The Benefits of Empathy in a Legal Education

The current divorce from reality in legal education

The 1L curriculum and much of the law school curriculum in general is focused on the idea that to study the law is to take an abstract and purely analytical approach to it. Following this logic, being a lawyer is also about abstractly approaching legal problems—and it certainly does not seem that our law school would wish us to think otherwise.

The “usefulness” of the divorce

This disjunct between “the law” and the reality of legal disputes seems a useful tool only so far as it will enable us to discharge any obligation to consider what work we do and what clients we take. If the practice of law is an analytical problem-solving tool, then the clients we represent are only pieces of the larger legal puzzle. Now, if what will truly make us happy is to make as much money as possible, then this divorce from legal problems and the actual implications of our legal practice is useful. We can compartmentalize our practice from our lives, much like Jack in Lawyerland. If we never confront the reality of our impact, we need not worry about splitting apart. As has been reiterated to us throughout this class, however, this is not a path likely to lead happiness.

The Role of Empathy

If we instead wish our work not to be a means of income to provide happiness for ourselves and our families, but for our work itself to be our actual source of happiness, then viewing the law as divorced from emotion and persons is more problematic. In my first draft, I focused on the lottery concept discussed in class and implored us find room for sympathy. Sympathizing for a person, however, does not get us far (beyond being decent human beings), nor is it necessarily connected to our recognition of the chances of life. Approaching legal problems with instead empathy can give us a greater sense of understanding our clients and viewing how the legal system should work. When we recognize the chances of birth, it requires us to apply a veil of ignorance to the law—to determine how the law should operate. This can make us better advocates for our clients and make us more comfortable in our own skin.

Learning Empathy

Learning to empathize with our clients seems to be as useful a legal tool as understanding the language and requirements of contracts. Yet our law school experience provides us with little opportunity. Should not understanding the formalities of legal doctrines be better matched with learning to understand the kinds of legal problems people born in other situations face in the world, and how we can help them? The Carnegie foundation for Advancement in Educating Lawyers suggests that law school should be more like an apprenticeship to the legal profession, much like medical school for doctors. Doctors must practice in many areas before choosing a career. If law school were not only about learning legal doctrines, but also familiarizing students with the different paths in the law, I believe we would be better prepared to make future professional choices and that Professor Moglen would get fewer distressed phone calls from former students in personal crises.

The role of empathy in Biglaw

The problem remains as pointed out earlier that citing a need for empathy assumes we will have one-on-one contact with clients, which, based on Columbia’s statistics, most of us will not. I struggled with seeing what role empathy could play in the law if we represent corporations and have litter client interaction. I came up with some possibilities, but not compelling ones. This posed another struggle—empathy seems a valuable part of legal practice—so what does it mean if many of the legal roles I can play do not offer the chance to utilize it? For me, it has made me recognize that, if I want my work itself to be a source of happiness, I cannot divorce law from reality. I suspect I am not alone in this. I recently participated in interviews for Project-Chairs of Domestic Violence Project’s pro-bono programs. A common factor was a desire to make what we are learning in law school meaningful. Applicants mentioned that participation in the projects finally gave meaning to the law—meaning that was absent in the 1L curriculum. I have the growing suspicion that a number of us will not find this lack of meaning not only during law school, but also in our professional lives.

Where I will go from here

I don’t think this need mean we can’t be find meaning in the law unless we are working at public interest organizations. For me, reflecting on these issues has most of all made me want to consider fields that allow for a lot of client contact and a focus on the effect of my services. Among the options I’ve come up with so far, are working in estate planning & trusts, or with legal issues surrounding artifacts and world heritage sites. I’d also like to work with victims of domestic violence and victims of gender discrimination. These are, admittedly, completely unrelated areas of the law. The common thread to me is the chance to have a direct and positive impact on the lives of people, or cultures as the case may be with antiquities.

My point in sharing the options I’ve considered is to demonstrate that I don’t think connecting the study of law to its impact on people need necessarily mean we restrict ourselves to a certain class of jobs. Teaching more empathy in law school and connecting legal study to real-world impact would not make Columbia a specialized public interest school. It would instead encourage us all to think not only about the kinds of legal problems we want to solve, but about the effect that we want to have on the world.

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(Original First Paper)

In my original paper I started considering the need to relate to clients, but it didn't get me far, or at least in the direction I wanted to go. But, because I really just started with the same initial thought but took it in a different direction, I'm leaving the ealrier draft below.

Recognizing Chance to Become Better Lawyers

Introduction

The idea that we have “won the lottery” through our circumstances of birth has come up, and we have questioned where we go from here. I’d like to explore further how that can and should impact our future legal career and how it can help us be better advocates for our clients. Acknowledging that we were blessed to be born into the conditions we were—and I think this goes for anyone who is now at Columbia, because even if you were born poor and underprivileged, those are relative classifications—only takes us part of the way. We can realize that we may not have been given all of the opportunities that were open us, by chance or mistake. But we should also realize that, but for a chance in circumstances, we could have made the very same mistakes that our clients made, regardless of how grim.

An obligation in work

Once we realize that we have a rare opportunity in front of us, it becomes incumbent upon us to take our license and do good in the world. The good need not necessarily be working a low paying public interest job. Robinson appeared to be one of the “good guys,” even if he was representing society’s bad guys. What made him good was that he chose his clients (they could not necessarily simply choose him by forking over a small fee) and that he advocated for them. Professor Moglen shared an encounter with us about the lawyer on the Court House steps who had received his fee and seem little bothered that his client would nonetheless be serving a life-term, indeed, he said it would do him some good. While he and Robinson may have both been criminal defense lawyers, Robinson appears to still be one of the good guys, and the other lawyer a bad guy. I am not suggesting that we need to care passionately about the fate of our more-than-likely very guilty clients, but complete apathy is inappropriate—we need to care about their fate, even if we are unable to think that the outcome was necessarily wrong. If we appreciate the chance of our position, then perhaps we can be more open to the situation and needs of our clients.

Understanding & Advocacy

Jessica Lenahan, formerly Jessica Gonzales, spoke at a law school lunch last month. (If you are unfamiliar with her tragedy, find more information here). She asked all of us to remember as we embark into the legal profession that we need clients just as much as clients need lawyers. She expressed frustration at lawyers in the past had not taken the time to explain the progress of her case or its nuances to her, and asked us to remember not only that we need each other, but that we could be each other.

If we take the concept of the lottery to heart, then we must realize that we could easily be the person seeking some form of justice for a life-shattering event. If her lawyers had considered the amount of information and the level of detail we would want had we been born into her life, perhaps they would take more time to go over the details. I realize that we are not psychologists, and that it may seem unnecessary to explain every legal detail to a client, but if we could put ourselves in the position of our clients, we could understand their desire to know all the legal details.

Realizing how mostly chance separates us from our clients would not only be good for our clients, but that it would in turn make us better advocates. I have often heard that a good legal advocate is passionate about their cause. If we understand just how close we may be to our clients’ situations, then we may be able to feel and express more passion in our advocacy.

Between Here and Rikers Island

Maybe we will be able to sympathize with clients like Lenahan, and realize that we could be in their shoes, but it may be harder for us to do this when the client is not the victim but the perpetrator. Yet once again, we must recognize that born under different conditions, we could make similar mistakes as many, though maybe not all, of the population of Rikers. Most of us have probably grown up thinking of inmates as bad-guys, and deserving of their incarceration. This may be true to an extent—I have gone through the Sunday morning visitation line and held no wish that the visit could be held in the world of the free—but this does not mean that, given a different set of circumstances, I could have made mistakes that many others have made, or that inmates could not in another world be lawyers.

Robinson plays with the idea of lawyers and prisoners transforming into each other. He seems to toy play with the fact that the lawyers and prisoners are not that different from each other. Perhaps the realization that not much separates us from them other than circumstance is part of what makes him a good guy, and the lawyer on the courthouse steps a bad guy. We as lawyers must recognize that we may be the last barrier before stepping onto that island. If we recognize the dumb luck of it all, perhaps we will take this role as barrier more seriously, more compassionately, and with the greatest interests of our clients at heart.

In the end, I think that the kind of law that we choose to pursue is less indicative of appreciating our opportunity than the way in which we practice it. Certainly some kind of lawyering may be inherently an offence against such a realization. But beyond that, whether we are criminal defense attorneys, prosecutors, or whether we deal with wills and trusts, understanding how easily we might be in the chair facing us may make us stronger lawyers, better advocates, and good people.

• Your essay assumes for many of its purposes that lawyers have individual clients they can see and talk to. This is, as I have pointed out, already a step away from the modal experience of this law school's alumni, most of whom do not have such clients, because they practice in large aggregations of lawyers that represent large aggregations of capital. If one represents individuals, however, the practice of walking a mile in their shoes, which you recommend, will not always be sufficient. One way to think about the problem might be to consider the differences between empathy and sympathy, and those differences affect the relationship between lawyer and client. That might prove to be a useful route in revision: I think this draft is a step towards the goal, but one which is perhaps most useful if also heavily modified. I think one could leave behind both the elements related to anecdotes of mine or of Lawrence Joseph's and elements that might be called "preachy" by those less sympathetic to the project than I. If you lose both the exhortation and the reliance on others' stories, taking a more analytic approach to the precise nature of the sympathetic and/or empathetic bonds between lawyer and individual client, I think you will have an essay that does justice to both your strength of mind and your capacity for psychological insight.