for solving the issue that we worked on for some hours was refused to be even taken into consideration. Or be grumpy because that’s just not the way we like to be talked to.
Imaging we simply looked at the entire situation. Took all we know about the people acting, their situation, their background and environment. The pressures they’re under and conflicts they have to navigate. Things that would actually really help them – or hurt them, whether personally, professionally, within their organisation, outside of it or in any other capacity. And if we then looked, if we can make some more sense of what just happened. Whether we can see behind the words and actions and find the actual meaning and importance of the situation.
That doesn’t mean we should give in or all hold hands and sing kumbayah. It might actually require us to be even clearer in our answer, more decisive in putting a foot down, it might even make the content of our response more drastic or contrasting. But it allows us to respond to the actual situation and the actual interests at play. To adjust our own actions to what’s really going on, not a superficial appearance – however tempting it might be to just shout back. And yes, I’m also far from putting that into practice all the time. But whenever I manage to do, the outcome tends to be shockingly better.
If you’re into the theory and/or literature on negotiating, you might say…“wait a minute, that sounds familiar!“. And you should – the second principle of the framework proposed by the famed Harvard Negotiation Project as formulated by Fisher & Ury in their „Getting to Yes“ – at least from my point of view – is nothing but one way to capture this age-old principle. A principle that we jurists hear about usually in our first year of studying law. But mostly without us realising, what gem is being handed to us.
My point here is not so much that looking at what’s really going on underneath the surface in a talking, negotiating or similar situation is such a revolutionary idea. It simply isn’t. Also, trying to really understand what’s driving other persons involved, to get deeply into their shoes, get what it is that’s moving or motivating them and what could be behind the games they seem to be playing is not woo-woo or soft. Not reacting immediately, but going a level deeper is not about being nice. Rather, even from a very much professional perspective it’s a very sensible thing to do. And it’s good for blood pressure and cortisol levels, too.
As lawyers, we tend to focus on being right, on winning the argument and having the last word. Whether or when that might be a good or bad thing is a different discussion altogether. But even on the face of it, it’s actually a bit difficult to know if we’re right, if we don’t even know, what exactly we’re talking about. Or, even if we’re right, whether we’re right on the right thing and whether that thing is relevant in the situation. And this brings us back to the point here.
For us lawyers, this sort of empathy (since that’s what we are talking about here) should be a bit easier than for others. We should be well positioned to spot those things underneath or behind behaviour. After all, that’s what the law tells us is the thing to do if we really want to understand what’s being said and what of what’s being said is relevant. That’s what we have been trained to do. And since this bit has been around the law for a while, chances are it actually works.