TEACHING BIOETHICS: THE ROLE OF EMPATHY & HUMILITY IN THE TEACHING AND PRACTICE OF LAW.

Author:Noah, Barbara A.
 
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Atticus Finch would not recognize most lawyers who graduate from elite law schools these days. According to recent American Bar Association employment data, elite law school graduates accept offers of employment primarily with large, urban law firms. (1) By contrast, the vast majority of graduates of the small New England law school where I teach Torts and various health law courses will join small firms, work for municipal or state governmental agencies, or venture into solo practice. (2) In these positions, the students graduating from our school overwhelmingly work with individual clients or small businesses, not corporations, (3) and must learn to serve these individual clients with compassion and empathy, as well as a thorough knowledge of the law.

In general, American legal education takes a multi-tiered approach to teaching students about law. Students learn "black letter" law, the doctrinal rules from common law and statutes that govern various areas of law and that are accepted in most states. (4) They also learn legal reasoning and the practical aspects of applying legal doctrine to specific lawyers' tasks. (5) We attempt to instill in our students problem-solving ability, creativity, and excellence in legal analysis. (6) Yet another layer of legal education involves teaching students about the appropriate balance between the positive and normative aspects of law. (7)

More recently, law schools also have begun to emphasize skills training to prepare students with actual experience that will assist them in practicing law. (8) Of course, teaching skills is very important, but it can be a rather hollow exercise without a concomitant interest in and ability to understand one's fellow human beings. A technocratic emphasis on knowledge and skills sets lawyers apart from their clients and makes them powerful, but gives little attention to the lawyer's role as counsellor. Instead, the popular portrayal of lawyers often celebrates the dramatic courtroom victory, the large damages payout, the vindication of the rights of the underdog client, in all such instances emphasizing the lawyer's power to persuade using the law as a tool, or even a sword. The flipside of these portrayals vilifies lawyers as dishonest manipulators who will say or do almost anything for a win, hence the lawyer jokes that we are all familiar with. (9) But, as we all know, the practice of law is not solely about persuasion in the context of adversarial proceedings. It is also about providing counsel, support, and comfort to individual clients in distress.

As counsellors, lawyers frequently take care of people who are facing some of the most emotionally or financially stressful events of their lives. In the context of estate and end-of-life planning, for example, lawyers have the occasion--if they choose to use it--to help clients make and memorialize decisions about one of life's most intimate and personal matters, and to do this in a way that is meaningful, effective, and humane. Rates of advance directive completion in the United States remain low, (10) but clients who do engage in advance care planning generally do so in one of two circumstances. In one scenario, the client agrees to complete advance care planning documents such as a living will or a health care proxy as part of an effort to order their affairs for the future, often in combination with making a will. In another scenario, the client is currently confronting a life-threatening illness and chooses to make specific plans about the care and treatment they desire in the context of the particular illness.

Particularly in this second context, attorneys who practice in this area sometimes must talk with clients about end-of-life choices while these clients are in the grips of what philosophers and psychiatrists call "mortal terror," (11) (a phrase which seems perversely designed to perpetuate the very idea it represents). The lawyer as counsellor (rather than powerful technocrat) supplies legal expertise and experience but also has the opportunity to sustain these clients as they exercise their legal rights of medical decision-making during a time of stress and anxiety. In any event, whether these conversations take place in the context of recently diagnosed life-threatening illness or simply as part of "ordering the client's affairs," the conversation between client and attorney presents an opportunity for the attorney to provide the client with some contextual information about end-of-life care delivery, along with discussion of the client's values and goals regarding the dying process.

I teach two courses in which students can learn about advance care planning and end-of-life decision-making: Bioethics & Law and an End-of-Life Law seminar. This essay contains reflections on what I have learned from teaching these courses, particularly the seminar, and what I hope to accomplish in educating our students about end-of-life issues and about how they can serve their clients with empathy and humility.

A comparison of medical education with legal education reveals some interesting similarities and a few compelling differences. Medical education trains students initially in the basics of medicine, such as anatomy and physiology--the "black letter" of medicine. Students also learn skills, first by dissecting a cadaver and by practicing various basic techniques on medical simulation manikins and on each other. Later, these students improve their skills through clinical rotations (similar, in principle, to law school clinics), caring for patients under the supervision of fully qualified physicians in various medical specialties during the four years of graduate medical education and later during residency in particular specialties. But, like law students, medical students receive little or no training in communication with or counselling patients. (12) This lack of training leaves new physicians with little ability to talk with patients about dying or about making decisions at the end of life. Instead, medical training, much like legal education, focuses on the role of physician as healer and problem-solver, the conqueror of illness and injury.

As new lawyers and physicians quickly learn, their black letter knowledge and skills training only take them so far. Life's complications, both legal and medical, sometimes are susceptible to neither cure nor amelioration. Lawyers often represent clients whose problems lack a simple, obvious or sometimes even any solution. Lawyers must then help their clients to navigate a range of choices, each with its own burdens and benefits, all with unquantifiable probabilities of success and failure. Similarly, physicians treat patients for whom multiple avenues of treatment--surgery, drug therapy, watchful waiting--or palliative care only, may be appropriate, depending on the patient's preferences, goals of treatment, and tolerance for risk. In these ambiguous and ambivalent legal and medical scenarios, training in black letter law or in anatomy and best clinical practices--even training in legal advocacy or surgical technique--does not fully equip the professional to help the client or patient. In these cases, where there is no black and white, no yes-or-no decision point, lawyers and physicians face a significant choice--to make their best recommendation, ask the client/patient to let them implement it, and hope for a good outcome; or to take the more difficult path and struggle with the client or patient to acknowledge the ambiguity and ambivalence of the situation and to navigate the gradations of gray.

In my opinion, our job as law professors is not only to train lawyers in black letter law, legal reasoning, oral argument skills, and the like but also to help students to develop the desire and ability to, with knowledge, skill, and compassion, appropriately counsel clients who face emotionally challenging circumstances. Legal education, like medical education, should include training in listening ability, cultural competence, and the ability to experience the problem and grapple with it through the eyes of the client. In Atticus Finch's approach to the world and his clients, empathy was his guiding principle. As he explained to young Scout, "... if you can learn a simple trick, ... you'll get along a lot better with all kinds of folks. You never really understand a person until you consider things from his point of view ... until you climb into his skin and walk around in it." (13) The best lawyers have the requisite knowledge and skill, leavened with a dollop of genuine empathy.

The practices of law (and medicine) also require humility. Lawyers and physicians learn to be open to the fact that some problems (legal or medical) can trigger different but still valid responses in different individuals. Lawyers (and physicians) will most often earn the trust of their clients (and patients), and therefore do their best for them, when they are willing to let the client/patient challenge their assumptions in every encounter. Each time that a lawyer counsels a client or that a physician treats a patient presents an opportunity for the professional to learn from that individual in order for the client/patient to arrive at a better outcome. For law students and medical students who understand the value of empathy and humility into their encounters with clients and patients, the practice of law or medicine becomes not merely a job but a vocation. (14)

Human beings are, naturally, variable in temperament. Some people are patient by nature, others not. Some find it easy...

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