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.