Episode Transcript
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(00:00):
Hi, I'm Parag Amin.
Welcome to my podcast.
From Crisis to Justice.
As a lawyer and entrepreneur, I'mpassionate about helping small business
owners successfully navigate situationsthat can kill a business.
As a kid, I watched my dad's dreamsof being an entrepreneur were destroyed
by an unethical businessman, and I don'twant that to happen to you or your family.
(00:22):
That's why I started my law firm.
I want to protect and defend businessowners and their legacies from crisis.
Welcome to From Crisis to Justice.
Welcome back, everyone.
To the From Crisis to Justice podcast.
I'm your host, Parag Amin.
(00:43):
Today, I'm joined by a very special guest.
Doug No.
Doug is a former trial lawyerturned mediator and executive coach.
He's also a bestselling authorwho's written four books,
including his most recent book,De-escalate.
Welcome, Doug.
Thank you so much for being on today.
Parag,it's always fun to be in a conversation
(01:05):
with a like minded, formerlike minded small business litigator.
Yeah, I love it.
Yeah. Soall right, so let's talk about this.
You turned.
You went from businesslitigation trial lawyer.
And if you would just
give our readers or listenersa sense of what that life is like
and then now turning into a mediator,
(01:26):
an executive coach, and a peacemaker,as you describe yourself.
So we started the beginning.
I grew up in Southern California,where you live now.
I grew up in San Marino,
which is just outside of Pasadena,California, in the San Gabriel Valley.
When I graduated high school,I went back to Dartmouth College,
graduated in Dartmouth,came back to California,
(01:47):
taught skiing for a year, and then enteredlaw school up in Sacramento
in 1974, graduated from law school.
I was on the Law Review as well,so I took a judicial clerkship.
I didn't want to go back to L.A.
and I didn't want to go to the Bay Area.I wanted to live near the mountains.
So I took a clerkshipwith the Fifth District Court
of Appeals with Justice George Hopper
(02:09):
and worked in Fresno for a yearand then ended up staying here and joining
a midsize firm that was a litigationbankruptcy firm.
So they did all kinds of litigation,plus bankruptcy,
and that was in September of 1978.
I tried my first jury trialsix weeks later
(02:30):
in October of 78,three day jury trial in Madera County.
And then my next jury trialstarted in December of 78,
defending a $36 million securitiesfraud case in the Southern District
of California in San Diego, and spentseven months in San Diego
defending a Kern County farmerwho had been accused of securities
(02:51):
fraud by a bunch of securities investors.
And we successfully defendedthat one on our cross complaint.
And that's how my career as a trial lawyerstarted.
Along the way.
I'll say maybe ten years later,
in the 80, 86, 87,I took up the martial arts and became
I was awarded my second degree black beltwhen I turned around my 40th
(03:12):
birthday in 1990, and my teacher told me,Go learn, go study.
Tai Chi is a martial art.
No more Chinese kung fu for you.
Too arrogant kind of an asshole.
You're going to hurt somebody.
So I started studying Tai chi
and TaiChi has two really interesting paradoxes.
The first is the softeryou are, the stronger you are,
(03:37):
the more vulnerableyou are, the more powerful you are.
Soft to be strong,vulnerable to be powerful did not compute.
And as you can well imagine.
So I better continue to practiceuntil it did finally seep into my soul.
I didn't know this,but I was in a courtroom
trying a case in the 1997.
(04:00):
I think maybe it was 96.
And the thought came to me,What the heck am I doing in here?
So after that trial, I had a whitewatertrip planned up and were up in Idaho
with a bunch of friendsand spent a week on the Maine salmon
in my rafts thinking about how many peopleI had really served as a trial lawyer,
and I could only countfive people in 20 years that I felt
(04:23):
had come out of this system betterthan you going in that I had represented.
And I thought to myself, you know,I've been doing this for 20 years.
I don't want to do this
for another 30 yearsand say I've only served 15 or 20 people.
There's got to be something better.
So not no, I knew I didn'twant to be a trial lawyer anymore,
but not knowing what I was going to do.
I came back to town and droveout of the mountains to my office.
(04:47):
After the Monday after that trip.
And I the universe, the universe providedI heard the one and only public service
announcement on our local publicradio station for a new masters degree
in peacemaking and conflict studiesbeing offered at Fresno Pacific
University, which is one of the West CoastMennonite universities.
And for those that don't know,
the Mennonites are one of the threetraditional Protestant peace churches.
(05:10):
I'm not I'm
not achurchgoer, but I ultimately enrolled
and my teachers, my, my, my mentorscompletely changed my worldview.
So it took me three yearsto get through that program.
So I was four in the late nineties,up until about 2000, 2000,
when I was a full timemaster's degree student, a full time
trial lawyer and a three quarters timelaw professor at our local law school.
(05:34):
So life was a little crazy in those days.
I ultimately graduated
and I'd have been having
a lot of discussions with my partnersabout
a career, what I wanted to do.
I said, I don't want to try cases anymore.
I want to People saw problems, you know,before they get in to the courtroom.
(05:55):
And they were not happy about thatbecause I was
the second highest earner in the firm.
And they were looking at the goosethat lays the golden egg,
not laying golden eggs anymore.
Finally, the managing partner gave mean ultimatum on a Friday in 2000, in late
October, said, Quit this peacemaking crapor we're not paying you anymore.
(06:16):
So I went homeand talked it over with my wife
and we did the numbers and I came backMonday morning and I grabbed him
and went to work for a manager's office.
And I took out my credit card, my keys,my cell phone, all this stuff.
And I said, I quit.
I'll be gone on Friday.
And that's the amount of notice I gave.
And then the following Monday,which was November 1st, 2000, I opened up
(06:37):
my peacemaking and mediation practice,and that's how it started.
Wow. That's incredible.
Lt was on the table
for. For your partnershipor the family? No.
I put in $10 million moreinto the partnership than I'd taken out.
I walked away from it. Wow.
So you felt that strongly about this?
(06:57):
I did the money.
You regret it now?
Do you regret it?
Not at all.
It was the best decisionI've ever met in my life.
I've done more good in the last 25 years.
I do more good in a weekthan I did in 22 years.
As a trial lawyer.
I help more people in a week
(07:19):
than I helped in 22 yearsas a trial lawyer.
My work, my work, my, my life is just oneblessing after another.
And I've done some amazing thingsthat we can talk about.
Yeah, that's great.
But I mean, let's talk about them. So.
So part of part of
your book and part of,I think, a big philosophy
(07:42):
of the things you talk aboutis emotional confidence.
Right?So can you talk a little bit about that?
Because that's not a subject that
I think hardly anybody really has studieddeeply.
Right?
So as I was studying about human conflict
and how peace works and doesn't work,this is in my master's degree.
I got through a series of events.
(08:06):
I was I was connected to ProfessorJohn Wallman at Caltech
there in Southern California.
And John was a neuroscientistand sort of schooled me
in how to understand neuroscienceas a layperson,
because I came to the insight
that all conflict starts in the brainand has to start in the human brain, too.
That's where it all begins.
(08:27):
So if we can understandhow our brain functions,
maybe we can get some insight intohow to stop people
from fighting, or if they are fighting,how to help them find peace.
So that's where it all started.
The one thing I did not get out ofmy graduate
studies is how to calm angry people down.
There were lots of peopleout there teaching stuff like
(08:50):
active listening and nonviolentcommunication.
But then that stuff workedfor de-escalating really angry people
and I was kind of at a lossas to what to do.
But I had been studying emotions,and one day in 2005,
I was engaged in a pro-bonodifficult mediation in Santa Barbara
involving a divorced couple, andto make a very a fairly long story short,
(09:14):
when we started the mediation,had there been knives on the table,
there would have been blood on the floor.
I mean, they hated each other's guts
and they were screamingvile obscenities at each other.
I didn't know what to do.
I had the thought, listen to the emotions.
So instead of having them talkabout their stories, I had them one person
tell the story and the other personreflect back what that person was feeling.
(09:37):
And it was magical. In 3 hours,
they completely calmed down.
They settled the case.
I wasn't involved in that negotiation.
All this is realized how ridiculous was.
They settled the case and they walked outto have lunch holding hands
and they had been divorced for 20 years.
It kind of blew me away.
(09:57):
I mean, my jaw hit the floorand I didn't know what I knew
what I'd done,but I didn't know why it worked.
Two years later,
a brain scanning study came
out of Matthew Lieberman's lab at UCLA,
showing why this technique called affectlabeling worked.
And it turns out that our brains are hard
wired, that when we are upset,we lose control
(10:22):
because our prefrontal cortexis overwhelmed and shut down.
Everybody's pretty much aware of that.
But this technique of traffic labelingreactivates
a part of the brain called the rightventral lateral prefrontal cortex,
and at the same time inhibitsthe emotional centers of the brain.
It's an automatic de-escalationthat occurs in every single human brain.
(10:44):
No matter where you live on the planet,every human brain is hardwired this way.
So now Ihave the science to support the practice.
And so I started developing the practice.
And the more I got into this,the more I realized
that human conflict is caused mostly
by people who cannot don't do not know howto manage their own emotions.
They're essentiallyemotionally incompetent.
(11:06):
Then I startedlooking at emotional intelligence,
and what I learned was thatemotional intelligence was a term coined
in the late 1990, 1980s
by John Mayer and Jack Salovey,one of the University of New Hampshire.
The other one is nowthe president of Yale University.
And they began to publish a paperson their study of social intelligence
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other than cognitive intelligence, whichis measured by the Stanford-Binet IQ test.
Daniel Goleman, as most people
know, was a Ph.D., but he was a New YorkTimes science writer.
He picked up on their work and wrotea bestselling book in 1995 saying Why?
Why IQ is more important than IQ,
and that he
(11:50):
sort of popularizedthe idea of emotional intelligence.
But the problem was,as I studied the academic literature,
was an emotionalintelligence cannot be learned.
It can only be measured.
And so all these companies out theretout learn emotion.
I teach emotional intelligence.
Anybody that says they teach
emotional intelligencedoesn't know what they're talking about
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because you cannot learnemotional intelligence.
What you can learnis emotional competency.
And emotional competency has three skills,three foundational skills.
Number one, we learn how to become selfaware of our own emotional experience.
Number two,we learn how to regulate our emotions.
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And number three,we learn cognitive empathy.
And what I learned
as I started teaching these skillsand teaching people how to de-escalate,
and then into the prison project,which we can talk about, as I taught
thousands and thousandsand thousands of people these skills.
What I saw was when they learnedhow to listen to and reflect emotions,
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which is cognitiveempathy, they automatically increased
their emotional
self-awarenessand their emotional self-regulation
and their emotional intelligencejust naturally increased.
So today I talk about emotional competency
and learning howto increase your emotional incompetency.
And as a result of that,your emotional intelligence rises.
(13:17):
But if you try to learnemotional intelligence, you will fail.
Hmm. Okay.
So if somebody wants to increase
their emotional competence,what's what's the way to do it?
The easiest and fastest way to develop
your emotional competency is to learnhow to listen to and reflect emotions.
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It's a skill called affectlabeling, affective labeling.
And basically it's a three step processwhen you're are you're a listener.
And let's suppose that frog, you're upset.
I'm going to do three things.
The first thing I'm going to dois ignore everything that you say.
I'm just going to completely ignoreyour words.
The second thing I'm going to dois I'm going to sit
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in silence for a momentand let my another part of my brain,
an innate part of my brain, readwhat's going on.
And basically read your emotions,
which my brain can
do and your brain can do automatically,effortlessly and supremely accurately.
When we allow ourselves to do it.
And then the third thingI'm going to do, as the emotions
(14:19):
start to come into my consciousness,I'm going to reflect back to you
what you're experiencing with a used it,
not a nice statement so that all activelistening stuff doesn't work.
So I would say something like this.
So frogmen, you are really pissed off,you're frustrated, you're angry,
you feel completely disrespected,you feel invisible
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and you don't feel heard or supported.
And this is really making you anxious.
So just by saying that
and you can actually go threeor four levels deeper than that,
but just by metelling you what you're feeling,
your brain immediately calms down.
You can't help yourself. It's automatic.
(14:59):
And once you start calming down, I'mlooking for for relaxation
responses, nodding.
Ever had a verbal response?
Yeah, or Exactly.
And then below that, a droppingof the shoulders and a sigh of relief
when I see those for autonomic relaxation
responses, then I know I have succeededand call me you down.
And I said,So how do you want to solve this problem?
(15:22):
How should we solve this problem
so I can move into negotiation,I can move into problem solving.
If it's if it's there's a fence involved,I can say, how do we make things right?
So the next questioninvites a conversation about
what caused the emotional
reactivity in the first place.
And that's basically how we do it.
(15:43):
It's I mean, it's easy to describe,like everything else, simple to describe,
not so easy to put into practicetakes a little bit of effort
to practice it because the skillsare counterintuitive and counter
normative to everything we think we knowabout listening and conversation.
Yeah, I love that.
You know, it's interesting because
(16:03):
I have intuitively used
a somewhat similar technique
when dealing with
emotionally charged situations.
As you know, in our business.
That's right.
Mostly litigation.
It can be business high or it is stillemotional is it can possibly be right.
And so usually whatI found highly effective
(16:25):
with opposing counselis I'll just say, look, it it seems like
here are the issues you're upsetabout this, this and this.
And I get it.
Your clients fired up about this,this and this.
And I will take my own emotion out of it,
but then just voice to themwhy they think their position is strong.
And I'll use I'llusually I'll use the word but
(16:49):
and I've heard makes thingsabout using the word,
but usually it's don't use itbecause people will disregard
everything you said before the butand instead switch it out with and but
I just did it there.
But and what I'll do is then I'll saybut here's why
I think this makes sense or here'show we can potentially resolve it.
(17:09):
So I'm curiousto hear your feedback on that.
So you close.
So if you've got you've got counselorsreally upset about something,
it could be a discovery matter or that'susually what people get upset about.
Or usually it's discoveryor some kind of war emotion problem.
You say, Hey,
you're really pissed off,you're really angry and frustrated.
(17:30):
You feel completely disrespected
and you feel like you're being ignoredand not being heard
and you really concerned about your client
and your client's interests and
you just think what's going onhere is outrageous.
And I wait until I get the. Yeah, exactly.
And and
I'll say and the whole thingis just super frustrating to you
(17:54):
because you don't feel like you've gota lot of control over the situation.
Notice I'm using a lot of use.
I'm not using any statements.
I'm going to keep it going in that vein
and just let you talk and me reflectyour emotional experience until I get.
Yeah, exactly.
Okay. Anything else?
No. You got it.
(18:15):
All right. Right.
How do you thinkwe ought to solve this problem?
So I'm not using I'm only labeling
your emotional experienceand inviting you to keep talking.
And I'll just keep labeling your emotionsuntil you get quieted down.
And then I'm going to invite usto collaborate
(18:35):
in a conversation or a negotiation aroundhow we're going to solve the problem.
Until you get youropposing counsel calm down,
you're going to butt heads
you in court, and now all of a suddenyou've to, you know,
15, $20,000 motion that you got to faceand you know it.
And it gets nowhere because the judgehates these things and is going to,
(18:59):
you know,
tell everybody to go outsideand figure it out.
But you already spent the $25,000on the briefing.
And, you know, it's a completeand total waste of money.
And that's why litigation is so expensive.
Right.
And you can short circuitall of that if you take the time to listen
to opposing counsel, validatedtheir emotions, recognize that everybody's
and most lawyers are just as emotionalas everybody else,
(19:21):
validate their emotions, calm them down,
and then invite them into a collaborative,problem solving process.
Yeah, I love that.
So, you know, and I agree with you,that's it's one of the reasons why I found
this rudimentary approach that I've justkind of self developed and I'm
now refining through this conversationwith you to be helpful as is.
A lot of times I have found thatit helps create a lot of efficiency
(19:44):
out of inefficienciesthat are built into the litigation system.
Right? Right.
Ultimately assisting the clientsbecause the lawyers fighting
with each other just creates more time,more expense for the clients needlessly.
That's when a lot of these thingscan be resolved through
like you're talking aboutwith the emotional competence
to be able to deal with the situation.
Now, let me ask you this.
When the other side makes a request,
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when when you say, look,how do we move forward from here
and the request is somethingyou completely disagree with.
So in this
example, we're talking about usbeing opposing counsel.
You have asked me, hey,how do we resolve this?
And I say something like, Well, Doug,
your client can just wire transfermy client $2 million.
(20:26):
We'll call it evenand we'll dismiss the case.
How do you deal with that If your client'snot ready to wire transfer that money?
I would say I'd say so.
So, Parag, just describe for me
exactly why it is
(20:46):
that you don't think there's
a defense to this case.
Tell me. Tell me what? Tell me.
Tell me whyI should advise my client to do this.
Mm hmm.
What am I missing here?
If you can convince me
that nine times out of ten,we walk into court, we're going to.
(21:08):
We're going to lose our ass.
Then I will tell my client towire transfer you $2 million.
But your job is to tell me what's.
Where are the flaws in my defense?
Okay, I like it.
Now, let's say that the other sideis guarded
about some level of informationas they will be in litigation.
I can't tell you everything, Doug.
(21:28):
You'rejust going to have to figure it out.
In any other situation,the person's still potentially upset
or a little scared to be vulnerable,like you were talking about
rightat the beginning of our conversation.
So how do you get past that, Parag?
I completely get it that you're guardedand you don't want to give free discovery,
but just understandwithout the information
that I'm asking for,without your showing me where I'm wrong,
(21:52):
my only my only alternativeis telling my client to defend this case
and not pay you the $2 million.
And there's no reasonfor us to get upset about it.
You've got to protect your interests,and you can completely understand
that without a compelling reason.
I can't advise my clientto do what you want.
So let's just litigate this thing,
(22:12):
not get upset about it.
Mm mm.
Yeah, I like that. Yeah.
I mean, itsounds like it's a it's a label.
You still go back to the labelto see if you can.
That spark starts a fire. That's right.
So I could say so proyou really, you're really nervous
and concerned about revealing informationthat might give
(22:38):
B put you at a disadvantage
and put me at an advantage over you.
And so you're really worriedabout making disclosing information
that you think is importantthat I should consider.
But that will
be it could be just event
just advantageous to you
because it's either got impeachment valueor it's got some value
(22:58):
that keeping it hiddenfor the time being is works for you.
And you're and so you're unwillingto reveal that information
because you don't want to give mean advantage over you
or you don't want to give up an advantage
that you thinkyou have over over my client.
MM That's right.
And taking that into account,
(23:20):
tell me how we should move forwardwith this.
Mm. I see. So.
So you then give them the opportunityto create the solution to the problem
and noticethere's no ice statement in there
right.
Yeah. So, so it's all about that.
(23:41):
Usually it's all about them.
Mm hmm.
Okay.
And so you just kind of keep usingthat iteration to get through the process.
That's right.
And at some point in time,they can say, well,
they could say, well,it's on you to figure it out.
And I'll say,
(24:02):
okay, so.
So you feel it's on me to do the work,The discovery worked.
I'm perfectly willing to do that.
What are youlet's schedule out the depositions then,
and let's work out a discovery plan.
Mm hmm.
And this is discoverable information.
I'm going to get it,
and I'm fine with that.
Do we really want to spendthat kind of money if you do?
(24:24):
My client's perfectly willing to do that.
However,
is it possible that that the processcould be
made more efficientif we just disclosed to each other
informationthat would otherwise be discoverable
so that we don't have to
go through all the hassle of depositions,interrogatories and request the goods
documents and the request for admissionand all that stuff.
(24:47):
Right.
Well, okay, So let me askI got to make this
I got to be tough for my client.
I got to make this hard. Okay.
So you need to make this hard.You need to look good for your client.
And I'm curiouswhat's more important to your client
that you're a you're perceivedas a tough junkyard lawyer
or that we can move towardsresolving this case
(25:07):
in an efficient, cost effective manner.
And if the answer comes backthat both are important.
All right, so which one's more important?
Mm. In this one'syour reputational interest
and one is the financial interestof your client.
Which one's more important to you?
(25:28):
That's great.
Yeah. No, no, I statements.
I'm not challenging anything.
I'm not saying he's wrong or she's wrong.
There's no ad hominem attack.
I'm just engaging in a conversation.
Mm. Yeah.
I've had a bench here.
Tell me that the quality of your questionsdetermines the quality of your answer.
(25:48):
Of course.
And. And.
And what I did, I mean, I was did not.
The skill level that I have
now is not the skill level that I hadwhen I was trying cases
back in the seventiesand eighties and nineties.
But I did in those days
when I worked up the case,especially if it didn't matter which side,
(26:10):
because, you know, in business litigationyou can be on either side.
You never know.
But I would work up the case
and I would do a thorough backgroundcheck, investigate
sometimes using a private investigator,sometimes just lots of conference,
you know, investigate is have I neverI learned never to trust my clients.
They always lied to me.
(26:30):
And but they would work up the case.
And if I saw weakness in the caseand I couldn't
figure it out, and you go to the weakness,I go to my clients,
they explain to mehow we're going to deal with this.
And the client said, I can't.
And I said, Then we need to sell
because you can't.
Defendants.
But the client had
an ironclad
(26:50):
case or ironclad defense and had all thedocumentation and evidence to back it up.
So I just knewthere was no way we could lose this.
Then I would go to opposing counselinstead of tell you what I'm going to
I want to I want to have a conferencewith you of in-person conference.
And in those days we did that and I said,I want you to come over to my office.
(27:10):
I'm going to lay out my entire case.
I'm going to show youall the evidence that I have.
I want you to tell me I'm going to lose.
And if you can show mehow I'm going to lose,
then we can talk abouthow we're going to get this resolved
on some compromise basis.
But I'm not going to if Iif if if you can't convince me or show me
how I'm going to lose,
(27:31):
then we need to have another conversation.
And I would do that.
And it would drive counsel crazy
because they couldn't do it.
Because what I learned was the way you winlawsuits is to prepare the other side.
And I would I would out prepare everybody.
I mean, I would literallyI prepared everybody.
(27:52):
And I so I had my cases were iron typeand tell me where
tell me I'm going to lose this case.
And of course,if I have that kind of case, then
that led to a mediationor a settlement discussion.
At one time,if I had weakness, I would never do that.
My client said,
We got to settle this case, right?
(28:14):
Yeah, absolutely.
It's about knowing your case well,
and if your client wants to knowwhat's best for that situation.
So let me ask you about listening.
So I think most of us believe we know whatlistening is, but what do you think?
What do you thinkmakes for good listening?
Well,
there are two types of listening.
(28:36):
Type one listening and type two listening.
Most people engage in type
one listening,and that means that the agenda
that they have is on them.
It's the it's the it's the listener'sagenda, not the speakers agenda.
So, for example, as a lawyer,
(28:57):
I'm listening to my client.
My agenda
is to listen to the client, to see
if the information the client is giving meis information
I can see, for example, compartmentalizeand change into a cause of action.
I'm Alison. Anything else?
I could care less whether or not my clientheard or not.
(29:17):
What I'm interested in is the informationthat I'm going to be using
to create a pleadingor to create a discovery plan,
or to think about how to preparefor director cross-examination.
In that classic case,
as a lawyer, I'mengaging in listening in type one,
listening the same thing is truein ordinary conversation.
(29:39):
Most people engage in type one listening.
So, for example,you might be in a conversation
with somebody and say yourand whoever you're talking to said, Yeah,
last hourI was able to go, go out and walk my dog.
And we went out and went on a trailup in the mountains and it was great.
And I said,
Oh yeah, that's really cool.I had a, you know, two weeks ago
I was able to do the same thingwith my dog.
(30:00):
Are we listening to each other?
No, we're only talking about each
of our own experiences, but not listeningto the other person's experience.
And that's type one listening.
That's the kind of listeningthat we all engage in.
There's another kind of listening
called type two listening,which is very different
in and type to listening as the listener.
(30:22):
My agenda is to make sure that the speaker
feels understoodand validated from the speakers.
By my preference.
It doesn't mean thatI have to agree with the Speaker.
It just means that the speakerhas to feel validated and heard.
And my whole agenda is to make sure
(30:43):
that the Speaker feelsheard in terms of words
and meaning and emotion.
And so that leads us to three kindsof reflective listening
that would be used in type two listening,which is paraphrasing
core messaging and ethnic labeling.
When I engage in type two listening,
my only goal is to make sure that you,the listener, feels heard.
(31:06):
I call it listeninganother person into existence.
And when you go
through that validation process,that's the magic.
Because when you feel deeply heard,they calm down.
You build instant trust in loyaltyand in personal relationships.
You build intimacybecause they feel heard.
(31:27):
And you.
It's remarkablehow few people have ever been
deeply heard in their lifetimes.
It's so rare
and yet it's so easy to do
and it's so magicalwhen you're able to do it
and give this priceless giftto somebody else and watch them
almost tear upbecause finally somebody gets them.
(31:50):
Yeah, absolutely.
So is saying, I hear you enoughor do you think it's important to add in?
And I say that paraphrasingif I say I hear you,
am I validating what you're saying? No.
What I'm saying isit's me, me, me, me, me, me.
That's type one listening.
That's why you never utilized itin type to listening.
(32:13):
So in order.
What about know that you're being heard?
I have to reflect to you
what you saidand intended to mean and felt
so that you deeply feel
that I have heard youbecause I reflected to you what what
you've been trying to expresswith anything.
I what?
(32:34):
So you're saying that the whole intentionis to make sure that exactly
you're heard? That's right.
And you're kind of pissed off and angry
and you feel completely disrespected
and unheard,
and that's really making youanxious and scared.
And you don't you don't go into anythingabout how you feel about it.
(32:57):
Whether that's rational,irrational, doesn't matter.
Thing doesn't matter what you feel,
because that's nothow the I exactly and type you listening.
That is not the agenda.
The agenda is on you.
The Speaker What I think aboutwhy you feel the way you feel,
whether I think you're full of shitor not, it doesn't matter.
All that matters isthat you are validated.
(33:20):
And once you're validatedand your emotional center has calmed down,
now we can start to have a conversationto figure out what's going on.
Sure.
So there's a listener out therewho's probably thinking, Look, Doug,
that sounds greatfor somebody who's rational,
but the people I'm dealing withare just crazy.
I don't know that I can use this techniquewith with people
(33:42):
who are just entirely irrational.
The person who would you say to that?
Whoever says that has made a fundamental,
flawed assumption about human nature.
Here's something that most peopledon't get, and this always shocks lawyers.
When I said there is no such thingas rationality,
rationality is just this made up ideathat does not exist.
(34:06):
There is no science
to support the ideathat rationality exists.
It's not one like a science.
Furthermore,there is no definition of rationality.
I ask you, you're an educated guy like me.
What is it?
What does it mean to be rational?
Something that makes sense,something that makes sense?
(34:29):
And so how do you.
That's a subjective definition
because what makes sense toyou won't make sense to me.
So give me an objective definitionof rationality that we can use
to objectively definewhat it means to be rational.
Sure.
So something that makes sensein the context of something that you're
tryingto accomplish. For example, let's say
(34:52):
I've got
hardwood floors and I don't want peopleslipping on those hardwood floors.
So rationally it would make sensethat I don't want you, me or anybody else
pouring water or grease or oilor anything on these hardwood floors.
I would think that rationallyyou would say, yeah, that makes sense.
No, that's all emotional.
(35:13):
And you're usingand you're using reasoning
to explain an emotional decision.
Your your fear is that ifsomebody slips on the floor and gets hurt,
that they're going to get injured, whichand that may or may not lead to liability.
So you have a fundamental fear
of injury and or liability.
(35:34):
You're explaining why
you want to keep floors dry and clean
as by saying by
justifying and explainingand rationalizing whatever rationalizing
is, by saying, I don't want the liabilityor I don't want people to get hurt,
but fundamentally, what's drivingthe decision is not rationality.
(35:56):
It's emotion.
And this is somethingthat many people don't get here.
Here's the thingProg neuroscience in the last 20 years
has concluded
without question and without debate,
that human beings are emotional beings,not rational beings.
There is no such thing as rationality.
(36:17):
Now we do have critical thinking skills.
We can use logic, quantitative,
qualitative analysis, linear problemsolving, scientific method.
We got a whole bunch of techniquesand tasks that we can use.
We got algorithm.
I mean, we got a ton of stuffthat we can learn that allows us
to solve problems and engagein strategic thinking
and to analyze information.
(36:39):
Those are tools,
but they do not define human nature.
So when the person comes up and said,Gee, Tiger, you know, I listen to you
talking about listening to emotions,how do I deal with the irrational person?
I'll say to you, stop, look at stoplooking through the lens of rational pity.
Recognizethat this person is an emotional being,
(37:02):
having an emotional moment.
You can't solve emotional problemswith logic and rationality.
You can only solve emotional problemswith emotional tools.
So if you look at this personas simply having an emotion,
being a normal humanbeing with normal actions,
now all of a suddenwe can bring a new toolset
to bear on their feelingsand the behaviors
(37:25):
that result in those feelingsthat are effective.
But as long as we think that peoplehave to be rational because that's
the nature of that human nature,then we completely miss the emotions
and we only make things worse.
I'm with you. So.
So if you're dealing with people,
is it always an emotional type situationor is that then rational?
(37:49):
So, for example, if I'm building
a table, I'm building
a table with tools that seems likeit's a pretty rational thing.
I would use certain kinds of tools
because they make more senseto use than other kinds of tools.
And maybe I want to use a wrenchover a hammer
to screw in screws seems pretty rational.
There shouldn't really bean emotion to that.
(38:11):
Okay.
But so if you take a tasklike building a table,
building a table is is
based on a whole bunch of algorithms,
shortcuts and ways of problemsolving decision making.
And so the first of all,we have to make the decision
to build a tableand invest the time and effort to do that.
(38:32):
That's an emotional decision.
Once we've made the decision,now we execute on the decision.
The execution, for the most partis just going to follow the algorithms
that we've learned.
Tape measure, cut, glue,
rejoinders, you
know, then we might get into the motionsalong the way.
(38:52):
Emotional decisions around esthetics.
What kind of a jointdo I want to use on this?
How durable do I want this to be?
How much timedo I want to take building a table?
How durable is this going to be?
Those are all emotional questions,but the answer to those questions
will then
trigger an algorithm that will tell us howwe're going to process and do the stuff.
None of that is rational.
(39:15):
It's making an emotional decisionand then finding the algorithm
that helps us execute on the decisionthat we've made.
There'sno rationality involved in that at all.
You see, it's a very different mindset.
And when I teach this stuff, that's thethis is the first mindset mindset shift.
I tell people to make.
There is no such thing as rationality.
(39:37):
And when I began to do that, especiallyof course, it took me a long time
to realize all this, but I had been aa mediator for a long time.
And when I finally beganto get these insights,
all of a suddenwhen I walked into a mediation
and I saw people behaving before,I would say, that's just your rational.
These people are crazy.
What are you thinking today?
I'm just being emotional,
(39:59):
so let me walk into that, their emotions.
Let me walk into that mess emotionallyand help them
sort it out at an emotional level.
And when I do that, everything calms down
and people are able to fix their problems.
Once they become oncetheir emotions have been de-escalated.
You know, I used to in the earlydays, I'd have mediation that would go for
(40:22):
12 hours, 15 hours a day.
Today, I rarely have a mediationthat last more than 5 hours.
And I don't care how much is at stake.
Mm mm.
Because I recognize the emotionality,I deal with it.
That frees people up to
people can solve their own problemsonce they get around the emotions.
Right.
So how does a listener use thisnot from a mediation technique,
(40:47):
but from a negotiation techniqueor a negotiation perspective
where they're looking toto win on something or acquire
something as opposed to trying to forceboth sides to resolve a dispute.
It's going to a lot of it'sgoing to depend on the type of negotiation
I would
(41:07):
is this a distributive negotiationor is this an integrated negotiation in?
Other words, are we
are we arguing over positions,how much money's going to get paid,
or are we trying to satisfythe underlying interests, needs, goals,
desires, which is called an interest basednegotiation or integrative negotiation?
Part of it'sgoing to relate to the relationship
(41:29):
you have with the peopleyou're negotiating with.
What's your are you strangersor do you have a relationship with them?
Part of it is going to involvethe stakes of the negotiation.
How important is this
and all of those factors?
Again, those are all available.
So it's they're all emotional.
Every single one of this is emotionalprocess will dictate
(41:51):
how you're going to approach
the negotiation.
If I want to negotiate with a six year old
who can be very stubborn and say no,
then I'm going to approachthat six year old
at a deeply emotional level.
It really upset you, really frustrated.
(42:12):
You don't feel heard.
You don't feel like you're in control.
Yeah. Okay.
So what do we needto do to solve that problem
or somebody could say,
I want X, I want the top floor office,the corner office, and I want a new car.
I said,All right, if you go up the top floor
of the corner officeand you got the new car,
(42:34):
what would be all the good thingsthat would happen to you? And
so I get out of the positionand start looking
at the underlying intereststhat they need, that they want.
Well, I want to be recognizedand I want to be seen as top dog.
And I want you know, I want to beI want to be rewarded for who I am.
And I want people to know that I'myou know, I'm the I'm the top got.
(42:55):
So you're looking for validation
and you're looking for recognition.
And right now you don't feel heard,you don't feel appreciated.
You don't feel supported.
Yeah.
And what you want is to be validated,
supported, appreciated and recognized.
Yeah.
And you want it done in a waythat is meaningful to you
(43:17):
so that you feel like you've gottenyour just desserts.
Yeah. Okay.
How do you think we should go about doingthat?
Mm hmm.
Notice how I moved
away from the corner office in the carand got them into what they really want?
And I've never utilized in
(43:37):
now one.
You got them right.
You got them into what they want based onthe the emotions, you got to the core.
The deep reason as to why that's how you
that's that is a very fundamentalnegotiation strategy.
Why yeah you
know I don't ask whybut tell me more about that.
(43:57):
Tell me, tell me, tell me more aboutwhat are all the let's suppose
you got what you wanted.
What would be all the good thingsthat would happen to you in your life?
How would this change your life?
And then what way?
And by them telling youthat they've told you what they value.
Right?
And now, nowwe now we get into your process of, okay,
(44:18):
how can we take your
how can we satisfy your interestsin a way that really has meaning
rather than your suggested solution,which is nothing more than your position.
You're demanding $1,000,000 fine.
That's just a position.
So it's just a recommended solutionto the problem.
But what do you reallywhat really do you need?
(44:39):
What are your real interest?
Interest needs, goals and desires.
And a lot of times,I mean, from crisis to justice.
I love the name of your show.
What people will say I want $1,000,000with the really saying is
I want the sense of injusticethat I'm experiencing to go away
and they're using money as
(45:00):
a measurement of justice.
The problem is, of course, that
even if they win and they get a bucketof money, they still feel the injustice.
Have you ever had this experience, Parag,you won this case.
It was a tough case.
You did it.
You were brilliant, legally brilliant.
You did an amazing job,
(45:21):
got a far better resultthan anybody ever expected.
You walk out of the courtroomand the client's pissed at you and say,
I'm not paying you.
I just got what I was supposedto get in the first place.
I don't knowif you ever had that experience.
Oh, yeah, I do.
And you're looking yourself, man.
I just burned up 60 hours a weekfor the last ten weeks.
Put my body on the line for you,Sacrificed
(45:44):
my family lifeto get this incredible result.
And you're not happy.
You seen that before, haven't you?
I felt that before, absolutely.
And what's happenedis that people have conflated
winning in court
with the sense that they're going to havea sense that they got some justice.
(46:06):
And that doesn't happen.
That's why I tell people,legal system is not about justice.
No court will ever guaranteeyou substantive justice.
Do not expect the courts to be fair.
Do not expect the process to be fair.
What we hopeit's going to be fair in certain ways.
But don't expect the outcometo be a fair outcome.
The outcome is a tossup. It's a coin flip.
(46:27):
We don't know what's going to happenand there is no guarantee
that the outcome is going to make you feellike you got a just result.
And in fact, nine times out of ten,
you're going to feel like no matterwhat happens,
it was an unjust result because you'regoing to have to spend a half a dollars
in legal fees to get to the placewhere you think you should be.
(46:47):
So you're never going to be madewhole on this.
You're never going to feel likethere's justice, Never.
And my job is not to deliver justice.
My job is to prosecute your case in court
and let a decision makereither a judge or a jury, decide
what should happen under the rules of lawand the rules of evidence.
And that's the end of it. Just a decision
(47:09):
has nothing to do with justice.
I'm just shockedwhen you have that conversation with them.
That's a rough conversation, Doug.
I will say that you have to have
the majority of the time crazyto have that conversation.
Well,
it's the rarity that that one offclient is super upset at the end.
(47:30):
It doesn't really believe thatyou really did as much as you did for them
that this was coming all alongbecause this is the right thing.
And I'm gratefulfor everything you've done.
Those are luckily you get those rare.
You absolutely get those.
Don't get me wrong, I'll I'll justtell you a story, a war story of mine,
my partner and I
(47:51):
defended a very large companyin a construction arbitration,
and it was like a four week arbitration
involving millions of millions of dollars.
And we did the very best we could,and we had a pretty good case,
but it wasn't a slam dunk.
The arbitrators can decideany way they want before the hearing.
(48:11):
So we took our clients outside and said,Is there anything
that we haven't presentedthat we need to present?
Are you satisfied
with the way that we presentedthe evidence in the arguments you've made?
And they also man,you guys were brilliant.
Of course we lost the case
and the client comes in.
I'm so disappointed in you guys.
(48:31):
You just.
You were crap.
And we're not doing businesswith you anymore, you know?
How do you respond to that?
You just shake your head and say, man,
you know,
what they were looking forwas something that couldn't
be delivered,
(48:52):
that it was too many of those experiencesthat really drove me
out of the practice law saying, Well,how would you deal with that?
Now, with the skill set you've got?
Well, you know, would you say I wouldn'tI wouldn't set myself up
to I wouldn't set myself upas a trial lawyer to be in that position.
I would be having these conversationswith my client early on in my case.
(49:13):
So what are you really looking for here?
I said, Your claim is going to bedependent upon three arbitrators
and it under the construction rules,the American administration subject,
and it's going to be a beauty contest.
And the other problem we have
is that these arbitrators are dependentupon repeat players.
Their business and the repeat playershere are much bigger than you are.
(49:36):
So there'sgoing to be a bias going into the system.
They're going to be more biasedtowards this massive company
that has a lot of construction arbitrationcases going all over the country.
They're going to be automatically biasedtowards that, towards
that partyunless you've got overwhelming evidence
that that where they're compelled
(49:58):
to, even thoughthey don't want to rule that way
and you don't have that kindof compelling evidence, you've got a case.
But when you're lookingat the bias of the system,
it's not a biasthat you're going to overcome.
So what do you want?
That's the kind of conversationyou have to have.
You have to have a case
(50:19):
discussion early on before you startspending a lot of money in discovery.
And we're going to havethese conversations with our clients.
Right.
And I learned the hard waybecause I was afraid to do that.
Well, you know, it's it's a mixed bag.
I've had the conversationswith the clients. We always do that.
Like litigation is risky.
There's no guarantees in litigation.
Of course, juries or arbitratorsor judges can come back.
(50:43):
Some some completely different wayfrom what you expect.
Sometimes it's really favorably,other times really unfavorably.
You don't know.
You can control your oddsto a certain extent, but you can't.
You can't. Exactly.And we all have that conversation.
But I've learned over the yearsthat when we start
when we have that conversation,the clients are not listening.
They're discounting everything we say.
It's called reactive devaluation.
(51:06):
They believe their case.
They've got all kinds of confirmationbias coming in.
Reactive devaluation,
all kinds of cognitivebiases are coming in
and they're discounting everythingthat you say.
You said, Yeah, but yeah, but yeah,
but yeah,but that's what's going on in their head.
Yeah, but not me.
Yeah, but not me. Yeah, but not me.
Not hearing it
(51:27):
because they're emotionally invested
in something that the case, but really
the underlying emotions of the conflict,they've been betrayed
or they feel like they've been suffereda deep and abiding injustice
and all of that underneathisn't are emotional
that are drivingand to filter the information in a way
(51:50):
that they discounteverything that the lawyers say,
even if you put it in writing,which we all do, doesn't matter.
That's true.
Although there's then the riskthat the client says, look,
you don't believe in my case.
I've had that come up
where you tell themobjectively, Look here at the issues here.
The challenge is,
hey, you don't believe in my case, andthen they'll just go hire somebody else
(52:12):
and that person'sprobably going to be worse off.
That's right.
They're probably the worst lawyerfor their case, you know, So a client,
if your client comes in and says, well,and you give them up,
you get them working,you say you don't believe in my case
and you say it'snot my job to believe in your case.
It's my job to take the evidencethat we can marshal
(52:34):
and put itinto a judicially cognizable form.
So that's admissible.
And then from that evidence, argue
that somebody owes you a lot of money.
That's my job.
I don't believe that.
Actually, there's nothing to do with this.
It has to do with that sounds cold.
(52:54):
That sounds cold.
You have to be that way.
And I'll do everything I can to do that.
All of that for you.
But it's not about believing in youor believing in your case and thinking
you've got some righteous causethat's all emotional.
And cases are not about emotion.
They are.
(53:14):
But when you're analyzing
what the situation is, we use
ways of thinking that we're trainedas lawyers to think, to look at
and anticipate how a judge or a jurymight might evaluate and weigh the facts.
And it allit always comes down to emotion.
But we want
to try to look the emotions in our favor,if we can,
(53:35):
but recognize that at the end of the day,it could tilt the other way.
And we we have we can controlhow we present the evidence,
but we can't control the actual decision.
We cannot.
Yeah, Yeah.
You know, and what you're sayingconfirms the suspicion that I've long had,
which is essentially people really do make
(53:58):
emotional decisions,but they justify the exact logic.
So the decision is made and then they,like juries, do the same thing.
And so there's a whole there's a wholetheory of like the reptilian theory,
which is not like you hear anybodyyou start talking about reptilian brain,
just stop listening them.
They don't know what they're talking aboutthat explain why that that goes back
(54:20):
to the 1950s with a researcherat the National Institutes of Health,
the guy by name of Paul de McClain.
He was a he was a neuroscientist studyingbasically studying brain.
He was an early neuroscientistback in the fifties.
And he came up with this theorycalled the Triune Brain Theory.
And what he what his theory waswas the human brain
(54:41):
evolved in three stepsthe reptilian brain,
the paleo mammalian brain,and then the neo mammalian brain,
because he saw as he looked at animals,all kinds of vertebra he looked at,
he just saw this developmental processand it looked to him like, that's true.
It turns out there is zero scienceto support any of that.
And so but itsticks because it's easier to understand.
(55:04):
Oh, yeah, reptilian brain,
paleo, mammalian brain, neo mammalianbrain now makes perfect sense to me.
Believe me, the human brainis far more complex than that.
And that is not the way that our brainsevolved in the first place.
But just like Freud,he came up with a kind of a simple list
of simplistic, easy to understand thingthat people could glom onto.
Just like Floyd Freud was totally wrong.
(55:24):
There's nothing that Freud saidwas ever correct.
None of his work has everbeen scientifically proven.
But his thinking is still inpop psychology Today.
And this same thing with Paul McClainand his work was discredited in the 1960s.
And yet he's we still
we still hear this stuff.
So whenever I hear the reptilian brain,I say, You don't know what
(55:47):
you're talking about.
And I'm I mean, I'mnot going to listen to you anymore.
Yeah. So.
So you agree with this idea that people
make emotional decisionsand then justify them with logic?
It sounds like, well,this component of my brain, whether or not
they use logic or not, because most peopleare really poor logicians.
(56:07):
I mean, they don't know they don't know
the differencebetween deductive and inductive logic.
They mix and match standards in
in deductive logic,the standard is invalid or invalid.
Is the form valid or invalid?
If it is valid,then that means the conclusion.
If assuming the premises are correctand then the conclusion is
has to be correct, which is very narrow.
(56:29):
And then in inductive reasoning,we we, we measure an inductive argument
by whether it's weak, moderate or strong,
and we're looking for the hundredsof logical fallacies
that can be introduced into inductivereasoning that tend to make an argument
weak or moderate.
So most people don't know this stuff.
They've never studied logic,
(56:50):
and so they just use this sort of falselay idea of logic,
which is it's a tool
and they don't and they improperly applythe tools in their situations
as a way of explaining why they have madethe emotional decision that they've made.
Okay.
Yeah,and this is probably the last question
(57:13):
I can talk about.
Is there a difference?
Yeah. Yeah, I could with you.
I mean, I love this stuff. So.
So let me ask you, is there a differencebetween rationality and logic?
Because if you're saying, look,there's no such thing as rationality,
then that would also then have to meanthat there's no such thing in logic.
But it sounds like,you know, logic is a tool, right?
(57:35):
Rationality is not a tool.
I mean,if you really want to get technical,
if there was such a thing as rationality,it would be an outcome that we could
then this is a rational outcomethat is a non subjective
outcome that can be objectively measured
in some way to say this is rationalas opposed to emotional.
(57:56):
But we can't do that.
We can use logic as a way of looking at
information, facts, evidence,
and we can use logicto help us understand,
in the case of deductive logic,whether or not it's a valid argument.
We're looking at the form of the argumentor in the case of inductive logic,
(58:17):
which is what we do as lawyers,whether we've got a strong
moderate or weak argument
based on the rules of logic that we learn
as a tool like a hammer or a nail.
Critical thinking, same thing,
scientific method, same thing,qualitative quantitative analysis,
same thing, linear problem solving,same thing.
The tools, the tools that we learn,
(58:39):
learning, algorithmic problem solvingversus other kinds of problem solving.
Same thing algorithms, for example,learning how to count to ten.
One, two, three, four,five, six, seven, eight, nine, ten.
That's an algorithm.
The set of rules.
And we start learning these out,the simple algorithms as children.
And then as time goes on, we get more andmore complex in our algorithmic thinking.
But it is not rationality.
(59:02):
These are two basic tools for problemsolving.
So, Doug, if people want to learn more
about this, your work,how can they find you?
How can they hear you talkingmore about this?
I've got a YouTube channel.I got two new TV channels. Really?
So you could go to just you can Google
my YouTube channel is Douglas NewellYouTube, YouTube?
(59:24):
Douglas No.
And the other oneis the power of emotional competency.
So you can Google those.
My website is Doug Noel.
Audio Eugene Noel ELLE.com,which has a huge amount
of informationof what we've been talking about today.
And I'm a sole practitioner herein central California
that you can reach out to me.
I answer all my ownemails, Doug, Doug at Doug Noel,
(59:46):
Theology and Hotels.com,I don't answer all my own emails.
I'm happy to chat with anybodyabout anything I've been talking about.
And I take I love the skeptic.
So if you're skeptical about whatI've been talking about, they bring it up.
Let's talk.
Yeah, start a debate.
So I love it.
So to the listeners,thank you so much for joining me today.
(01:00:06):
I mean, obviouslyyou can use many of these tools,
if not all of these toolsthat Doug has mentioned today
to effectively navigate your crisesand turn them into justice
if you haven't already,make sure you subscribe.
So, you know, when the next episode dropsand you can hear from incredible guests
like Doug Noel to help you throughoutyour life, to help you with your business.
So thanks again and thank you again
(01:00:29):
for joining today and sharingsome of your hard earned wisdom with us
all.