Inside Track: When Helping Hurts: How Professionals Become Negative Advocates, or Not:

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  • Inside Track
    July
    18
    2012

    When Helping Hurts: How Professionals Become Negative Advocates, or Not

    Bill Eddy

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    Lawyer Bill Eddy of the High Conflict Institute, in San Diego, explains the problem of "negative advocacy," which can occur when advising high conflict or emotionally charged clients. In Eddy's article, learn how to avoid it.
    Attorney Bill Eddy of the High Conflict Institute, San Diego, is a featured speaker at the State Bar’s 31st Annual Family Law Workshop, presented by the State Bar’s Family Law Section, Aug. 9-11, at the Stone Harbor Resort in Sturgeon Bay.
    Bill Eddy

    July 18, 2012 – Most professionals are helping professionals. We like to help our clients as lawyers, mediators, therapists, arbitrators, social workers, human resource professionals, financial professionals, healthcare professionals, educators, administrators and others.

    We want to help people accomplish their goals, using our professional skills. Often, in order to help someone in a dispute or difficult situation, part of our work is to advocate for a client in dealing with one or more other people. But when a client has a high-conflict personality,1 there is the risk that this drive to help can go off the rails and become distorted.

    Inadvertently, we may help the person stay stuck in their dysfunctional behavior; we may hurt others who have become their “targets of blame.”

    When this happens, we become “negative advocates” for a high-conflict person (HCP), by advocating for their negative behavior, negative thinking and negative emotions, much like a co-dependent “enables” an alcoholic or addict.

    When a professional becomes a negative advocate, he or she may be much more persuasive than the HCP and may make the situation much, much worse. In my experience over the past 30 years as a lawyer, mediator, and therapist, most prolonged high-conflict disputes involve at least one HCP and one professional who has become a negative advocate for the HCP.

    Helping an Individual Client

    Sometimes, lawyers become outraged with the other party in a high-conflict divorce (or other dispute), who the lawyer has never met.

    The client’s stories of the other person’s bad behavior (abuse, false allegations, alienation) may be emotionally upsetting to the lawyer. Sometimes, the client may be an HCP, whose perceptions are distorted and who misinterprets or generates “emotional facts” which do not exist in reality.

    People with high-conflict personalities or personality disorders often look good on the surface (smart, attractive, friendly, etc.), but under the surface they often are abusive, alienating, and/or make frequent exaggerated or false statements.

    HCPs are preoccupied with blaming others and have a lot of intense emotions. This can confuse the listener, especially one who is sincerely trying to help a client. The listener can become “emotionally hooked,” totally believing what the client says and absorbing their fear and anger.

    If the lawyer is saying all of these advocacy statements without ever meeting the other party or having any other outside confirming information, the lawyer may be “enabling” a high-conflict person. In some such cases, the professional’s “zeal to help” reinforces distortions on the part of an upset client – and that client takes legal actions that eventually backfire.

    In some extreme cases, a lawyer has lost credibility and been sanctioned for vigorously promoting allegations which were found to be false. For example, sanctions were awarded against two attorneys in one case for $3,000 each, paid to the court, for becoming negative advocates (although that term was not quite used):

    “An inference of willingness to assist Mr. Kwong's harassment of Ms. Gong and to abuse the court's processes could be drawn from his counsels’ sophistry and their litigation tactics, which went beyond proper advocacy and common sense. An attorney in a civil case is not a hired gun required to carry out every direction given by the client. …”2

    When Helping Hurts: How Professionals Become Negative Advocates, or Not

    Emotionally Hooked and Uninformed

    Negative advocates are usually emotionally hooked and uninformed. They can be anyone, not just professionals. In conflict situations, HCPs are often accompanied by more negative advocates, who may be family members, friends, co-workers, and professionals.

    A common characteristic of such individuals is that they are hyped up emotionally, but turn out to know very little about the situation. It is easy to become frustrated with them for their ignorance combined with intensely emotional advocacy.

    But we need to be aware that we, as lawyers, are just as vulnerable to being uninformed if our sole source of information is our upset client (who may be an HCP or someone responding to an HCP with great emotional intensity and frustration).

    When dealing with others who are negative advocates, it helps to calmly inform them about the realities of the situation rather than getting angry with them for their ignorance.

    To prevent ourselves from slipping into this situation, we must make sure to gather more information besides what we hear from our upset clients.

    How to Avoid Becoming a Negative Advocate

    There are several points to take away from this discussion:

    1. Monitor your own emotional level. Keep this in mind when advocating for a client or when resolving disputes – especially high-conflict disputes. Make sure you do not become so emotionally engaged that your logical and higher thinking shuts down.
    2. Maintain a healthy skepticism. If you totally believe someone, you are probably emotionally hooked – because we shouldn’t even totally believe ourselves. Our own brains play tricks on us from time to time, so it is natural for that to occur to our clients as well. Emphasize the importance of gathering outside information to corroborate a client’s story and explain that other professionals may be skeptical of basing action on emotional information only.
    3. Ask yourself: “Is this really a crisis?” Intense emotions help us deal with a crisis with responses like fight, flight, or freeze. However, most disputes in today’s society involving professionals are not this type of crisis – they just feel that way. If it’s not a life-and-death crisis in the moment, then you have time to think logically and use all of your problem-solving skills – which are not available to you in a life-or-death crisis when emotions take over for very quick but less accurate action.
    4. Avoid “all-or-nothing” solutions. Most of today’s problems require refined solutions, rather than all-or-nothing solutions. Desires to eliminate or totally blame another person or group are signs of being emotionally hooked, not useful problem-solving. Yet our adversarial systems (court, politics, etc.) were structured centuries ago and allowed (encouraged?) all-or-nothing solutions that don’t fit well with today’s disputes or alternative dispute resolution options. We can do better (and we have to do better) than thinking in all-or-nothing terms in today’s modern world.
    5. Be a positive advocate. When faced with a client or two parties in a dispute, advocate gathering information, tell them options, say you will represent their concerns – but don’t go “beyond proper advocacy and common sense” as was described in the case above.
    6. Prepare some responses in advance. It often helps to have a few statements ready for those times when you are suddenly facing an emotionally intense client – who could be an HCP or someone just responding to an HCP who has become emotionally hooked.
    7. Get another perspective. Ask for feedback or consultation to help manage your own responses. We all have “tricky brains” which sometimes confuse situations requiring fast defensive action and slower more accurate problem-solving. You can’t solve many of today’s problems alone.

    None of these precautions limit you from informing possible victims of abuse and false allegations about options for dealing with their situation, including talking to victims’ advocates and professional advocates. The point is to remain logical and in control of your efforts at all times, and never to allow yourself to become purely emotionally driven. This way, you will remain within the limits of your own knowledge and scope of professional responsibilities, while maintaining your own credibility and doing the most you can for your client(s).

    About the Author

    Bill Eddy is a lawyer, mediator, therapist and the author of several books on dealing with high-conflict people, including It’s All Your Fault! 12 Tips for Managing People Who Blame Others for Everything. He is also the president of High Conflict Institute, which provides professionals with advice about dealing with high-conflict situations in legal disputes.

    This article has been adapted and produced with permission from Bill Eddy and the High Conflict Institute. An original version of this article first appeared in the Institute’s June 2012 Newsletter.

    About the Family Law Workshop

    The 31st Annual Family Law Workshop will be held Aug. 9-11, at the Stone Harbor Resort in Sturgeon Bay. Family Law Section member tuition is $205. (Tuition for Family Law Section members attending first workshop is $180). Non-section member tuition is $280.

    Visit the State Bar’s website, www.wisbar.org, to join the Family Law Section, or to see the workshop schedule. To register, please call the State Bar of Wisconsin at (800) 728-7788 or download the registration form and return it by fax to: (608) 257-5502 or by mail to:

    State Bar of Wisconsin
    Attn: Family Law Workshop
    P.O. Box 7158
    Madison, WI 53707-7158

    Endnotes

    1 For information about high-conflict people, see High Conflict People in Legal Disputes or BIFF: Quick Responses to High Conflict People, by Bill Eddy available at www.HighConflictInstitute.com.

    2 In re Marriage of Gong and Kwong, 163 Cal. App. 4th 510, 521 (2008) (Emphasis added).