Why Lawyers Should Swap “Keyboard Courage” for Real-World Empathy
I was thinking that as lawyers, our tone is often harsher in our emails/mark-ups than in person (a version of the“online disinhibition effect”).
I think most of us are guilty of it. I regularly write phrases like “Unacceptable, not in line with market practice” in mark-ups, when I really should know better.
After all, when I’m on the receiving end of it in a contract negotiation it just causes me to entrench. Whereas when someone comes at me with a dose of respect and empathy, I’m way more likely to listen to their side of it.
The Research Behind Empathy
Turns out that empathy is a proven negotiation tactic. Harvard Business School conducted a study revealing that negotiators who demonstrated empathy achieved superior outcomes. They were more likely to build trust and find mutually beneficial solutions.
As an aside, Seth Freeman (my favourite negotiation guru), recently wrote a great book about how to do this in practice.
But for lawyers, it’s often even easier. We’re regularly on the other side of the same issue, so for a lot of standard legal issues, all that’s required is a thought experiment:
Before you hit ‘send’, imagine you were the recipient, how would the mark-up or email make you feel if you were acting for the other side on this exact point?
Would you feel heard and understood, or would it make you feel annoyed or attacked?
Why Tone is Crucial
As humans, we respond quite predictably when faced with aggressive or confrontational language. Speaking for myself, I tend to immediately dig in my heels and double down on my own position.
In contrast, when we are approached in a respectful and empathetic way, it makes it much more likely that we take our counterparty’s viewpoints seriously.
Takeaway
The next time you're drafting an email or marking up a contract, think about your tone. What tone would convince you if you were the lawyer on the other side?
As Seth Freeman often says: you can win warmly in negotiations!
Thanks for being here,
Daniel