May 25, 2017 Articles

Gaslighting in Litigation

By Alyson A. Foster

Everyone says there are two sides to every story. Court is your chance to tell yours. Plenty of people want their “day in court” for, they say, just that purpose. (That is rarely true. Most litigants want what they think is justice, or, in business litigation, to win money or to lose less of it.) As an attorney, it is in fact your job to tell your client’s story in the best way possible and in accordance with the rules of procedure and evidence. Those rules aim to make the storytelling process a fair one, and they roughly work. But the litigation process can be long, and the journey to your client’s day in court requires you, as the attorney, to tell many stories along the way—often without formal rules to govern you or, more importantly, to govern your opposing attorney.

More often than I’d like to admit, I have found myself standing in court dumbfounded by opposing counsel’s recitation of facts and events. As a newer attorney, I often felt uncertain how to respond to these more seasoned attorneys who spoke with such authority. I knew that what they said was not exactly what happened, but they spoke in a way that sounded right. For example, an opposing attorney might tell the court a story about our discovery process and what led to the motion to compel he filed. He tells a story about how I did not return his calls, or refused to cooperate, or took a position that was untenable. And it is not true. But he tells it with such force and calmness, I begin to wonder if I’m wrong, if perhaps I made a mistake and did not conduct the process correctly. There is so much pressure to be right—felt so keenly at all stages of our careers—and so much potential to make a mistake, it becomes easy to doubt ourselves and wonder if we did screw up.

We didn’t screw up. We got gaslit.

“Gaslighting” is a manipulation tactic made famous in the 1930s stage play and 1944 suspense thriller Gaslight. In the movie, the woman, played by Ingrid Bergman, marries a man who quickly embarks on a campaign to make her distrust herself and her perception of reality—and ultimately to make her feel crazy. He does this as a way to disempower her, so he can find and steal her valuable family jewels. He makes the (gas)lights dim and brighten inexplicably. He makes noises in the attic, moves paintings, and generally changes, subtly but effectively, her surroundings. He denies that any of it occurred and tries to make her distrust her experience, herself, and, ultimately, her sanity.

Mental health professionals recognize gaslighting as an abusive, even bullying, tactic, more often used against women than men.

Effective gaslighting can be accomplished in several different ways. Sometimes, a person can assert something with such an apparent intensity of conviction that the other person begins to doubt their own perspective. Other times, vigorous and unwavering denial coupled with a display of righteous indignation can accomplish the same task. Bringing up historical facts that seem largely accurate but contain minute, hard-to-prove distortions and using them to “prove” the correctness of one’s position is another method. Gaslighting is particularly effective when coupled with other tactics such as shaming and guilting. Anything that aids in getting another person to doubt their judgment and back down will work.

George Simon, “Gaslighting as a Manipulation Tactic: What It Is, Who Does It, and Why,” Counseling Resource (Nov. 8, 2011).

In litigation, the attempt to control the narrative can sometimes bleed into a form of gaslighting that undermines less-seasoned attorneys. An older attorney will tell the court, in a calm and culturally credible manner, a version of events that so differs from your recollection that you may begin to doubt yourself and fumble in your response. Often, there is a kernel of truth to his story or parts of it, but minute distortions create a false impression that disfavors you, your client, or your case, and that makes you doubt all of the above.

This is a normal experience. You did not make a mistake. You can trust yourself and your experience. You can respond and maintain your story, your credibility, and your confidence. Here are some suggestions.

Know the Facts
This is always the first piece of advice. Unless you have the confidence and uncanny ability to wing it (and even then), prepare yourself for every hearing by refamiliarizing yourself with the procedural history, the facts that are known, the facts that are unknown, and your communications with opposing counsel. You cannot respond to a narrative unless you know the competing narrative. Do not expect the court, or opposing counsel, to know or understand the case the way you do. Study the docket. Review your prior communications with counsel—print them out and make a timeline if you need to. Reread the pleadings and the briefs. Identify what is known and what is not known. If it is a discovery dispute, study the communications that led to the dispute. If you know the facts, you can tell your story and correct any distortions.

Use Your Emotions Wisely
Be the reasonable one. The court is looking not only at the merits of the dispute, but often, either intentionally or subconsciously, also at the relationship between counsel. It behooves each attorney to present herself as the professional, communicative, and reasonable one, and when appropriate to paint the other side as uncooperative, uncommunicative, deceptive, or otherwise unprofessional. Older attorneys will calmly tell the court a story in which you were unreasonable: “She has never raised this argument before, Your Honor,” even though you had in a phone call or email; “I would have been happy to resolve this issue directly with opposing counsel without involving the court,” even though you had left him an unreturned message on the issue; “she did not provide us enough time to engage our expert or respond to this issue,” even though you had.

You will become indignant and exasperated. You should. But do not show it. No matter how angry you may feel, stay calm and speak respectfully of your opposing counsel—even when pointing out errors he has made or unprofessional conduct he has engaged in. Your endgame is to present yourself as professional, calm, prepared, and correct.

Preserve Your Record
Litigation is about both the finish line and the journey to it. You certainly need to know and understand the primary issues in your case and what will be important to prove or disprove at trial (or summary judgment), but you also need to engage meaningfully and attentively with the communications and negotiations along the way. This includes pretrial conferences; meet-and-confers regarding discovery issues; communicating with opposing counsel about the case schedule; arranging site visits; attending depositions; providing documents; serving the right people; and more. The most effective method of preserving your record is:

  1. Be respectful in every single conversation and email.
  2. Respond to all communications within 24 hours. Do not be afraid to call someone back if you do not know what she wants or what you will say. The most important thing is to respond; if you need to say “I don’t know yet, let me look into it and I will get back to you,” that is perfectly fine.
  3. If you reach an agreement as to any issue on the telephone, follow up with a confirming email. “It was good talking to you today. Thank you for agreeing to extend the plaintiff’s deadline for serving documents to [date].” “I am writing to confirm our conversation today that you will provide us with your list of deponents by [date].” Do this every single time.

This approach not only ensures that you have created a record you can defend, it also undermines any attempt opposing counsel might make to distort the record—how can he, when you’ve created and preserved it?—or to paint you as the unreasonable one. When you do this, opposing counsel is almost always constrained to adhere to the narrative you have created. I have even had opposing counsel begrudgingly admit to the judge in chambers that I was “direct” and “professional”; this strengthened my credibility in a small-town court where I was the outsider, opposing counsel knew the judge socially, and I was the young woman in a room of older men. In contrast, when you fail to preserve the record, opposing counsel can convince the court that your “unresponsiveness” and “lack of cooperation” was the reason everyone had to come to court in the first place. (He’ll be wrong, but you have not preserved the record.)

Correct the Record
You will feel compelled to correct the record, and you should. The danger of correcting the record is that you may veer off course from the important issues and become defensive about what likely are smaller issues not actually relevant to the case. The most undermining aspect of gaslighting is its focus on the “little things” that seem too small to warrant attention but that effectively erode our confidence. Dimmed lights become a failure to cooperate. (“I offered several dates for deposition, but opposing counsel only agreed to one.”) A moved picture becomes a failure to provide information. (“They have never explained why these documents are relevant.”) These seemingly little things are not the point of the hearing, but they create a subversive narrative. Responding point-for-point, however, risks diverting the court’s attention from the primary issues before it or conveying a defensive, protesting approach that belies your true professional nature.

There are various ways to handle this. For me, the most effective method is to tell the court calmly, but forcefully, that opposing counsel is wrong, but we have bigger fish to fry. For example:

  • “We have a different recollection of our conversations.”
  • “I appreciate counsel’s position, but mine is different.”
  • “Counsel and I differ as to how we got here today—I did provide notice, etc., and I’m happy to provide details if that would be helpful—but the real issue here is [the subject of the actual dispute].”
  • “I am somewhat surprised at counsel’s recitation of facts/history/communications. My recollection of them is very different, but I do not want to distract from why we are really here today.”

Trust Yourself
Trust yourself. Recognize what they are doing and stay calm. If you know your case, preserved your record, and know why you’re in court today, you are armed. You will correct the record as appropriate and return focus to the important issues for the court and your case. You have prepared and you know what you are doing.

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