Gaslighting in Litigation
Jun 20, 2017
by Alyson A. Foster, Of Counsel at Andersen Schwartzman Woodard Brailsford, PLLC
Originally published in the May 2017 issue of the American Bar Association’s
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.