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.

[You didn't need to repeat your first version, because all prior versions are available using the "diffs" button, so I removed it. ]

• This revision tried to take advantage of my comments on the prior draft, but it needed more careful outlining. A look at the headings alone suggests a clearer line of argument than you developed, which indicates that the problems were encountered in organizing below the level of the section headings. ( This is a good reason for outlining to the paragraph or sentence level, at least most of the time, before drafting).

• Maybe we could begin by asking about empathy. Strictly denoted, it means a direct simultaneous experience of another's emotions. But in practice, even the most intuitive among us is also using conscious reasoning to approximate the emotional state of someone else. How do we think our way into others' situations? Experience is of course relevant. But young people have less to go on than their more experienced elders no matter how often they are rotated into a different service, or even a different society, so it won't do to prescribe age alone. Learning to think about other peoples' thinking about their experience, so that their feelings, motivations and perceptions aren't "other" to us anymore, is the purpose of our activity as lawyers, as it is the purpose of ethnographers, therapists, salesmen, advertisers, actors, as well as myriad other specialties kindred in this if in nothing else, that they require the development of insight into others' emotional condition. How do we train ourselves in empathy, for the particular purposes we have in sight?

• From there (a set of questions in which I take a great interest, for they are in some sense the questions that lie behind the particular intellectual choices made in this course) one can go in several directions on which your essay already touches. There are of course questions about how to organize one's practice—questions that are invisible if one thinks of one's practice as something other people are always going to organize for you—and questions about how we collectively should organize the profession of which we are each part. You might go in many ways, and I'm still not sure after two drafts which would be the most interesting ways for you. But I do think it would be possible to take the essay, in any one of a number of directions, further than you have so far taken it.