The Empathy Deficit : Why So Many Lawyers Believe Their Job is to be a JerkNSRLP
“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.