The Empathy Deficit : Why So Many Lawyers Believe Their Job is to be a Jerk

The Empathy Deficit : Why So Many Lawyers Believe Their Job is to be a Jerk

“What’s the difference between a good lawyer and a bad lawyer?

A bad lawyer can let a case drag out for several years. A good lawyer can make it last even longer.”

This definition of “good” is not quite what Doug Linder & Nancy Levit have in mind in their new book, The Good Lawyer: Seeking Quality in the Practice of Law (OUP 2014).

In fact, Linder & Levit’s taxonomy of “good lawyer” qualities might surprise you.

Beginning with #1, empathy (empathy? yes really), and continuing with #2, courage – it is a lot more potentially responsive to the SRL experience than the popular culture’s image of lawyering qualities (even reaching beyond the world of bad Internet lawyer jokes).

The following quote could come from many of the SRLs we have interviewed over the past 3 years – as well as many of the represented clients I have interviewed over the last 20.

“What clients want most from their lawyers is a sense that they really care about them and their problem.” (Linder & Levit at 7).

“They don’t care”

Many SRLs with earlier experience of representation tell me that they saw only instrumentalism or worse, pecuniary self-interest in their lawyer’s attitude towards them.

While this assessment may not always be fair or accurate, the absence of empathy from their lawyers means that clients fill the void with negative attributions. And if we give them nothing else to fill it with – we should not be surprised by this?

No matter how often I hear this, it always makes me feel upset and frustrated. Why?:

  • Because it does not have to be this way if we really faced up to the tension between formal legal adversarialism and client problem-solving. Or between so-called professional objectivity, and caring about people and their lives.
  • Because I can imagine that some of the lawyers I am hearing about do really care, but they often don’t know how to express it in a way that they feel is “safe” or “appropriate”. We should be teaching them how to do this and reassuring them that empathy is a good quality for a lawyer to have and to hold on to.
  • And because the “they don’t care” refrain is even more damaging – and universal – in the public discourse around lawyers than “bottom feeder” style lawyer’s jokes (as in … – alright, maybe I shouldn’t repeat that one, see above for the general idea).

Zealous advocacy – and just being a jerk

The epithets most often associated with lawyers in the popular culture (look at films, books…and how many lawyers market themselves) are adversarial – warrior, gladiator, fighter, resolute, strong, determined.

In the 19th century the practice of law was something gentlemen (yes, only gents) offered to those deemed deserving of their service and advocacy – in these times lawyering was a hobby for the wealthy, a kind of charitable patronage of good causes. Then commercial practice came along and changed everything.

“(T)he practice of advocacy is significantly changed by the contemporary culture of economic competition and individual wealth-maximization. Competition for clients promotes zealous advocacy which is more adversarial—and less interested in “justice”—than early 19th century models of legal practice.” (Macfarlane 2006, “The New Advocacy” in The Negotiators Fieldbook)

During most of the 20th century, you could pick up almost any Code of Professional Conduct for lawyers and find the word “zealous” used to describe the core quality of legal advocacy. Of course, “zealous advocacy” can be interpreted in as many ways as there as lawyers out there, but by the 1980’s and 90’s it was increasingly understood as aggressive strength, a justification for a take-no-prisoners approach to litigation (see Andrea Schneider’s redo of Gerald Williams original 1976 study of lawyer negotiation styles (download a paper here http://www.hnlr.org/wp-content/uploads/2012/04/SHATTERING_NEGOTIATION_MYTHS_EMPIRICAL_EVIDENCE_ON_THE_EFFECTIVENESS_OF_NEGOTIAT.doc )

As one litigator once told me in an interview (for “Culture Change” (2002)) “(M)y job is to manage a war, not to manage a peace.”

A Huffington Post article last week by Jeena Cho cut to the chase. We are training lawyers (law students, articling students, law associates) to be jerks. http://www.huffingtonpost.com/jeena-cho/stop-training-lawyers-to-be-jerks_b_6598160.html

Are lawyers encouraged to consider empathy as a virtue?

Empathy – which Linder & Levit argue is the most important quality a lawyer can have – is mentioned nowhere in professional codes (neither, it has always seemed odd to me, is the application of personal judgment or discretion. Instead, everything is a “rule”).

Empathy is a “soft skill” and the dominant professional culture assumes that lawyers who show empathy are “softies” who “can’t hack it.” (I have copious empirical data on this point but I think it is hardly necessary – most lawyers will know exactly what I am talking about).

Rarely is empathy discussed as a lawyer quality at law school. Law students are taught that professionalism (a usefully fluid and unclaimed word just now in the legal profession, that can therefore be used to justify just about any approach) means objectivity, detachment, and lack of emotions (contrasted with rationality).

Andrea Schneider suggests in her 2002 study (above) that new calls are especially susceptible to the ideology of jerkhood, because they often have nothing else – no mentor, no alternative professional models – on which to base their behavior. And they need to show they can act tough and play with the big boys (and girls, who also play like boys).

Some professors in some law schools (including this one) have been working for years to teach a problem-solving approach to negotiations. Some law school clinics emphasize empathetic listening to clients. Codes of Conduct have started to change their language, often replacing “zealous” with words like “resolute and honorable” – a definite improvement but offering new lawyers only abstract guidance about how to behave.

But the overriding and insufficiently-challenged ideology of legal education and legal practice continues to be adversarial and rights-based.

What difference would empathy make?

Linder & Levit argue that empathy has many practical rewards and can make a lawyer stronger and more effective.

Empathy shows respect for the client and improves the lawyer/client relationship, making it easier to understand what is really at stake and ask the most apposite questions, resulting in critical information that can be used to advantage in settlement discussions or even at trial.

What is more, showing respectful empathy for the other side can be worth a hundred adversarial moves in achieving a good outcome for your client, as any mediator will tell you.

Too “soft”? No, To most people, this is common courtesy and practical common sense. And being soft in this sense is not the opposite of being strong or being effective but an essential requirement for it.

As Jeena Cho puts it: “(I)t’s been my experience that the more I can lead with kindness, the better the outcome I can achieve for my client (and often for all the parties involved).”

I know many lawyers who would agree. Sadly I also know that many more would read Cho’s post and Linder & Levit’s book – and this blog – and scoff.

This is far from a simple choice between being a sucker or a jerk (Mayer, Dynamics of Conflict, 2102). 360 degree advocacy requires commitment, creativity, empathy and attention to detail. Effective creative problem-solving demands the integration of the strength and dedication of the zealous approach with the listening, understanding and human caring of the empathy approach.

The empathy deficit and SRLs

Prolonged exposure to the anti-empathy culture of the legal profession creates some of the stress we have been describing in this blog that is experienced by litigants, both represented and self-represented. When you think about it, having to hang out continuously with anti-empathists, at the same time as navigating an intimidating process at a time of personal crisis, is probably not good for personal mental health.

It’s a bear pit out there. In the legal profession and at law school we know this. We should not be acting surprised – or even offended – when a member of the public falls into the pit – alone or accompanied – and is damaged by the adversarialism, cold detachment and sheer unkindness that some lawyers still believe to be the hallmarks of “good lawyering”.

Genuinely good lawyering, requires empathy and can help clients survive the bear bit. The more lawyers adopt empathy as a key responsibility, the more the legal culture will change.

 

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Comments (7)

  • evert-jan Steen

    Having read your Post about lawyers as warriors, and dollar driven cold mongers, I would like to add the following: Attitude and behaviour is handed down from the top hierarchy. Maybe overworked Masters and Judges (all former practicing lawyers) – already conditioned by wanting rules – are prone to be influenced by their younger ‘friends’ and fellow brethren. In a linear battle for position, all becomes a gamesmanship to WIN at all cost. Justice be damned! Kudos to the Winner. This then leads to the client becoming an addendum to the cause. And when the buck-grease dries up, matters tend to resolve, most often with some ludicrous solution: “It was the best ‘we’ could get, ‘In the circumstances,’ sorry! Next!
    The character of lawyers is by nature two dimensional; they are more like the Deus ex machina informing the client what happened during the last transactions with opposing counsel, or in court, then able to spend time trying to empathize with their disposition. A lawyer can not afford to be your friend. An aura of mystery must be maintained. So the cold war of composure between client and counsel continues. > That’s just the way it is!

    February 10, 2015 at 4:37 pm
  • sandra olson

    if you have no empathy for your client, you cannot expect any respect from them. it is a two way street. and the lawyers most criminally rude and unsympathetic are the judges themselves. I have been called a slut in court by opposing counsel, in front of a judge, who said nothing. I have been treated with crudeness, rudeness, a complete lack of civility, and told what I will do, without anyone listening to a word I had to say. nothing I said, was listened to, respected, or treated as anything but white noise, when our courts are operating this way, it is time for a complete dismantling of the SYSTEM that is supposed to be providing justice, but rarely is. our courts are there to supposedly provide justice. currently, the most evil of people, seem to be the most successful in this system if you actually just want justice, you will without a doubt be run over by the criminals running the system itself. while it is commonly stated that you MUST TELL THE TRUTH in affidavits, or be charged, so much of most affidavits is just bull. and it goes completely unchallenged. the courts have dna experts to tell them what they want to hear, anything you have to say, had better be what they are saying. if it isn’t you will be stared down and treated like you are a mental retard, and yes, I know how that sounds, that is exactly how you will be treated. our courts are disportionately prejudiced against women. we are treated like liars sluts and common trash. all because we want the right to examine the evidence properly. it will never be provided. to question the EXPERT is to suggest they are not the god like humans they claim to be. how offensive to the courts! how about some of that empathy for mothers, women who simply want to be heard, and to actually access the court processes. I have been in this system on my own, and represented, as it is now,, our courts here in BC are not functioning for the public at all. their goal is to intimidate, terrify, ridicule, mock and ultimately destroy whoever they please, both spiritually, economically and ultimately, physically, because if you stay in that court system long enough, your heath will suffer horribly, and you may never regain your perspective after this.

    February 13, 2015 at 1:47 am
  • sandra olson

    I just had my lawyer request the release of the dna file used in court against me, so it can be reviewed openly by both parties, Vancouver general has once again, refused. I had retesting of hla. one of the blood tests they relied on in court, they most reluctantly released a report twice as long as such a report takes, I also requested through the medical clinic I attended, for the full release of the new hla test file, not just the report, but the work supporting the report. Vancouver general has once again refused,. this is a legal right that both parties involved in a court action have. as well, the new hla test is simply my own medical file, and I am supposedly legally entitked to it. I have requested repeatedly of the courts of BC for the release of the file. not one court level is willing to order the release.of the file to me or my lawyer. can anyone account for the courts refusing to follow their own rules of full disclosure. I am very interested in how a case can be dealt with by the courts without it., but it was done in my case. and not favorably. when the courts refuse to follow their own disclosure rules, they cannot be said to be functioning at all. and any claim of not knowing what was happening, cannot be made.

    February 14, 2015 at 4:59 pm
  • A Reading List for Reading Week | The National Self-Represented Litigants Project

    […] The Good Lawyer: Seeking Quality in the Practice of Law by Douglas Linder and Nancy Levit (Oxford University Press, 2014 $24.95) – Linder and Levit argue that law school needs to inculcate the values of empathy, courage and collaboration rather than the cold and detached “professionalism” that has historically characterized legal education. Featured in last week’s blog https://representingyourselfcanada.com/2015/02/10/the-empathy-deficit-why-so-many-lawyers-think-their… . […]

    February 14, 2015 at 7:48 pm
  • Rob Harvie

    Julie, as promised, I have some comments to make.. not to “scoff”, but to help guide the “conversation” and assure that we don’t unduly polarize lawyers and the general public – in particular, their clients.

    A few comments.

    Firstly, for some good reasons, most lawyers I know have been raised on the axiom that the most dangerous person in litigation is your own client. We talk about it, law school professors used to say it explicitly (not sure I they still do or not), and as horrible as it sounds at first blush, the point is that we are raised, educated and governed with the expectation that a lawyer must constantly “cover their ass” to be blunt. To copy instructions in writing, to never assume your client understands your directions – essentially to protect:

    a) The lawyer – lawyers are, more and more ,the subject to complaint and litigation resulting from unmet expectations. The justice system is, at times, unpredictable and occasionally somewhat capricious – and when a clients hopes are not met, the most likely “target” for their frustration is their own lawyer. The opposing lawyer has no legal “duty” to a client, the Judge is immune, which leaves only one possible person to answer for an unsatisfactory outcome – the client’s own lawyer;

    b) The client themselves – a lawyer is cautioned that a client who may be dealing with the most stressful event in their lives, brought into a system that they don’t understand, with a language that might as well be Greek – cannot be trusted to understand and provide proper instructions based upon a conversation. Lawyer are constantly being reminded to confirm advice and instructions in writing – to allow the client more time to reflect and consider instructions and advice.

    Is there a better way to hammer this home than to scare lawyers into being wary of their own client’s lack of understanding and potential for “morning after” regret? Probably – but it’s not necessarily the young lawyer’s fault when they are essentially “raised” to fear their own client.

    Secondly – the balance between compassion and owning your client’s problem is a fine one -particularly in family law. Lawyers, oddly enough, are human beings. They have stress and angst and feelings – and they are imperfect. Many, may lawyers I know have a very difficult time managing the need to maintain objectivity with their client’s issues. What often begins as empathy, may turn into assumption of the client’s emotional perspective – and next thing you know, you have the blind leading the blind – lawyer and client blinded by anger and resentment over the actions of the opposing party – leading a lawyer to provide poor advice, lacking in objectivity and actually resulting in MORE confrontational and draining litigation – not less.

    Related to the above, again, particularly in family law, is “compassion fatigue” also known as “secondary traumatic stress”. I have, without question, seen it in many family lawyers. Lawyers who after experiencing the emotional trauma of many, many, clients – either lose themselves completely to their clients’ emotional turmoil – becoming completely ensconced in every client’s problem – or they go the other way, and become emotionless automatons – losing all compassion as a tool of self-preservation.

    Enough yet?

    We’re just getting started.

    As you allude to Julie, the WAY in which we regulate our lawyers contributes to our problems. Codes of conduct are essentially paternalistic, telling lawyers that they are, in many ways, the “guardians” of their clients – often diminishing the impression that a client ultimately should have control over their right to decide what service is or isn’t provided by their lawyer. Witness what was known as the “Colorado Decision” in the earlier days of collaborative law. Where family lawyers decided that the best way to resolve problems was to offer a limited scope service to clients that took litigation out of the equation. A collaborative contract essentially required the lawyers to do nothing but assist in negotiating settlement in a respectful and non-adversarial way. Well…. the Colorado Bar Association was having none of that – and essentially said that to offer such a service was “unethical” because it – you guessed it – restricted the lawyers obligation to provide “zealous advocacy”. Now – to my understanding, no other Bar Association or Law Society made such an explicit finding – but even in Alberta, in the early days of Collaborative Law, I was required to meet with the Law Society of Alberta to explain how Collaborative Law was not “unethical”.

    I make these comments not to be defensive or to seek to thrown the blame for a lack of empathy or an attitude of adversity to someone other than lawyers – but to, in fact, accept some of that blame, but to help clients and the public understand to some degree where it comes from and why it’s difficult to just say, “Lawyers, stop being jerks”.

    Are there “jerk” lawyers? Yup. Jerk clients too. Jerk judges. Jerk regulators. Jerk law professors. But – I daresay, in each case, they are the exception. The real problem isn’t the “jerks” – it’s the flawed human beings who, mostly, are doing their best in a difficult situation.

    The good news.

    Collaborative Law to begin with. I’ve done numerous trainings over the years, travelling all over the U.S., from New Orleans to San Francisco to Chicago to Washington D.C. Am I a “kumbaya” sort of granola-munching peacenik? Nope. I do maybe 25% collaborative work – the rest is loosely described as typical litigation. Except I’ve learned that my training and the training of so many lawyers in family law now encompasses an understanding that the “problem” is the problem. We’ve learned to be more adept at trying to find solutions, not find ways to engage in combat – even when we’re litigating.

    There is in my opinion, a way to teach litigation lawyers to be more effective by taking training in collaborative law. By teaching them that they don’t need to “own their client’s emotions” to be empathetic. By teaching them that finding solutions, ultimately, is their job – not engaging in combat. And even when you do find your way into court – being a more effective advocate by presenting the clearer options for “solutions” to the judge. By understanding the neurological dynamics of conflict and litigation – training almost always offered in IACP Conferences (excellent presentation by Paulene Tessler in Vancouver this past fall.)

    So – while I understand and to some degree accept the criticism of my profession in the blog – I do caution against any movement at creating polarization or ‘us” vs. “them” dynamics between lawyers and clients or SRL’s.

    I would, instead, encourage lawyers to take some collaborative training. Take some training in the neuroscience of conflict. Understand their clients and SRL’s better.

    I would also encourage clients and SRL’s to, maybe, take some time to consider the humanity of their lawyers. To understand that “empathy” does not necessarily equal responding immediately to the 100 emails per day a lawyer might receive and does not equal adopting the client’s own anger or emotional trauma.

    Anyway.

    That’s it for now.

    The bottom line, I think, is open conversation and communication. Lawyers taking the time to communicate, and listen, and, just saying, client’s taking the time to do the same.

    February 17, 2015 at 3:41 pm
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    February 17, 2015 at 3:50 pm
  • sandra olson

    all of this would be nice, but no one in the “justice system listens to anything. least of all from their clients. and if you are self represented, they will go for you with a vengeance not seen since grade three court yard bullies. they have been to me at least, rude, abusive, demeaning, and refused to follow even the most basic of court rules. instead, looking for ways to avoid transparency, honesty, even just plain honorability. you want the self represented, or the client to have compassion for you,,,,,,,,, make judges not immune,,, they should be responsible for their insanity. and everyone who has had a lawyer knows when someone has acted honorably and it is someone elses fault when things go wrong. no one is looking to target their lawyer because of a bad decision,. but we the public, do want some rights to say,, this is an asshole decision. now how did we get here, who is responsible and who is going to step up to the plate and take responsibility,. if it is the judge, and he or she is completely incompetent. we need the right to remove them. and if it is opposing counsel hiding evidence, or acting dishonorably and refusing to co operate with anyone to achieve a just decision. we need such people to be removed from the legal profession,. if it is our own lawyers, and they have coned us, failed us either by failure to disclose to us or by collusion with the opposition, and it has happened, what then,,, when is the legal profession going to start taking responsibility for acting in a manner that is corrupt, in conflict to their clients rights. I call this open conversation and communication, I will not be surprised if like all court actions I have been in, it is ignored, disregarded, treated with contempt, I have asked for complete disclosure of my dna file, I have asked for the right to independent evaluation of the evidence against me, I was refused all of this, and no matter what I said, or put forward as evidence, the courts ignored, lawyers set up appointments for court, knowing I was waiting for them to show up with their clients In a different jurisdiction for examination. judges didn’t care and rammed decisions through without me there “expert” evidence was never examined, witnesses were never allowed to be examined, etc etc, all at the direction of the courts, yes, the poor lawyers who are virtually criminals, without conscience, you will not find a shoulder here fella. I have been fighting this for 21 years now. and I am finally getting some evidence, do you think the courts want to hear it? not a bit,, they only look at case history. did you have any evidence? no, because I couldn’t get any disclosure orders, too bad, so sad,, nothing you have to say counts now..

    February 18, 2015 at 4:13 am

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