It’s a shame that Joel Chandler Harris’ Uncle Remus books are considered racist nowadays due to their trickster tales and use of plantation-era African American dialect. Throughout history the powerless have often used patois or pidgin speech to communicate in a manner that the powerful cannot understand. Further such trickery can be used to make the powerful think the less powerful are doing their bidding when they are actually having their own way. What is now found offensive in the br’er tales are actual fables of the less powerful using their wit and wiles to gain some measure of control over their lives without the powerful catching on. Often these victories are gained at the powerful’s expense, making such victory even sweeter.
One of my favorite of these br’er tales involves the day Br’er Fox catches Br’er Rabbit. Since Br’er Rabbit spends his days mocking Br’er Fox and eluding capture (think Bugs Bunny and Elmer Fudd) when Br’er Fox finally catches Br’er Rabbit he not only wants to eat him, he wants to torture and torment him first. Br’er Rabbit tricks Br’er Fox by pleading with Br’er Fox to do whatever he wants to him but “don’t throw me in that briar patch!” Br’er Fox, being much bigger than Br’er Rabbit, sees the briar patch as a tangle of thorns, a place to be avoided. But to Br’er Rabbit the briar patch is a refuge, a place to hide from larger predator. Br’er Fox, perceiving Br’er Rabbit’s pleading from his own perspective, and not from Br’er Rabbit’s perspective, does what Br’er Rabbit “begs” him not to do and tosses him into the briar patch. Through Br’er Fox’s failure of empathy, Br’er Rabbit effects his escape.
Br’er Rabbit’s insight, that one can get one’s tormentor to do one’s bidding by making that tormentor believe that one’s desire is the opposite of what it actually is, can be applied in many areas of life, including the practice of law. Most attorneys are loath to fire a client–even when that client is particularly disagreeable–because it breaches our sense to duty to not terminate representation until the matter is completed. I have had many a Br’er Rabbit moment when some particularly unpleasant client decides to retain new counsel.
One can sometimes encounter such thrown-in the-briar-patch moments when dealing with opposing counsel. Often other attorneys have thought I was doing them a favor agreeing to a requested continuance when the delay did nothing but benefit my client. In letting opposing counsel think I was being helpful, rather than strategic, in agreeing to the continuance, I retain the ability to request a similar “favor” in the future.
More on point, when making suggestions to a notably disputatious opposing counsel, I often start by offering acceptable, but not preferable, options with the expectation that these options will be rejected. I can then follow up with my preferred options and opposing counsel, thinking that I am offering options I find merely okay, often accepts them. Many a guardian, mediator or joint expert has been selected on this strategy. Of course, since my empathy skills aren’t the greatest, I am sure other attorneys have used these Br’er Rabbit mind tricks on me.
So zip-a-dee-do-da to life’s thrown-in-the-briar-patch moments.