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Tag Archives: lawyer empathy

Empowering Through Empathy

Empathic Empowerment:  Feeding the Wolf

A Cherokee elder sat with his young grandson and explained “Son, there is a battle between two wolves inside us all.  One is evil. It is anger, jealousy, despair, resentment, falsehood, ego and individualism.  The other is good.  It is compassion, understanding, love, kindness and community.”

The child thoughtfully considered his grandfather’s words before asking: “Grandfather, which wolf wins the battle?” to which the elder replied:  “The one we feed.”

Self Absorption & Empathetic Awareness

In “Social Intelligence: The New Science of Human Relationships,” Emotional Intelligence guru Daniel Goleman writes:

Self-absorption in all its forms kills empathyWhen we focus on ourselves, our world contracts as our problems and preoccupations loom large.  But when we focus on others, our world expands…we increase our capacity for connection – or compassionate action.”

Empathy is that quality that allows us to walk in another’s shoes. It allows us not only to understand intellectually what they experience in their own circumstances and on their own terms; it allows us to feel what they are feeling as result of those circumstances.  Empathy differs from sympathy in that it is more than an extension of understanding toward another.

Where sympathy is feeling for, empathy is feeling with.  It imports an element of caring derived from our personal, emotional identification with another’s emotional experience.

Who among us hasn’t at least overheard the categorical claim that lawyers as a group are a self-absorbed lot?  If you’ve heard this– perhaps even leveled at yourself– you might ask: what does my practice style lend or take away from this perceptionWhy should I care?

The Sum of The PartsEmotions

Mr. Goleman explains the 3 varieties of empathy that presumably come together to form an empathetic whole.

Cognitive empathy” allows us to understand what another is thinking; the quality assists in functions like debate or negotiation, a lawyer’s stock in trade.

Emotional empathy” permits us to feel the emotions of another. This quality involves a neural dynamic in which we mirror the emotions, movements or intentions we observe in another.  This lets us feel with the other person– but not necessarily feel for them— a prerequisite for compassion.

“Compassionate empathy,” or “empathetic concern,” allows us not only to understand another’s plight and feel it along with them; but, as a response, we are moved to adopt their struggle as our own and to provide what care and assistance we are able.

Here, I’ll call one’s ability to understand, harness, and make effective use of these separate elements of empathy one’s “empathetic intelligence.”  Maybe one day, I’ll parlay this concept into a separate literary and business career!

bigstock-Judge-s-hold-hammer-on-wooden--46275952Meanwhile, legal scholarship routinely examines the intersection of empathy and law. [1] In the article cited below, Professor Gallacher argues empathy is a core lawyering skill that the process of educating and socializing law-students to “think like lawyers” systematically eliminates.  Interesting disconnects arise when newly minted lawyers collide head-on with a consuming public that does not “think like lawyers” and that engages in decision-making differently than lawyers.

Given Mr. Goleman’s triplex definition of empathy, lawyering can be an intensely empathetic activity.  Who can argue against the importance of placing ourselves in the minds of others— clients, investigators, defendants, witnesses, experts and, especially, members of juries?

Who can argue against the practical value of influencing the process by which such people arrive at their decisions in order to achieve our client’s desired outcomes?

OK– But Again, Why Should We Care?

One aspect of Professor Gallacher’s point is deceptively simple: empathetic competencies yield tactical strategies that ultimately empower lawyers with such qualities to achieve superior results.  However, legal education erodes empathetic intelligence and supplants it with a “logical” intelligence that eliminates this critical component of human understanding and connectivity.

When we return from the Ivory Tower of scholarly abstraction, both feet back on the soil of our daily practice routines, we find ourselves among a sea of legal consumers who, consciously or unconsciously, expect attorneys to act “morally” as well as empathetically.  

These consumers of legal services often have little or no notion of California’s Rules of Professional Responsibility or the ABA’s Model Rules.  If you miss the importance of the distinction between attorney ethics and popular morality, try sitting in on a conversation between a regular Jane or Joe and a criminal defense attorney as the attorney patiently explains how and why she is able to defend a child molester, rapist or murderer. 

What we find is that legal consumers tend to infuse the quality of empathy with elements of morality, generosity and altruistic behavior– with compassion, social cohesion and connectedness.  These latter qualities are demonstrably at odds with the characteristic self-absorption often displayed by or associated with contemporary legal practitioners.  Criticisms and complaints often come from consumers who have imported an expanded empathetic concept into the much narrower concept of “attorney ethics.”

The take away is that an attorney’s poor bedside manner may cause a client to complain to the State Bar, even when the attorney is acting within her ethical domain.

 Addiction’s Devastation of Empathic Intelligence

The erosion of empathetic intelligence by law schools may only be a theoretical concern. However, there is clear anecdotal evidence the concern is catching the attention of decision-makers within such institutions like a bad cold.  I won’t offer a citation.  Just google “empathy and law school” and you’ll see what I’m talking about.

Of greater concern are the alarming statistics showing attorneys suffer from alcoholism, chemical dependency and depression at rates significantly higher than the general population and other professions. [2]

Substance abuse and addiction can devastate an attorney’s ability to develop or maintain empathetic intelligence.  

Research confirms that addiction harms our ability to feel another’s emotional state and respond appropriately, even while it leaves our ability to understand these emotions intact.

Using Goleman’s model, we can say that addiction impairs emotional empathy while preserving cognitive empathy. [3]  This is true of alcoholism, even when co-occurring disorders such as depression for example are controlled for. [4]

Alcoholism demonstrably affects the perception and interpretation of the emotionalMimic expressions of others, including the ability to recognize social and emotional cues. [5]

These impairments affect an attorney’s ability to comprehend relevant emotional states.  This, in turn, affects the attorney’s ability to use empathetic intelligence to develop case plans and strategies and connect the emotional states of our clients with the expectations of juries.

However, the affected attorney doesn’t typically leave these deficits at the firm or at the courthouse.

Over time, unchecked addictions steal their way into our personal relationships— with our spouses, children, friends and other family members– gradually eroding the intimacy, trust and shared loyalties appropriate to these connections.

These emerging findings strongly suggest attorneys in recovery, and those working with them in clinical treatment or peer-support environments will greatly benefit– tangibly and intangibly– by enhancing their empathetic capacities.

The anticipated dividends include the ability to intuit clients’ true needs and motivations quickly, fostering a more immediate and deeper measure of trust and connection.

Developing and enhancing one’s empathetic intelligence can also make one more effective in motivating and influencing others to adopt critical perspectives on the legal and factual issues that determine case outcomes– assuring greater client satisfaction over time.

And after all, don’t satisfied clients create satisfied lawyers?

[1] See e.g., Gallacher, Ian, Thinking Like Non-Lawyers: Why Empathy is a Core Lawyering Skill and Why Legal Education Should Change to Reflect its Importance, (September 25, 2011), at fn. 2 [citing articles] Legal Communication & Rhetoric: JALWD, Vol. 8, 2011. Available at SSRN: http://ssrn.com/abstract=1933473.

[2] Neuro. Sci. 2014 Jan 1, Addiction & Empathy: A Preliminary Analysis. Ferrari VSmeraldi EBottero GPoliti E.

[3] Wendy L. Patrick, Dealing With Substance Abuse, California Lawyer, July 2010; Carol M. Langford & Robert M. WellsThe Sobering Truth: Facing Substance Abuse in the Practice of Law, Contra Costa Lawyer, (Jan 26, 2012); Steven D. Wasserman, Mark Hancock & Kelley Van Aken, Addressing Substance Abuse, California Lawyer, (December, 2013.).

[4] 2011 by the Research Society on Alcoholism. Dissociation Between Affective & Cognitive Empathy in Alcoholism: A Specific Deficit for the Emotional Dimension. Maurage PGrynberg DNoël XJoassin FPhilippot PHanak CVerbanck PLuminet Ode Timary PCampanella S.

[5] Simona Amenta, Xavier Noël, Paul Verbanck, Salvatore Campanella. Decoding of Emotional Components in Complex Communicative Situations (Irony) and Its Relation to Empathic Abilities in Male Chronic Alcoholics: An Issue for Treatment. Alcoholism: Clinical and Experimental Research, 2012; DOI: 10.1111/j.1530-0277.2012.01909.x