Equipoise describes the lawyer’s art of balancing opposing interests and states while remaining poised for action. It is often necessary to take time to consider two positions, and the pressure to jump into action prematurely can interfere with a lawyer’s need to mindfully assess the situation. It’s also useful for judges and mediators.
Especially when initially assessing a case with a client, lawyers need to get close to the client and see things from their perspective. Yet, before a course of action is chosen and initiated, a lawyer needs to step back, gain professional distance, and consider the case from other perspectives. Equipoise helps us remember to pause and reflect.
Clients can have strong emotions about a case. When lawyers empathize and connect with clients, they can show the client they care and understand the client’s feelings, and gain insight into the heart of the case. Emotions and feelings can be powerful sources of information, for both the client and lawyer. Yet, emotions don’t always provide accurate information, and they can overwhelm other sources of information. Sometimes a lawyer’s own emotions can take over and interfere with seeing the case from all sides. Equipoise gives us time to recognize the emotions, and space to consider the potential limitations of emotion-based thinking.
Sometimes, clients want the lawyer to solve their problem the way they have been trying to solve the problem. Even though the client may have been trying for a long time to use their preferred method to resolve a conflict, and haven’t been successful, they may think the lawyer can use the same technique because they are more skilled at persuading people. Pausing before taking action may reveal the problems with the client’s preferred course of action, and reveal alternate and effective approaches.
Equipoise from a conflict science perspective
CSI’s Conflict Model points out, from the perspective of information processing, how clients often have a biased view of their situation. This involves an information processing bias where certain types of information is not being considered. Sometimes this is described as involving the defensive exclusion or defensive over-attribution of certain classes of information. The client may not be considering all the relevant rules, the broader context of the situation, other people’s feelings and needs, or even their own true needs. They may be relying primarily on their feelings, or on a too-narrow rule set (“When they do the crime they do the time!” “She had an affair, she doesn’t deserve anything!”). When lawyers buy into the client’s view and fail to pause to consider what information the client may be excluding, distorting, or over-relying on, they can expose themselves and their clients to risk.
Two common types of information processing bias
When clients use cognitively-based self-protective strategies (sometimes called defense mechanisms), they are at risk of over-focusing on a too-narrow set of rules, and expecting others will follow the same rule set as they do. They may also be at risk of putting a desire to care for others ahead of caring for their own needs, so their needs are excluded from their information processing. And, they may have a strong sense of self-reliance which makes it difficult to consider compromise and cooperation.
When clients use affectively-based self-protective strategies, they are risk of being over-focused on satisfying their own feelings in the moment, and have difficulty considering other people’s feelings and needs. They may not be used to complying with necessary rule-sets, and feel a psychological push to require others to follow rules when they are not doing the same thing. They may actually be comfortable in conflict, and not considering the short or long term cost of remaining in conflict. For some of these clients compromise may be a danger, and accepting it may require help from their lawyer.
A sub-group of people using affectively-based self-protective strategies present as being unable to help themselves. Feigned helplessness is a term to describe behavior patterns within this group. They have a life-time of experience successfully motivating people to do things for them, even though they are fully capable. Some people in this group can also have a psychological, or neurobiological drive to be obsessed with revenge. They can also be capable of making seductive (sexually or not) arguments, and persuade others that their plight is an emergency. The combination of desiring revenge with skills to motivate others to carry out the revenge, and in the context of an apparent emergency, creates a personality structure for these clients which can be dangerous for unaware lawyers.
Equipoise to maintain ethical integrity
“It’s an emergency, you must save me!!”
Egil Krogh may offer a good example of the risk of losing sight of an ethical compass. Krogh was a Deputy White House Counsel to President Nixon, and although he had a reputation for scrupulously obeying the law, he was convicted for crimes in the 1970’s Watergate scandal. He had been appointed as one of the co-directors of the “Special Investigation Unit,” commonly known as the “Plumbers,” and in this context went on to commit crimes in the name of national security.
Krogh went to prison and his conduct is often cited as a leading cause to Nixon’s downfall. Decades later, explaining why he and others made such bad choices he said it was a collapse of integrity, and that “[w]e made our decisions in an emergency context.” (Krogh, Egil & Krogh, Matthew D. (2007), Integrity: good people, bad choices, and life lessons from the White House, Public Affairs Press., at 2.)
A sense of urgency in the context of an apparently big problem, and a desire to protect his client resulted in Krogh setting aside his otherwise strong personal ethics and behaving in a way he would not normally behave.
When clients come to lawyers with a seemingly dire emergency, it’s easy to lose sight of the big picture and an ethical compass when lawyers don’t pause to consider the whole situation before taking action.
Techniques to maintain equipoise
Many of CSI’s tools in the Integrative Client Centered Model (ICCM) are effective to support equipoise. Integrative Listening provides a robust 10-element listening model which helps a lawyer hear and understand the client’s perspective while maintaining professional distance. CSI’s Conflict Model details the two main patterns of client information processing frequently seen in conflict situations, as well as the sub-patterns.
Understanding and learning to accept emotions is a critical skill. Google “Feelings Wheel” to find an emotion chart that can help you build a broad vocabulary of emotions. Emotion science is one of the youngest of the relationship sciences, in part because without modern neuro-imaging it has been hard to study emotions on a neurobiological level.
Equipoise and emotion science
CSI uses several modern emotion theories, including those of Jaak Panksepp. A neuroscientist and psychobiologist, Panksepp established the field of affective neuroscience. His research led him to identify seven primary emotions which emanate from the brain stem and trigger neural networks in other parts of the brain to create secondary and tertiary emotions. The seven core emotions he uncovered are:
- PANIC/GRIEF (a core emotion supporting the attachment system)
Panksepp uses an all capital format to distinguish core emotions from the general use of the word. Panksepp details how these emotions motive action, how they relate to higher level emotions, and the neural structures where they start and move energy into. Panksepp, Jaak & Biven, Lucy (2012), Archeology of the mind: Neuroevolutionary origins of human emotion, W. W. Norton & Company.
Equipoise is a touchstone to help lawyers flexibly balance emotions, facts, and actions
Equipoise helps lawyers and mediators stay with a client’s emotions without getting hooked into, or lost in them. It’s okay to get emotionally close (in a professional sense) and align with the client’s perspective to truly see it, or to walk a mile in their shoes. Legal professionals just need to be mindful to pause, step back, look for additional facts the client has missed, and consider the broader situation before recommending or taking action.
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