Empathy: The Lawyer’s Superpower

Earlier this year I deleted all my streaming apps - no more Netflix, Amazon Prime Video, Disney+, Apple TV or whatever. I only kept YouTube and YouTube Music. My friend then informed me last week that Apple TV had become available for all Apple users, which I couldn’t believe at first but found to be true. So of course, what ensues? THE BINGE – the thumbnails for all the Apple TV series I had heard about but not watched floated across my screen, drawing me in slowly.

An unassuming programme came forward, called “Big Door Prize”. Not the most compelling title, but it stars Chris O’Dowd (who is hilarious), so I gave it a shot. What followed was a pleasantly surprising show with a simple premise: A mysterious machine called the “Morpho machine” appears in a small town, predicting the "life potential" of the local residents, and chaos ensues. The machine issues a card with a single word, which is supposed to tell you what your ultimate life potential is. Who would believe in something so ridiculous? 

But somehow each person seems to receive a word that strikes a chord deep within them that unlocks some form of inner longing or repressed gifting within them. Each person became motivated to discover their full potential and unlock their “superpower”.

Image taken from: https://www.apple.com/tv-pr/news/2023/01/apples-new-comedy-the-big-door-prize-from-emmy-award-winning-creator-david-west-read-to-make-global-debut-spring-2023/

“Big Door Prize” brought me back to a reflection I had about being a lawyer a while back. The phrase that came to mind was that “empathy is the often overlooked but vastly important trait that makes a lawyer good at what they do; Empathy is a lawyer’s superpower”.

Why Empathy?

Why did I arrive at such a view? Although a lot of our work involves solitary tasks like research, documentation, drafting and poring over evidence for hours, at the end of the day, each case involves real people, with their own proclivities, sensitivities, preferences, and ways of receiving and processing information (just as we have our own). If a team is to work together, we can’t expect everyone to magically think and respond in a similar manner to ourselves, because we are all distinct individuals coming from different places. The same applies to client interactions, interactions with opposing counsel, interactions with witnesses, and advocacy before the Court. We’re not mind readers, but we have the cognitive ability as humans to “read people” and adjust our behaviour accordingly to get our message across and to advance our client’s interests.

In psychology, this is often referred to as the “Theory of Mind”, which is described as an important social-cognitive skill that involves the ability to think about mental states, both your own and those of others, and encompasses the ability to attribute mental states, including emotions, desires, beliefs, and knowledge, and recognize that other people’s thoughts and beliefs may differ from yours (Kenda Cherry, MSEd, How the Theory of Mind Helps Us Understand Others, accessible at: https://www.verywellmind.com/theory-of-mind-4176826).

The Occupational Hazard

However, as lawyers, we often fail to tap on our own Theory of Mind when it comes to our work. We go into battle mode as litigators and push aside notions of empathy in favour of a single-minded pursuit of the client’s case. This may take the form of, for example, asserting a fierce legal position at the outset, with guns blazing, or getting caught up with our legal strategy in framing our arguments to the Court.

Without tapping on our Theory of Mind and considering how all the relevant stakeholders will react to our positioning, communications and arguments, we may end up missing out on considerations that ultimately prove essential to our client’s outcomes, since these necessarily rest on how affected individuals (including individuals behind companies and opposing counsel) and the Courts perceive and respond to our own conduct and strategies.

For example, the Court is not concerned with the dogged pursuit of your client’s case, but with the actual state of the law and the doing of justice between the parties. This is something that cannot be forgotten in the pursuit of a client’s case. In our transactional work, we may react to the “ridiculous” suggestion of a contracting party without attempting to understand the rationale for such a suggestion and the interest it seeks to protect, in the process losing out on an opportunity for a simple compromise.

Over the last few years in practice, I’ve seen how tapping into my own “Theory of Mind” has assisted me in honing my legal strategies and arguments, as well as in understanding my clients and colleagues.

The interesting thing is that this is often underplayed and overlooked (or sometimes seen as a weakness even). But the sensitivity to the human condition should and does lie at the core of our jobs as lawyers, if what we really want to do is to help our client accomplish their goals in a manner that suits their interests and circumstances.

"The sensitivity to the human condition should and does lie at the core of our jobs as lawyers, if what we really want to do is to help our clients accomplish their goals in a manner that suits their interests and circumstances." 

The Good News

The good news is that we can all work on developing our own Theory of Mind and building our capacity for empathy (although probably to varying degrees, depending on our own personal traits etc.). Recent studies have shown that empathy is a trait that is malleable in adults; empathy is transmitted by learning from the observed empathic reactions of others. This is not merely an act of imitation but is an observable neural change that occurs when we operate, function and observe empathy in the environment around us. In a professional context therefore, investing in an empathetic environment can be seen as a worthwhile endeavour, especially so if it helps us become better lawyers.

According to Grit Hein, professor at the Department of Psychiatry at the University of Wurzburg, for empathy to thrive long-term, it requires an atmosphere of mutual respect: “One can respect someone without having empathy for that person, but it is challenging to develop empathy if the other person is not respected as a human or if disrespect is accepted in society.” (Grit Hein, Shaping Empathy: Adult Brains Can Learn Compassion, accessible at: https://neurosciencenews.com/empathy-learning-psychology-25657/).

Conclusion

I’m still learning how to navigate professional relationships and communications as I continue to grow as a legal professional. But one thing I hope to do moving forward is to influence the working environment around me with a touch of empathy wherever I can, and to similarly surround myself with individuals I can learn from, who come from a place of genuine regard for the people we encounter daily in the conduct of the profession. The thought of it makes me happy and optimistic about the future, though it will certainly not be easy, especially with the stresses of legal practice, and the variety of characters and challenges we may encounter in the course of our work. The good news is that each day presents a new opportunity for growth and movement towards something different.