An Inconvenient Truth: the Need to Educate Emotionally Competent Lawyers

• Publication year: 2022

45 Creighton L. Rev. 827. AN INCONVENIENT TRUTH: THE NEED TO EDUCATE EMOTIONALLY COMPETENT LAWYERS

AN INCONVENIENT TRUTH: THE NEED TO EDUCATE EMOTIONALLY COMPETENT LAWYERS

Robin Wellford Slocum(fn*)

I. INTRODUCTION

Imagine a world in which lawyers were respected as true "counselors" at law, professionals of the highest ethical stature who, with impeccable judgment, helped their clients achieve their loftiest goals and aspirations. Imagine a world in which lawyers woke up each morning eager to begin their workday, knowing they would be using their finely honed legal skills to help the people who came to them for guidance. Imagine a world in which the eager first-year law students who enter law school during orientation week were even more engaged and enthusiastic about the practice of law by the time they graduated.

Why is this vision so far removed from present reality? Why are lawyers, as a group, among the unhappiest professionals in this coun-try?(fn1) Why are lawyers vilified by the public(fn2) and routinely the butt of jokes in the media and at cocktail parties? Why are lawyers so often ineffective in their efforts to dissuade their clients from conduct that is self-defeating and even unethical?(fn3) Why are courtrooms often little more than legalized battlefields, with lawyers assuming the role of hired guns doing their clients' bidding? Why do so many eager and excited first-year law students become jaded and apathetic by the time they graduate from law school?

Although there are likely a myriad of reasons for this disconnect, our current system of legal education assumes a significant role in creating the dichotomy between this vision and present-day reality. As educators, we are still largely reliant on the Langdellian model of teaching, a model premised on the idea that law is a science, the study of which should be separate and distinct from the influence of emo-tions.(fn4) Although few would currently claim that law is a science, Langdell's influence is pervasive even today. Over 140 years later, there still exists a prevailing notion that we can teach students to be effective lawyers by training them to "think like lawyers," and that we can do so with a nearly singular focus on training the analytical mind, with a nod to clinical and skills courses to round out their education.(fn5)

There is, of course, good reason to value the teaching of analytical skills. This country is founded on the rule of law and legal precedent, and interpretation of the law requires the development of skills in legal analysis and logic. Moreover, there is some merit to the disdain for emotions. The "neural static" from emotions can sabotage our ability to reason clearly and creatively, and to achieve the perspective necessary to grasp the "bigger picture."(fn6) Given this unwelcome by- product of emotions, it is perhaps not surprising that the legal academy has turned its collective back on emotions and relegated them to a peripheral role in legal education. The goal has been to train lawyers to reason analytically without the cumbersome weight of emotions to obscure clarity.

Although the goal might be laudable, it is based on a nineteenth century understanding of the human brain that is inherently flawed. The ideal of a dispassionate analytical mind untainted by emotions and personal biases is a fiction.(fn7) As modern research in neuroscience makes abundantly clear, the limbic region of the brain (the "emotional" brain) is so intertwined with the cerebral cortex (the "thinking" brain) that we literally cannot "think" without its influence.(fn8) The emotional brain is an integral partner with the thinking brain in the way that we process and assess information, for the emotional brain not only assesses the value and meaning of the information we appraise but also determines its significance.(fn9) As one neuroscientist notes: "Generated by the value systems of the brain, these emotional activations pervade all mental functions. . . . Creating artificial or didactic boundaries between thought and emotion obscures the experiential and neurobiological reality of their inseparable nature."(fn10) In other words, emotions are essential to our ability to reason and problem-solve; we simply cannot exercise judgment and discernment without the input of the emotional brain.(fn11)

Unfortunately, the flawed nineteenth century understanding of the human brain upon which legal education was built has spawned an equally faulty premise that still exists today-that we can train law students to be effective lawyers by virtually ignoring students' emotions and the development of emotional competencies.(fn12) This artificial separation of emotions from "thinking" imposes a tremendous cost on our students and on the legal profession. By marginalizing and minimizing the importance of skills in emotional competency, we ill-prepare our students to work effectively with the complex interpersonal legal problems they will encounter in the practice of law.(fn13)

Moreover, by dismissing emotions as irrelevant to legal thinking, we not only strive to accomplish what is a neurological impossibility, but we unwittingly ignore that which has true meaning to students- their emotional compass and values. As neuroscientists make clear, it is our value-laden emotional activations that "literally create meaning in life."(fn14) The implications of this statement are sobering. Legal education is still largely reliant on a system of teaching that systematically strips students of what is actually meaningful to them as people (and to their future clients). As troubling, this disdain for emotions hinders our ability to help students develop a professional identity.(fn15) Because it is emotions that give meaning to abstract thoughts, emotions can serve as a meaningful moral rudder to inform students of what they value and find important and signal to them when they have lost their way.(fn16)

This Article first describes four basic domains of emotional competency skills that are demanded by the practice of law.(fn17) It then reflects on some of the costs we incur by continuing to marginalize emotional competency training in the law school curriculum.(fn18) The Article concludes by sharing some thoughts and suggestions for incorporating emotional competency training into the law school curricu-lum.(fn19) These ideas range from relatively minor shifts in emphasis in doctrinal and lawyering skills classes to the addition of courses focused exclusively on developing emotional competencies that are required skill-sets in modern legal practice.

II. EMOTIONAL COMPETENCY SKILLS REQUIRED IN THE PRACTICE OF LAW

Law students prepare to enter a profession that will demand emotional competence, and, if they want to excel in the profession, superior emotional competence.(fn20) Emotional competency is integral to the exercise of good judgment and to the ability to communicate, persuade, and influence others.(fn21) Most of our students will spend a significant percentage of their time working with people-cultivating new clients, advising and counseling clients, negotiating deals with other lawyers, persuading judges and juries about the merits of their clients' cases, and working with colleagues, managing partners, and teams of other professionals to solve complex problems. These communications are not casual and breezy in nature. They invariably involve difficult and challenging issues that require sophisticated and deft maneuvering; and they often involve conflict-a veritable landmine of hidden hazards in which missteps and miscues can be counter-productive to a client's interests.

Over the past thirty or more years, numerous studies have evaluated employee performance across a broad spectrum of industries and disciplines(fn22) and have documented the importance of emotional competency to effective performance in the workplace.(fn23) From this research, certain propositions have achieved a strong consensus. The studies suggest that, while important, IQ and academic success are not by themselves good predictors of success in the workplace.(fn24) Instead, professional success depends upon a combination of IQ, expertise, and emotional competence.(fn25) One study of 181 competency models from 121 organizations worldwide concluded that emotional competency skills account for sixty-seven percent of the abilities deemed "essential for effective performance,"(fn26) with numerous studies suggesting that the importance of emotional competence increases with the complexity of the job requirements.(fn27) Of particular importance to educators, the studies provide strong evidence that emotional competency skills can be taught and learned.(fn28) Indeed, the importance of emotional competence is a reality that some of the best business schools in the country now recognize, where courses designed to develop the emotional competencies are becoming standard fare.(fn29)

The inconvenient truth is that effective lawyering requires emotional competence because it is the emotional competencies that help form such essential lawyering skills as good judgment, sound perspective, and effective relational skills.(fn30) These important qualities of lawyering demand at least a certain level of emotional competency across four basic domains:(fn31) (1) self-awareness (including emotional awareness); (2) self-management (including control of one's emotions); (3) social...