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By: David C. Peterson, Mediator



By: David C. Peterson, JD, LLM, MDR*


Dramatic social shifts occur periodically. One is taking place now. The Harvard Business School refers to it as “(o)ne of the most influential business ideas of the decade.” The following quote appeared in the July, 2005, American Bar Association Journal: “Research over the last decade has conclusively demonstrated that emotional intelligence predicts success more than any other single factor ….”

Success in our context is to thrive as a lawyer, doing that which is rewarding and satisfies purposes higher than monetary gain and ego satisfaction. After all, these alone are shallow bins from which to get complete satisfaction from our work.

Some of the important qualities of EQ are: 1) The ability to Empathize; 2) Self awareness; 3) Social Awareness; 4) Positive Thinking and Hope; 5) “Emotional self regulation.”

Thankfully, it has been discovered through research that these qualities can be learned and mastered (unless you’re psychopathic). As it becomes more ingrained in society, the results are impressive. Companies embracing it have excelled. Where government leaders practice it, success unfolds. A recent example is General David Petreus. He was honored for his success in Iraq. The area under his command saw the fewest casualties and the most cooperation from Iraqi citizens. Why? He and his soldiers went into the community to find out what the people wanted from them. They delivered to the extent they could. They stood out, way out, compared to the other generals and leaders working in Iraq.  The ability to listen, empathize and act intelligently on the insights gained were the main keys to their success.

To be effective we must master ourselves and have the ability to empathize with those with whom we deal. This includes clients, opposing attorneys, witnesses, judicial officers, our staff, the judge or jury, and so on. This does not mean agreement or sympathy; it means the ability to see things the way the other person does; to place oneself in the shoes of another and see things from their perspective. You can love or despise a person and still empathize with them. If you do, you can deal with them meaningfully and effectively. If you don’t, you’ll likely fail to achieve all your objectives.

            The modern view of integrity includes the qualities of EQ. In his book, Integrity, Dr. Henry Cloud observes that:


There is no shortage of talented, brainy people who are very, very good at what they do and are able to work the system and schmooze other people to get things done. There are zillions of them, and we all see them every day. (p.6) 


There is no integrity in this. Nor is impeccable honesty sufficient. There are “many honest, ethical people of ‘integrity’ who were not making it in some way.  * * * (T)he reality is that their ‘person-hood’ was still preventing their talents and brains from accomplishing all that was in their potential.” (p.9) 

For those seeking to improve their integrity, they find it comes from:


·         Empathy, “…the ability to enter into another person’s experience and connect with it in such a way that you actually experience to some degree what the other person is experiencing … at least for a moment ….” (pp 9 &58)

·         Gaining complete trust of others by connecting authentically with them;

·         Seeing all of the realities right in front of them, and being in touch with these realities;

·         Effectively dealing with problem people, negative situations, obstacles, failures, setbacks, and losses; realizing that “life is largely about solving problems;”(p.172)

·         Transcending their own interests and giving themselves to larger purposes, thus becoming part of a larger mission;

·         Resolving conflicts by seeing and working with the truth from the other side and integrating it into one’s own truth, finding a solution that transcends either polarity,  (p.133) “going hard on the issue and soft on the person.” (p.192)

·         Actually producing the outcomes that their abilities would allow them to accomplish.


Attorneys respected for their work and ideals appear to share the following EQ qualities:


·         They empathize with their clients and those around them. Again, this is not always sympathy or agreement. It is simply the ability to recognize what factors are driving the thoughts and actions of the client and others they deal with.

·         They are genuine and connect in a meaningful way with others with whom they deal or seek to influence. They don’t seek to dominate by aggression. They are dignified but not aloof.

·         They are honest and show integrity. By doing so others respect them, even their opponents in most cases.

·         Rather than automatically imposing their own agenda on everyone, they patiently and carefully survey the situation and study the individuals they are engaged with.

·         They are not impulsive or rude. Instead, they respond appropriately and with purpose, showing respect to those around them, even in the face of attack.

·         As a result, the attorney possessing emotional intelligence is in control of their own emotions and actions. They are realistic and accept those things they cannot control but carefully take action where their control or influence can make a difference. Time and emotion are not wasted with tantrums, outbursts or other negative behavior.

·         Their mental and other resources are devoted to positive thoughts and action. Their minds are not cluttered with negativity and unproductive thoughts. Where things go wrong, these attorneys see it more as an opportunity to face and get through the circumstance with dignity and grace. They don’t make excuses or seek to pass out blame.

·         They realistically assess the circumstance and calmly take appropriate action. They follow the course described in Ben Stein’s book, How Successful People Win. He calls it “bunkhouse logic.” When a cowboy finds that a well on his trail has run dry, he doesn’t sulk, go into a rage or seek to assess blame. He sees the circumstance as just a good argument to move on to another water source.


Attorneys and others with EQ usually stand out in their circles. They are comfortable to be around. Their clients trust them as do their opponents and judicial officers. This is because this attorney takes into account the situation and feelings of everyone around him or her. They react and communicate in a manner dictated by the results of their ability to accurately assess the perspectives, feelings and perceptions of others within their sphere of influence.

Jerry Spence (How to Argue and Win Every Time) describes and explains the aspects of emotional intelligence for lawyers better than anyone. He recounts his mistakes early in his practice where he failed to employ this quality. After a trial where he had taken a witness apart in blistering cross-examination, a juror asked Spence, “Why did you make us hate you so much.”  He had forgotten to take into account the potential reaction of the jury to the manner in which he presented himself. He had not empathized with the jury.

In another example where he used EQ, Spence describes his approach when filing a brief. He pictures the judge and what it must be like to be that judge. He thinks of how the judge must want to throw most briefs at the wall because they have to read so many lengthy, boring, predictable, bombastic, and unenlightening briefs. On this topic, Justice Wickson Woolpert once told me as I was preparing an appellate brief: “Dave, make it interesting and short.”

Abraham Lincoln displayed this quality in his statement that, when he would be facing a man to influence him, he spent two-thirds of his time thinking about what the other would say and one-third of the time thinking of what he would say.

Complete and accurate listening is crucial. In the book Making Smart Decisions (Harvard Business School Press), the authors point out the “filters” of our mind that compel us to tune out negative information or information disagreeable to us. When we do that we will ultimately fail. Leadership experts point to this as the single worst trait of leaders who end up getting their company or the country in trouble. The company, Compaq, suffered a huge downturn due to its leaders’ failure to listen to warnings regarding the inroads being made by Gateway and Dell.

It takes patience to listen accurately, and an honest effort. Having a right frame of mind is necessary. Failure to do it leads to mediocrity or worse.

Every author discussing the subject of EQ or effectiveness emphasizes the need to be genuine, not phony. Even the ultimate salesman, Zig Zigler (Secrets of Closing the Sale), said you can’t have success without being genuine. Those who are unable to be genuine have little hope of grasping, developing and using the concepts of emotional intelligence.

Spence devotes another section of his book on this topic: “The Incredible Power of Credibility.”  He says, “The first trick of the winning argument is the trick of abandoning trickery.” Those who engage in “trickery” are eventually exposed for who they are. Being “straight up” and genuine gets us further in the long run.

Emotional intelligence also requires that we avoid acting upon our primitive instincts. Our first instincts are usually contraindicated when it comes to getting the results we and our clients desire. If we are attacked our first reaction, if not checked, is to counter-attack. This is most unproductive. They say that a part of our brain’s frontal lobe acts as a “damper on our instincts to go ballistic.” Some of us need to go into the shop to get ours fixed. An emotional reaction or outburst usually escalates an already bad situation and produces no favorable result. Anger (or intoxication for that matter) has led to some of the poorest decisions humans have made. We usually do it out of fear or self-protection, motives that cause us to wander from our true objective which we’re unlikely to reach by way of knee jerking emotional reactions.

Another trait contrary to emotional intelligence was exposed by George Carlin who observed as follows: “Did you ever notice that when you’re on the freeway those who are going slower than you are idiots and those going faster are maniacs?” The thought that we are the center of the universe, are all knowing and have all the right answers or keys to life, persists in most of us. When our minds are closed to others and their ideas our vision is stifled. We become myopic, less effective and unproductive. We lose the ability to be creative in finding solutions for our clients. It’s a flaw in integrity as Dr. Cloud sees it:


(It) is the worst sickness of all: the preservation of the ‘good self.’ It is the character component of narcissism, the search for the ‘ideal self,’ or the wish to see oneself as ‘all good’ or flawless or perfect. It is one of the sickest traits we can have.


The “my case” syndrome is also a problem for lawyers. What can I get from my case? What’s in it for me?  Is the primary goal the money we can make, the ego we can feed, or the aggression we can display?  What’s the underlying motivation for what we do? We should ask, how can it be more meaningful for our clients, ourselves and for our legal community as well as for the public in general?

One way to test ourselves on these qualities is to look at the wake we are leaving behind. Like a boat, we move though the waters of our experience. Two trails are formed, one to the right and another to the left. One wake represents the tasks we performed, the other our people relationships. Are these trails mostly positive or negative? As Dr. Henry Cloud puts it: “(w)e can tell a lot about (a) person from the nature of (their) wake.”

The more all of us strive to employ the components of emotional intelligence and integrity the more we will excel and be satisfied with what we do. It appears to be a life-long process from which we never graduate. As we improve, however, others around us are lifted and we lift the image of our profession as well. We also find greater success and satisfaction with our lives.


*Mr. Peterson is a local, full-time mediator holding an LLM and Master’s Degree in Dispute Resolution from Pepperdine University School of Law. For information, comments or questions, he can be reached at (805) 441-5884 or For website information, search: “David C. Peterson Mediator.”

End Note

As the EQ model has expanded, I have found the concepts prominently described in such diverse, recent books as those listed below which I recommend. In these books, the authors highlight those essential skills that set individuals apart and render them most effective in their work and personal relationships.

  • The Audacity of Hope, Barack Obama;
  • How to Argue and Win Every Time, Jerry Spence;
  • The 7 Habits of Highly Effective People (and The 8th Habit), Steven R. Covey;
  • The Power of Nice, Shapiro and Jankowsky;
  • Integrity, Dr. Henry Cloud;
  • Secrets of Closing the Sale, Zig Zigler;
  • Getting to Yes, ** (and Getting Past No), Ury and Fisher;
  • How to Out Negotiate Anyone, Herb Cohn;
  • Crucial Conversations-Tools for Talking When the Stakes are High, Patterson, Grenny, McMillan & Switzler;
  • Lawyers as Counselors, Binder, Bergman & Price;
  • Verbal Judo, The Gentle Art of Persuasion, Thompson & Jenkins;
  • The Secrets of Power Negotiating, Roger Dawson
  • Difficult Conversations, Stone, Patton & Heen (Harvard Negotiation Project);
  • Getting Disputes Resolved, Ury, Brett & Goldberg (Harvard Project);
  • Beyond Reason, Fisher & Shapiro (Harvard);
  • Smart Negotiating, Dolan;
  • A Purpose Driven Life, Rick Warren;
  • How Successful People Win, B. Stein;
  • The Five Essential People Skills, Carnegie;
  • The Truth About Getting Your Point Across; Pacelli;
  • Making Smart Decisions, Harvard Business School Press;
  • Thinking for Change, Maxwell;
  • How to Win any Argument, Robert Mayer.

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