Under some circumstances, the ABA’s Model Rule of Professional Conduct 1.13(b) requires counsel for an organization to “refer” the unlawful and damaging behavior of that organization’s agents to “higher authority in the organization,” possibly all the way up to the board of directors (or its equivalent).
That is sometimes referred to as “reporting up” (as opposed to the lawyer’s “reporting out” information, under Model Rule 1.13(c), to law enforcement, regulators, or other authorities).
It is also known as “escalation.”
Even more important, both personally and professionally, to law students (and teachers) and to lawyers are “de-escalation” techniques, to defuse an encounter with a confused, disturbed, aggressive, hostile, and/or potentially violent person (possibly a complete stranger, in a random interaction), particularly when merely ignoring him is not a practical option.
The New York Police Department, in a 2016 Patrol Guide, defined de-escalation as “[t]aking action in order to stabilize a situation and reduce the immediacy of a threat so that more time, options, and/or resources become available. . . . The goal is to gain the voluntary compliance of the subject, when appropriate and consistent with personal safety, to reduce or eliminate the necessity to use force.”
For a member of the general public—who is probably not trained, specially equipped, or otherwise prepared to use force—the immediate goal of de-escalation might be simply to extricate herself (and possibly others) safely from a potential or actual physical threat (and then, perhaps, to alert authorities).
In some professional contexts, lawyers might have an initial goal of calming a client, colleague, or opposing party or counsel, and an ultimate goal of successfully resolving the client’s legal matter.
Yet, especially in the absence of bystanders who might intervene, or call for help, how can a person use just her words and body language to effectively “stabilize a situation”?
There appear to be few mainstream books that directly address this topic.
The following is not a personal endorsement, but simply a summary, of some of their recommendations.
In Words of Power: A Guide for Ordinary People to Calm and De-Escalate Aggressive Individuals (2018), the crisis intervention trainer and martial artist Ellis Amdur identifies as “the most important technique for calming angry inviduals” paraphrasing their remarks, to indicate that you understand (without necessarily agreeing with) what they are saying. “It is important that your voice is strong and calm. You speak to the individual as someone who has the power within to take care of his/her problem. . . .” Paraphrasing is also the focus of lawyer and mediator Douglas E. Noll’s De-Escalate: How to Calm an Angry Person in 90 Seconds or Less (2017).
Amdur advises against asking questions of a very angry person (which might frustrate him by suggesting that you don’t understand his concerns), and also against allowing people to “vent” (“When a person shouts, yells, complains, or kicks things, they are stimulating themselves to greater and greater aggression.”).
He suggests making eye contact with the person (and, if unnerved by that, looking instead at “the center of their forehead”); standing at an angle to the person rather than head-on; and, keeping hand gestures to a minimum (because they might be construed as an attack). Amdur provides instructions for two different methods of “circular breathing,” to manage one’s own emotions during, or when anticipating, a crisis.
(A more specialized and detailed version of this material appears in Amdur’s The Thin Blue Lifeline: Verbal De-escalation of Mentally Ill and Emotionally Disturbed People- A Comprehensive Guidebook for Law Enforcement Officers (2011), co-authored with John Hutchings, Chief of Police of the Tenino Police Department in Washington State.)
Also relevant to de-escalation, particularly in an atmosphere where reasoned discussion of the other person’s options can be conducted (or at least attempted), might be some of the methods employed by law enforcement’s crisis negotation teams.
In Negotiating Like Lives Are on the Line: The Essentials of Crisis Negotiation for Use in Everyday Situations (2022), crisis negotiator Jonathan Pultz emphasizes, beyond remaining calm, establishing and assessing rapport by mimicking the gestures, other movements, and body language of the person you’re talking with.
This “mirroring” technique is also referred to briefly in former Special Agent Christopher Whitcomb’s Cold Zero: Inside the FBI Hostage Rescue Team (2001), in the context of conducting inteviews: after asking “an open-ended question, the kind that can’t be answered with a yes or no, [l]et the person talk. Mirror his behavior without being obvious, affirm what he says with a nod of the head or a subtle smile.”
Pultz advises, “If you are a man and are negotiating with another man, try standing or sitting offset during the conversation” to lower tensions, but “[i]f you are a man and your counterpart is a woman, . . . facing one another seems to have a more desirable effect. Women seem to be more comfortable negotiating in this situation.”
Pulz “highly recommend[s]” Never Split the Difference: Negotiating As If Your Life Depended On It (2016), by Chris Voss, a former lead international kidnapping negotiator for the FBI, and the former lead crisis negotiator for the FBI’s New York City division.
In Voss’s own technique of mirroring, presented as “a conversational Swiss Army knife valuable in just about every professional and social setting,” one adopts a “late-night FM DJ voice” to say “I’m sorry,” and then to repeat in an “inquisitive tone” the key phrase of the other person’s statement.
Voss’s “labeling” approach involves “detecting the other person’s emotional state” and then summarizing, “It seems like. . . “, “It sounds like. . .” or “It looks like. . . .” (Noll, by contrast, recommends “the short, declarative ‘You’ statement,” such as “You are angry.”)
His “calibrated questions” (such as, “How am I supposed to do that?”) suggest “that you want what the other guy wants but you need his intelligence to overcome the problem.” (Similarly, Amdur suggests such “open ended questions” as, “What do you think can be done to fix this?”)
Lawyers should remember that Model Rule of Professional Conduct 1.6(b)(1) permits (but does not require) counsel to reveal otherwise-privileged information “to the extent the lawyer reasonably believes necessary. . . to prevent reasonably certain death or substantial bodily harm,” presumably including to the lawyer herself.
Official Comment 6 to that section elaborates, “Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat.”
