The Role of EMOTION in Your Real Estate Dispute
Emotion is complex. It is also instinctive, biological and neurophysiological. Emotion is a natural state of mind or mood that derives from a variety of internal and external factors. In short, Emotion is very real and very Human.
Litigation, on the other is a man-made and relatively modern concept. Resolution of differences through lawsuits and the court system is, perhaps, the exact opposite of how animals (and for that matter ancient man) settle differences. They rely on force and violence.
I frequently tell clients that by invoking the litigation process, they have selected one of many available forums for dispute resolution. There’s always the possibility of flipping a coin, meeting your adversary in the streets at noon for a gunfight, carrying out an Affair of Honor duel, inciting a decades-long feud or selecting a (really large) champion to fight by proxy.
I say this for two reasons:
- First, to ensure that the client understands that, although not perfect, our legal system is the most prudent, orderly and legitimate process to resolve conflict; and
- Second, to inject a degree of levity in acknowledgment that our adversarial legal system is stressful to its participants.
CAN LITIGATION BE EMOTION-FREE?
To be completely candid, I (at least on a superficial level) am opposed to emotion in the cases I handle. I wish emotion wasn’t part of the equation.
In a perfect world, legal strategy would be based entirely upon “reason.” I refer to decisions made on considered thought and untainted reason as “business decisions.” This includes the Plaintiff’s decision about whether to file a lawsuit in the first place, and the Defendant’s determination of whether to settle or defend.
I find personal comfort in pretending that the law is a value-free enterprise that may be practiced upon reason, alone. In such a world decisions are logical, and emotion is an enemy of wise choices.
More than 20 years of practice as real estate attorney in San Antonio has revealed that purely reason-based decision-making doesn’t exist. This world cannot be found in the law or any other circumstance involving humans.
In fact, the law is full of value judgments. Laws are written to comply with societal morals and values. These laws, themselves, frequently are borne of widespread emotion. A perfect example is the law that resulted in the creation of the Amber Alert. Similarly, David’s Law originated in San Antonio and is the product of community outrage (an emotion) over a teen suicide following cyberbullying.
Additionally, lawsuits often have highly emotional subject matter. Part of what I love about being a real estate lawyer is having my finger on the pulse of Texans’ passionate love affairs with their land. I could write a book about the emotions that have surrounded some of my more memorable real estate cases.
Most importantly, emotions are rampant among all “players” in the legal system. Litigants, lawyers, jurors, judges, law enforcement officers and court staff are all human beings. As a result, they naturally experience emotion. Despite the facade of impartiality, the people that form the legal structure are hardly automatons practicing reason and devoid of bias, prejudice and emotion.
Finally, I must admit that I experience strong emotions in every case I handle. Empathy for my clients, frustration with opposing counsel, anger with opposing parties, exasperation at the slow progress of the court system, worry about the case outcome, and stress at being overwhelmed are some of the emotions I commonly experience.
All of this leads to one undeniable conclusion: Emotion can’t be turned off or willed away, and is possible to ignore. For that reason, emotion can never be eliminated from a legal dispute.
Emotion can, however, be controlled and channeled for positive purposes. In order to make the most of your experience with the legal system, you must learn to do exactly that.
UNCONTROLLED EMOTION IS COUNTER-PRODUCTIVE IN LAWSUITS
Properly harnessed emotion can be a valuable tool in any high stakes circumstance, including a legal dispute. Conversely, uncontrolled emotion and purely emotional decision-making can be disastrous in a legal setting.
In my experience, emotion without rationale leads to chaos, acrimony, increased stress, and extended duration of the proceeding. None of this benefits the client.
Not surprisingly, certain emotional factors such as anger, rage, an unrealistic sense of “justice,” and retributive intent frequently result in substantially higher legal expense. This occurs because those particular emotions tend to produce a higher frequency of trials and increased number of court hearings.
CLIENTS DRIVEN BY PURE EMOTION CAN NEGATIVELY IMPACT ATTORNEYS
A client whose decisions are purely (or even predominantly) emotional can also make the legal matter more challenging for the attorney.
I love cases that are intellectually challenging, or whose facts challenge me to sharpen my skills of persuasion. However, I derive no pleasure at all from cases whose challenging character results from client-driven acrimony, uncertainty based on client mood swings, or incongruent and reactionary strategy.
Some lawyers use the emotion of their prospective or existing clients to enrich themselves. They stoke fear, encourage rancor among the parties, and promote protracted litigation. These emotions can result in fat fees for lawyers.
By nature, I tend to be solution-oriented. I insist that my clients make informed decisions about the risks, costs, timing, and stress of litigation before pursuing bare knuckled legal brawls.
That’s not to say that I’m unwilling to very aggressively litigate your real estate case. It simply means that I’m not going to do so until I’m confident that you understand the pros and cons of legal warfare, and are making an informed decision about what you’re getting into.
NOT ALL DECISIONS TO ENGAGE IN LEGAL BATTLES ARE GROUNDED IN EMOTION
I have been fortunate in my career to represent clients in what they consider Impact Litigation. Those clients believed and intended that their cases could “make law” to advance cherished causes or otherwise benefit society.
Other of my clients operate in the highly competitive real estate industry and are concerned about their “reputations” for responding to certain classes of disputes.
A third group can best be described as having decided to teach a particular adversary “a lesson” (or “make an example”) in order to deter future litigation.
Finally, there are those cases where a party has been aggrieved, but the responsible party will not accept responsibility or take action to voluntarily resolve the dispute.
These are all legitimate, non-emotional reasons to become embroiled in litigation. Importantly, in each of these circumstances the client makes a reasoned “business decision” to fight the fight.
They understand the process being invoked and decided to participate upon reasoned consideration. This is the opposite of a rash, emotion-fueled decision to engage in a legal battle.
HOW MANAGING EMOTIONS HELPS IN YOUR LAWSUIT
I have found that rational decision making upon managed emotions leads to:
- Better legal outcomes for the client;
- Greater client satisfaction;
- Managed and predictable legal expense;
- Preserved ability to engage in dialogue with the opposing party while the case is pending;
- Decreased client stress; and
- Professional reward for the lawyer.
Put simply, managing emotions makes the legal process more pleasant and less threatening.
Keep this in mind if you are facing a legal challenge and struggling with the emotional toll it is taking on you.