We’ve written a lot here about the leading traits of effective litigators and the growing role that aspirational values such as professionalism and civility might play in a successful litigation practice. Articles on the need to be reasonable during discovery disputes, on the ways in which a litigator might be responsible for a client’s disrespectful behavior during depositions, or the circumstances in which aggressive advocacy might violate ethical guidelines discuss litigation trouble spots in their particular manifestations. For example, lawyers who demonstrate disrespect for opponents by belittling them during depositions, or by wasting their time with spurious objections and dilatory tactics.

There’s a common thread that runs through all of these cases, however. They all evince a lack of emotional intelligence. In each case, the lawyers involved are falling victim to the emotions of the moment, or failing to grasp the ways in which emotions are steering them toward behavior that is not constructive, not lawful, or ethical, and not likely to lead to an outcome in the client’s favor.

Lawyers with high emotional intelligence have more profitable practices and are less susceptible to lapses in ethical judgment that put them at risk of disciplinary actions.

It’s been said that litigation is merely human interaction in emotionally evocative circumstances. If that’s the case, then lawyers who can understand and cope with emotions have a tremendous advantage over those who don’t and can’t.

Experts break down the concept of “emotional intelligence” into four main competencies:

• the ability to perceive emotions from available evidence such as a person’s body language, tone of voice, or the guardedness/evasiveness during depositions
• the ability to understand emotions and how emotions impact the behavior of participants in typical litigation situations like depositions, jury trials, and settlement negotiations
• the ability to use emotions in a way that enhances decision-making and trial strategy
• the ability to manage emotions, whether these emotions are the lawyer’s own or others, in a way that helps achieve litigation goals

It’s easy to see how emotional intelligence can be a critical attribute for professional success in litigation. Emotional intelligence is relevant to deposition practice in several important respects. Lawyers with high emotional intelligence:

• are attuned to signs of nervousness or defensiveness in clients and witnesses and will take constructive measures to defuse these emotions
• possess an awareness of the ways in which their own emotions (e.g., nervousness, hostility toward the opposing counsel, party, or witness) might impair their ability to ask questions that elicit the best responses from deposition witnesses
• are better able to recognize and mitigate the ill effects of intimidation tactics that opposing counsel might use to derail deposition questioning
• understand how emotions such as ego, guilt, defensiveness, or fear of monetary liability might be shaping a deposition witness’s testimony
• know which facts and emotional narratives juries need to hear in order to rule in their client’s favor
• listen closely to the views of others, thus opening possible avenues for negotiated outcomes
• demonstrate an ability to grow and learn from mistakes

These traits are not often taught in law schools and are rarely sought out by law firm recruiters. Yet lawyers with high emotional intelligence clearly have a professional advantage because they are armed with insights that can help overcome many of litigation’s most common stumbling blocks.

Fortunately, emotional intelligence can be developed. Litigators who are interested in learning more about how emotional intelligence can enhance their practices and improve client outcomes might consult Beyond Smart: Lawyering with Emotional Intelligence, by law firm consultant Ronda Muir, published by the American Bar Association in 2017. Muir argues in her book that lawyers with high emotional intelligence have more profitable practices and are less susceptible to lapses in ethical judgment that put them at risk of disciplinary actions.

According to Muir, studies have demonstrated that lawyers with high emotional intelligence are better able to acquire and retain clients. Emotional intelligence also makes lawyers better collaborators, a trait that has been shown to lead to higher law firm revenues.

Finally, there has been a great deal of attention among bar regulators to the role artificial intelligence will soon play in the delivery of legal services. Without a doubt, artificial intelligence promises to empower some lawyers and replace others. When these relentlessly rational and efficient technologies take root within the legal profession, lawyers with high emotional intelligence – those who possess the ability to sense and manage emotions during deposition or trial or client interactions – will continue to be in high demand. In fact, high emotional intelligence may very well become the paramount professional attribute for a successful legal career in the not-too-distant future.

The most compelling response to the growing dominance of thinking machines in law practice might be, ironically, for lawyers to become even more human.