Clients, Empathy, and Compassion: Introducing First-year Students to the "heart" of Lawyering

• Publication year: 2021

87 Nebraska L. Rev. 1. Clients, Empathy, and Compassion: Introducing First-Year Students to the "Heart" of Lawyering

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Kristin B. Gerdy(fn*)

Clients, Empathy, and Compassion: Introducing First-Year Students to the "Heart" of Lawyering

TABLE OF CONTENTS

I. Introduction ....................................................... 2
II. Clients, Empathy, and Compassion: Do They Really
Matter? ........................................................... 4
A. What Students Think ............................................ 4
B. The Clients Speak: Studies of Client Satisfaction
and the Public Perception of Lawyers ........................... 6
C. Why Public Perception Matters: How Meeting Client
Needs and Expectations Affects the Practice of
Law ............................................................ 12
III. A Profession for the Heart and the Head: Empathy and
Compassion in Legal Practice ..................................... 15
A. Empathy: The Cornerstone of Interpersonal
Relations ..................................................... 17
B. Compassion: The Lawyer's Desire to Succor and
Aid ........................................................... 24
IV. The Missing Piece in Modern Legal Education ....................... 29
A. Better Preparing Students for the Practice of Law:
Criticisms of Modern Legal Education ........................... 30
B. The Current Place of Clients, Empathy, and
Compassion in the Law School Curriculum ........................ 34

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C. Can Client Needs, Empathy, and Compassion be
Taught? ........................................................ 36
V. Compassion and Empathy in Medical Education:
Techniques for Teaching Effective "Bedside Manner" ................. 41
A. Symbolic Entry into the Profession: "White Coat
Ceremonies" ..................................................... 42
B. Using the Humanities to Teach Empathy and
Compassion ...................................................... 43
C. Reflection Techniques ........................................... 44
D. Experiential Learning ........................................... 48
VI. Taking the Client Into the Classroom: Giving First-Year
Law Students Experience with Clients, Empathy, and
Compassion ........................................................ 52
A. Symbolic Entry into the Profession: The Lawyer's
"Briefcase" .................................................... 52
B. Using the Humanities to Teach Empathy and
Compassion ..................................................... 54
C. Reflection Techniques .......................................... 56
D. Experiential Learning .......................................... 58
VII. Conclusion ....................................................... 61

I. INTRODUCTION

If I have been charitable in my judgments of my fellow man; if I have tried to help him as best I could; if I have done my utmost to truly understand him, I know why I have taken this course--I could not help it. I could have had no comfort or peace of mind if I had acted any other way. I have been interested in the study of man, and the motives that move and control his life. I have rejoiced with him, and have grieved with him; I have followed my instincts and feelings and sought to rescue the suffering when I could. But I know that I have done it more or less involuntarily as a part of my being, without choice, and without stopping to weigh which were most deserving or worth saving. If I had paused, I should probably still be wondering and doing nothing. I claim no credit, and I want no praise.(fn1)

In September 2006, Karen J. Mathis, President of the American Bar Association, commented:

Ultimately, lawyering is a delicate balancing between a constantly evolving world, and the fundamental principles that define our legal system. It calls upon your compassion as well as your intellect, your heart and [sic] well as your head. . . . [C]aring is as much a part of the legal profession as intelligence. . . . [I]t is every lawyer's responsibility in every setting to serve others.(fn2)

Professionals, including lawyers and doctors, must not only practice the science of their craft but must also incorporate caring if they

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want to be successful. To professionally embrace "[t]he ethics of caring requires [the professional to] feel as well as reason. Our natural impulse to care comes from compassion and human love."(fn3) Caring is not merely an emotional response because it requires analysis and reasoning, but "true caring . . . cannot be reduced to problem solving. It emphasizes as much the motivation as the consequences of an action. . . . Moreover, an orientation to caring incorporates the attributes of attentiveness, honesty, patience, respect, compassion, trustworthiness, and sensitivity into all aspects of moral behavior."(fn4)

In this piece I explore the need for instruction and experience with the "heart" of law practice within the first year of law school.(fn5) According to the report on legal education prepared by the Carnegie Foundation, the two major limitations in American legal education are 1) a lack of attention to practical education, including a marked lack of understanding client problems, and 2) failure to support development of ethical and social skills.(fn6) With the release of this report it is likely that law school faculties throughout the United States will be looking at their curricula to see how to better fill these gaps and better prepare the students to be practicing lawyers rather than legal scholars. This presents an important opportunity for law faculty, many of whom already recognize that legal education means more than teaching students the complexities of legal analysis, often referred to as how to "think like a lawyer," but also how to communicate, work with people, and advocate for their clients like lawyers do. But, what they may not recognize is that they are also perfectly suited to teach the "heart" of lawyering. Whether it is helping students to see their clients as real people with real problems or helping students to realize that empathy and compassion are critical for successful law practice, the first year of law school is the ideal place to begin to fill this gap in legal education.

Understanding clients and exercising empathy and compassion comprise the "heart" of lawyering. The Oxford English Dictionary defines "empathy" as "the power of projecting one's personality into (and

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so fully comprehending) the object of contemplation."(fn7) The English word "empathy" comes from the German word "Einfuhlung," which literally translated means "feeling into."(fn8) According to Carl Rogers, the founder of the client-centered therapy movement, to demonstrate true empathy is "[t]o sense the Client's private world as if it were your own, but without ever losing the `as if' quality."(fn9) Whereas compassion, which is often mistakenly seen as synonymous with empathy, is "[t]he feeling or emotion, when a person is moved by the suffering or distress of another, and by the desire to relieve it; pity that inclines one to spare or to succour."(fn10) This definition refers to the compassion given "towards a person in distress by one who is free from it, who is, in this respect, his superior."(fn11)

Unfortunately, the traditional law school curriculum devotes little emphasis to teaching students about clients or about the role of empathy and compassion in law practice.(fn12) Yet law is not alone as a profession that calls upon its practitioners to understand and care about people. Medicine also requires this "heart," and medical schools often do focus on training students to deal effectively with patients. There are numerous parallels between a doctor's "bedside manner" and a lawyer's ability to interact with her clients, and as such, law faculty may learn from how medical faculty attempt to teach such things without having to vastly expand the existing curriculum.

II. CLIENTS, EMPATHY, AND COMPASSION: DO THEY REALLY MATTER?

A. What Students Think

In order to try to gauge what our students know about clients and their perceptions of what clients need and want from lawyers, as well

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as what they think about the "soft" skills of interpersonal dynamics, empathy, and compassion, I decided to see what a group of students at my law school thought. My survey was not meant to be particularly "scientific," but rather was intended to show students' initial reactions and to raise questions for law professors to consider.

During fall semester 2006, 150 first-year law students enrolled in Introduction to Legal Research and Writing were asked to complete a survey about what they believe clients want from lawyers and how the general public perceives the legal profession. The survey was conducted in preparation for a class session on lawyer-client relations that included a guest speaker representing a "typical" client. Onehundred-and-eighteen students completed and returned the survey.(fn13)

First the students were asked to weigh the importance of seven lawyering "skills": substantive legal knowledge, oral communication, written communication, interpersonal skills, negotiation skills, litigation or case strategy skills, and research skills. Not surprisingly since the survey was given in conjunction with their legal writing class, the students weighted written communication as the most important lawyering skill, followed by oral communication and substantive legal knowledge. These first-year law students ranked interpersonal skills next, showing that they at least intuitively recognize the importance of a lawyer's ability to relate with people, including clients. Research skills followed closely; with negotiation skills and litigation or case strategy skills ranking last.

The next part of the survey asked the students to weigh the importance of a set...