What do you think a plastic surgeons reputation would be, if they produced extreme results such as those pictured? It must be conceded, patients expectations and requests may govern a plastic surgeons work (if they allow it), where some clients may want regular frequent/extreme Botox, Restylane injections (for lips), you could say, a more ‘exaggerated’ result, significantly altering their natural features. Alternatively other patients want to enhance or improve their natural features and request understated facelifts, eyebrow and eyelid lifts, Botox and Restylane etc. Does a plastic surgeon have to perform the extreme requests of some patients….they are following their patients requests? Whats this got to do with family law and representing family law clients to achieve the best results?
No doubt you will see a sharp increase in the number of clients in the New Year, as ‘loved one’s‘ have spent increased time together over the Christmas /New Year period, which may make stronger families stronger, however, if there were already relationship cracks, the added pressure may create chasms in relationships, where emotions may be ‘exaggerated‘ and unresolved issues come to the fore, creating irreconcilable differences. The result; relationship breakdown. Alternatively, clients may have decided to break up prior to Christmas but don’t want to upset their families and go through the ‘festive season‘ together (especially when children are involved). Whatever the circumstance, clients are seeking your family law expertise now, possibly wanting to initiate divorce/children/property proceedings.
You no doubt, assess your clients case and then discuss with your client what you consider to be the best dispute resolution method (court, arbitration, mediation, negotiation or a combination of methods). Which ever method is initially chosen, advocacy, whether written (in pleadings) or oral (court, arbitration or possibly mediation) will be required. Is exaggeration or hyperbole a trusted method of persuasion in advocacy…… to benefit your client?
Exaggeration / Hyperbole?
What does this mean in practice:
- over emphatic phrasing
- extreme framing
- exaggerated descriptions and tone
Does Exaggeration Work?
As Brendan Kenny writes in The Lawyerist, “If you exaggerate the strength of your client’s case in your mind, you will naturally do the same in your written and oral advocacy. Because your tone doesn’t fit the case that the judge [decision maker] is learning about, they will soon start doubting your honesty, sincerity, and competence.”
We know some, if not most clients like to see a ‘show‘ particularly when it comes to oral advocacy in court, and they love to see their lawyers giving the other side a ‘hammering‘ in the strongest possible terms. I agree with the persuasive litigator ” it is generally best to avoid techniques that are more satisfying than effective. The hyperbole won’t add substance to arguments (written or oral) and won’t make it more appealing to a neutral or skeptical judge/arbitrator. As Thomas Crane writes in the San Antonio Employment Law Blog, “The words we use may provide temporary satisfaction, but they may well lead to long-term pain.”
If you choose to write or orate using hyperbolic expressions over direct and descriptive expressions, it will likely worsen your case.
Whats the Alternative?
“Understatement is a powerful weapon,” Brendan Kenny writes. “Judges probably expect you to exaggerate. So, defy expectations and strengthen your position by understating it. If nothing else, at least you’ll scare your opponent.” Persuasion means more than just presentation of facts, it means participation by an audience (i.e. judge/arbitrator/jury etc). When an audience understands the message to be understated, they participate by adjusting it upward. When they see hyperbole, they respond by dialing it down. So the bottom-line choice between understatement and hyperbole is this: Do you want the audience’s participation to be working for you or against you?
How To Get the Finder of Fact/Judge/Arbitrator (etc) To Work With You?
- Don’t extend your argument even a millimetre beyond what you can credibly support.
- Lay out the information that allows your audience to reach their own conclusions, instead of ramming those conclusions down their throats.
- Choose the direct and economical expression over the prose of adjective-filled arguments.
- Whenever you can safely violate expectations by being more reasonable and less extreme than your audience would expect, take that route.
Conclusion
Lawyers can easily get caught up in the emotions and stories of their family law clients and become ‘enmeshed” with their stories and emotions, as if the dispute was their own. This is not said to diminish the need to be empathetic with clients during their difficult time, human empathy is essential. However, objectivity, reasonableness, understatement and professional distance can have a twofold benefit:
- allows lawyers to advise and represent clients in the most effective manner and
- allows lawyers to have meaningful communication with their opponents.
As lawyers who professionally and objectively advise, advocate and represent clients, its assumed they want to act and represent clients in a civil, professional, persuasive, reasonable and credible manner to achieve the best results, as well as maintain a highly regarded professional reputation. If this is so, lawyers may need to reflect upon their ‘style’:
- do you need to dial back exaggerated impulses, even in advocacy,( i.e. pleadings and/or orally), and only advocate in a direct and economical way that can be credibly supported?
Reasonable, understated, yet firm advocacy, will supercharge a lawyer’s credibility (honesty, persuasiveness and competence) not only with clients, also with the bench and other practitioners.
Its a personal preference, but I think natural, understated plastic surgery results are much more attractive and achieve much more than the exaggerated, unnatural result …….In my view, its the same with advocacy. Understated advocacy doesn’t mean being a “pushover advocate‘, rather an effective persuader who stands firm when necessary, basing advocacy upon honesty, competence, directness & reasonableness.
Plastic surgeons can refuse to perform extreme plastic surgery / procedures on patients (if the results are not in the patients best interests or they think it goes against the drs ‘brand’ i.e. I don’t want patients going around saying I did “THAT”) :-) ). However, they may choose to perform ‘exaggerated‘ surgery/procedures if they are worried the patient may go elsewhere. The questions is raised: At what cost to their credibility?
Lawyers may have the same conundrum. Lawyers may have clients requesting exaggerated advocacy (written or oral). Are you obliged to exaggerate? Are you worried the client will go elsewhere if you don’t amp up the ‘battle lines‘ ? Clients will be drawn to whatever style YOU choose. Whatever style you choose will either supercharge or diminish your professional credibility.
If you want to supercharge your legal credibility, base advocacy (oral and written) on persuasion, honesty, reasonableness, directness and sincerity. Lawyers are not a clients mouthpiece and a required to make professional judgements, not only for their clients but also for their own professional best interests.
Just click here and sign up to my family law blog and you’ll receive a copy directly into your inbox. There is no obligation and it’s risk free. The blog covers diverse topics in family law, which will assist your family law practice.
I invite you to have a coffee meeting with me, to assess how I may assist you and your clients, without obligation. Don’t hesitate to call me on (02) 9336 5399 or email me at louise.mathias@sydneybarrister.net.au
NOTE: Parts of this blog (in italics) are from the Persuasive Litigator “Avoid Hyperbole” by Dr. Ken Broda-Bahm