Updated: Jan 8, 2021
Once, I was involved in litigation with a particularly difficult opposing counsel, a lawyer with at least a decade more experience than I have. Early on in the case, we had a telephone discussion regarding certain issues in the case, but by the time those issues made it to written correspondence, my own words had been totally twisted. I, like many lawyers I know, have had this unpleasant experience, which is why I decided to put everything in writing from then on. Yet, the twisting didn’t stop! Throughout the case, rather than respond to what I viewed as run-of-the-mill discovery issues that could be easily resolved, this lawyer chose to respond with personal accusations—that I had continuously made unreasonable demands (I had only asked them to respond to our discovery requests), that I was imposing “unilateral and bad faith deadlines” (their side missed the deadline to respond under CRCP 26), that we were churning the file by asking that they prepare the corporate plaintiff for a 30(b)(6) deposition, and even in a Court pleading that stated I had never conferred with them prior to filing a motion (when there were at least seven emails showing my extensive conferral efforts). After a month of this, I began to question my sanity and ability. Had I been unreasonable? Had I properly handled conferral? Was my memory regarding correspondence on the issues flawed? (Review of the emails proved I had been right.) Would I be able to respond during our hearing when he would, undoubtedly, make up facts to our Judge? It was during one of these moments of unexplainable self-doubt that I had an epiphany—he was gaslighting me.
According to Psychology Today, gaslighting is “a tactic in which a person or entity, in order to gain more power, makes a victim question their reality.” The term comes from the 1944 movie, Gaslight. In the movie, a husband attempts to convince his wife she is going insane by, among other things, turning on the attic lights in order to cause the gaslights in the living room to dim, and then trying to convince his wife she had imagined the flickering and dimming lights all along. Gaslighters are known to use the following techniques: 1) lying; 2) saying they never said something even though there is proof they did; 3) ramping up snide comments over time; 4) using ad hominem attacks (especially ones that hit close to home); and 5) taking actions that do not match their words. Becoming victims of gaslighting as lawyers is particularly concerning, because it could have real effects on our clients. In my experience, the tactic is employed in an attempt to get a lawyer to back off (correct) positions by attempting to manipulate the lawyer into believing their position is outlandish, the lawyer’s strategy is “unprofessional,” or the lawyer’s position is “unethical.” As it turns out, gaslighting doesn’t just happen to young attorneys. When discussing whether to write a blog about this topic with other lawyers of all different levels of experience, every litigator I talked to said that opposing counsel had attempted to gaslight them recently, which means the tactic must be somewhat prevalent in our industry. Therefore, it is important to know when we are being gaslit and how to combat it.
How to recognize gaslighting. First, make sure you aren’t breathing your own fumes. That means recognizing sometimes opposing counsel might be right when they point out that a motion to compel would not be appropriate because sufficient conferral has not yet taken place. Acknowledging when a good point is made by the other side is essential to being an effective advocate. The main thing about gaslighting that separates it from proper advocacy is that it is not supported by any actual facts. Taking the example above, if opposing counsel says further conferral should occur, and points to the judge’s local rule that requires at least four telephonic conferrals prior to a motion to compel, or that a judge prohibits motions to compel altogether, that is a reasonable argument for why a motion to compel isn’t proper. However, if an opposing counsel says a motion to compel is improper because you have never conferred, even though you have seven emails showing extensive conferral, that is a sign he or she is trying to gaslight you. That argument is not based in fact (conferral has, in fact, taken place). Instead, it relies on you to second-guess what you know to be actually true.
How not to become a victim of gaslighting. I can only speak from personal experience, but one thing I have found that works is to keep written correspondence and documentation of every single thing that happens with opposing counsel. One of the best ways to combat gaslighting is to have written evidence that contradicts the gaslighter’s position. That way, when there is a disagreement put in front of the court, there can be no doubt which version of the facts is correct. The harder one is not to back down from positions you know are right even when your opposing counsel is older, more experienced, and a bully. It can be exhausting to constantly deal with personal ad hominem attacks, to correct a certain version of the facts, or to call a lawyer out on being dishonest. Do it anyway. Believe in your positions and recollections when you know they are right. Most of all, out-lawyer your opponent. Use the rules and case law to back up your positions, go to the court for intervention when opposing counsel refuses to comply with their obligations (even if they claim you are being “unprofessional” or that they have “never seen someone so aggressive”—remember, these are just techniques a gaslighter uses), and know your case inside and out, so that when given the opportunity, you can correct opposing counsel’s incorrect statements of the facts with confidence. In my (admittedly limited) experience as a young attorney, attorneys, and regular people, don’t resort to gaslighting if they have valid arguments to make.
Jennifer Tiedeken was born and raised in Cheyenne, Wyoming. She graduated cum laude from Colorado State University with a B.A. in English and a teaching certificate in Secondary English Education. Ms. Tiedeken received her J.D. from the University of Denver Sturm College of Law and was inducted into the Order of St. Ives. Ms. Tiedeken is licensed to practice in both Colorado and Wyoming.
Ms. Tiedeken joined Davis and Ceriani as an associate in 2011. She is part of Davis & Ceriani’s trial team. Her practice includes securities litigation, employment litigation, complex commercial litigation, and general civil litigation.
Article Edited by: Valerie S. Pappas