While Oscar Wilde makes us think of the importance of being earnest in his comedy of manners, Brene Brown goes beyond earnest to the much greater challenge of being empathic. It’s not easy.
What relevance has this for lawyers? We lawyers have to work with people. If the truth be told, for all our vaunted ability to reason and write, it’s our people skills, our ability to convince by persuasion, which sets outstanding lawyers apart. And the deepest connections come through empathy. But there’s a catch: in order to act empathetically, we have to remain vulnerable, exposed. Ay, there’s the rub. For what self-respecting lawyer, especially one engaged in the slings and arrows of litigation, wants to reveal vulnerability and all that it entails?
What we often opt for instead is sympathy, which is quite different from empathy. Sympathy, according to Brown, disconnects us from the Other, while empathy draws us together with a person. Empathy is fellow feeling; sympathy is “That’s too bad. Now please take it away.” Empathy requires commitment and revelation; sympathy does not.
I can immediately think of two areas where we lawyers should practice empathy. First, with our clients. Think of the husband or wife who has to come in about a divorce, the parent of a child hauled into juvenile court, or the family that’s lost a loved one because of an act of negligence. How to we respond to them? It’s tough. Most clients want someone to serve as their champion, not a shoulder to cry upon. Yet, at least after a while, I think that they like to know that a human being and not a litigating cyborg represents them. (Corporations, however, may prefer litigating cyborgs.) For instance, if a client becomes involved in some form of litigation, the bad news won’t end soon. (Just the thought of a lawsuit is bad enough). Questions and doubts, hard decisions, fears and anxieties, all are likely to surface and require attention. The lawyer must balance empathy while not losing the professional judgment and demeanor that will merit a reasonable (but not absolute) degree of client confidence. It’s a fine line to walk.
The other arena in which lawyers can apply empathy is with our fellow practitioners. Let me ask this: Is there a more shitty feeling than having lost a jury trial that you know you should have and could have won? I have a hard time thinking of worse times, and I’ve suffered through more of these than I care to remember. (Adverse written decisions aren’t much better, but they seem just a bit less of a punch in the gut.) I’ve greatly appreciated calls from colleagues after a loss, those who’ve suffered similar fates at times in their careers. It doesn’t make it all better, but you do have a sense of a bit less loneliness in your misery, which certainly helps. Victory has a thousand fathers; defeat none. But at least you can have some who can mourn with you over your failure.
Without further ado, here’s the website for the Brene Brown piece. She’s a very engaging speaker, and I must also recommend this site to you. Brain Pickings blog, from which this post is taken (recommended reading) provides high quality and consistent content on a number of topics that lawyers and others will find interesting.