Chapter 4

• Jurisdiction: United States

Chapter 4 Be the Water, Not the Rock (Giving in to Get Your Way)

A stream chuckles along between its banks. In the middle of the stream stands a large rock, commanding with all its presence for the waters to stop. But the waters keep churning and flowing along; bouncing, streaming, and flowing over the rock. The water has direction—it has flexibility. Be the water, not the rock.

Before the enactment of the discovery laws that permitted pretrial investigation of facts and contentions, trials were often full of surprises. Now, over a half-century later, the majority of time is spent on discovery, and trials have become increasingly less frequent. Unfortunately, the discovery process has become mired in needless and time-consuming disputes. This chapter explores the dynamics of conflict and the psychology at play during the discovery process that affects both sides.

This chapter is not about what threats and overpowering strategy you can use to vanquish the intransigence of the opposition. What this chapter is about is how to adopt an attitude that will help you get what you need while remaining thoroughly professional and civil.

In the Battle Between the Irresistible Force and the Immovable Object, Nobody Wins

Because we are asked to assert rights and defend interests, we are inescapably involved in the business of conflict. And the nature of conflict is disagreement. The challenge is whether we will manage the conflict, or the conflict will manage us. The advocate for each side will be expected to employ forceful tactics and clever strategies. But for every lawyer who fancies that he or she is an irresistible force, there is an opposing lawyer who is out to prove that he or she is an immovable object. This "immovable object versus irresistible force" paradox has been the subject of mythology, philosophy, and comic books. To accomplish what you need, you must think outside the box, change the dynamic, and find a way to get what you need by other means. Flexibility and balance will often overcome an immovable object. Be the water, not the rock.

An Aikido Martial Arts Approach

(Above photo is the author—standing)

Aikido is a martial art developed in the 1940s by Morihei Ueshiba (1883-1969). One of its basic tenets is the avoidance of head-to-head conflict. The word aikido is actually three words in Japanese, "ai," "ki," and "do." Roughly translated, "ai" means harmony or agreement, "ki" means "energy," and "do" means path. Together, aikido describes the confluence of energy and harmony. Stated another way, it is the antithesis of force versus force; it is a way to redirect force aimed against you to your advantage. I studied aikido for several years and became moderately proficient, advancing to the rank of brown belt. But what I remember clearly was during advancement examinations when the dojo's sensei (teacher) asked me, "How do you apply these principles in everyday life?" I was ready for the question because I had been applying it to the conflicts I experienced regularly in the practice of law. Giving in to get your way^* became a new option in succeeding when faced with an immovable opponent. Over the years, I have written and lectured about this idea, using the following descriptions.

Head-to-Head Force

Head-to-head force (known in aikido as "the line of force") occurs when two people are engaged in direct disagreement with each using the same method. Picture this scenario: two nine-year-old boys are having an argument.

"Oh yeah?"

"Yeah!"

"Says who?"

"Says me!"

"Whaddya going to do about it?"

"I'm taking my ball and going home!"

"Go ahead, crybaby!"

"Who you calling a crybaby?"

"You!"

"Wanna fight?"

Now, fast forward twenty years, and these boys...