Clients, Empathy, and Compassion: Introducing First Law Review Volume 87|Issue 1 Article 1 1-1-2008 Clients, Empathy, and Compassion: Introducing First-Year Students to the Heart of

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  • Nebraska Law Review

    Volume 87 | Issue 1 Article 1

    1-1-2008

    Clients, Empathy, and Compassion: IntroducingFirst-Year Students to the "Heart" of LawyeringKristin B. GerdyJ. Reuben Clark Law School, Brigham Young University

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    This Article is brought to you for free and open access by DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion inNebraska Law Review by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln.

    Recommended CitationKristin B. Gerdy, Clients, Empathy, and Compassion: Introducing First-Year Students to the "Heart" of Lawyering, 87 Neb. L. Rev. (2008)Available at: http://digitalcommons.unl.edu/nlr/vol87/iss1/1

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  • Kristin B. Gerdy*

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

    TABLE OF CONTENTS

    I. Introduction .......................................... 2II. Clients, Empathy, and Compassion: Do They Really

    M atter? ........ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4A. What Students Think ............................. 4B. The Clients Speak: Studies of Client Satisfaction

    and the Public Perception of Lawyers .............. 6C. Why Public Perception Matters: How Meeting Client

    Needs and Expectations Affects the Practice ofL aw ............................................... 12

    III. A Profession for the Heart and the Head: Empathy andCompassion in Legal Practice ......................... 15A. Empathy: The Cornerstone of Interpersonal

    R elations .......................................... 17B. Compassion: The Lawyer's Desire to Succor and

    A id ............................................... 24IV. 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, andCompassion in the Law School Curriculum ......... 34

    Copyright held by the NEBRASKA LAW REVIEW.Professor and Director, Rex E. Lee Advocacy Program, J. Reuben Clark Law

    School, Brigham Young University. My heartfelt gratitude to Michael Blocker forinspiring me to write this article, for his support and keen insights, for helpingme to see the law through a client's eyes, and for pushing my thinking and forcingme to delve deeper. I also want to thank Professors Linda Edwards, MichaelHigdon, and Joan Magat for their tremendous feedback and contributions to thisarticle and Professor Steve Johansen and the Legal Writing Institute for theWriters' Workshop during which I was able to share this piece with my col-leagues. In addition, I want to thank my colleagues Professors Kathy Stanchi,Pamela Lysaght, and Jane Wise for their helpful comments and for their exam-ples, both personal and professional. Finally, I owe special thanks to my researchassistant Matthew Wright for his careful and diligent assistance in the prepara-tion of this article.

  • NEBRASKA LAW REVIEW

    C. Can Client Needs, Empathy, and Compassion beTaught? ........ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

    V. Compassion and Empathy in Medical Education:Techniques for Teaching Effective "Bedside Manner"... 41A. Symbolic Entry into the Profession: "White Coat

    Cerem onies" ...... ................................ 42B. Using the Humanities to Teach Empathy and

    Com passion ....................................... 43C. Reflection Techniques ............................. 44D. Experiential Learning ............................. 48

    VI. Taking the Client Into the Classroom: Giving First-YearLaw Students Experience with Clients, Empathy, andCom passion ........................................... 52A. Symbolic Entry into the Profession: The Lawyer's

    "Briefcase" . ...... ................................. 52B. Using the Humanities to Teach Empathy and

    Com passion ....................................... 54C. Reflection Techniques ............................. 56D. Experiential Learning ............................. 58

    V II. Conclusion ............................................ 61

    I. INTRODUCTION

    If I have been charitable in my judgments of my fellow man; if I have tried tohelp him as best I could; if I have done my utmost to truly understand him, Iknow why I have taken this course-I could not help it. I could have had nocomfort or peace of mind if I had acted any other way. I have been interestedin the study of man, and the motives that move and control his life. I haverejoiced with him, and have grieved with him; I have followed my instinctsand feelings and sought to rescue the suffering when I could. But I know thatI 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. IfI had paused, I should probably still be wondering and doing nothing. I claimno credit, and I want no praise. 1

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

    Ultimately, lawyering is a delicate balancing between a constantly evolvingworld, and the fundamental principles that define our legal system. It callsupon your compassion as well as your intellect, your heart and [sic] well asyour head .... [Claring is as much a part of the legal profession as intelli-gence.... [Ilt is every lawyer's responsibility in every setting to serve others.

    2

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

    1. CLARENCE DARRow, THE STORY OF My LIFE 450 (Charles Scribner's Sons 1932).2. Karen J. Mathis, President, American Bar Association, Keynote Address at

    the Drexel University College of Law Inaugural Celebratory Dinner (Sept. 27,2006), available at http://www.abanet.org/op/mathis/speeches/drexel_univ.dinnerspeech_0906.pdf.

    [Vol. 87:1

  • CLIENTS, EMPATHY, AND COMPASSION

    want to be successful. To professionally embrace "[tihe ethics of car-ing requires [the professional to] feel as well as reason. Our naturalimpulse to care comes from compassion and human love."3 Caring isnot merely an emotional response because it requires analysis andreasoning, but "true caring.., cannot be reduced to problem solving.It emphasizes as much the motivation as the consequences of an ac-tion.... Moreover, an orientation to caring incorporates the attributesof attentiveness, honesty, patience, respect, compassion, trustworthi-ness, and sensitivity into all aspects of moral behavior."

    4

    In this piece I explore the need for instruction and experience withthe "heart" of law practice within the first year of law school.5 Accord-ing to the report on legal education prepared by the Carnegie Founda-tion, the two major limitations in American legal education are 1) alack of attention to practical education, including a marked lack of un-derstanding client problems, and 2) failure to support development ofethical and social skills.6 With the release of this report it is likelythat law school faculties throughout the United States will be lookingat their curricula to see how to better fill these gaps and better pre-pare the students to be practicing lawyers rather than legal scholars.This presents an important opportunity for law faculty, many of whomalready recognize that legal education means more than teaching stu-dents 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 notrecognize is that they are also perfectly suited to teach the "heart" oflawyering. Whether it is helping students to see their clients as realpeople with real problems or helping students to realize that empathyand compassion are critical for successful law practice, the first year oflaw school is the ideal place to begin to fill this gap in legal education.

    Understanding clients and exercising empathy and compassioncomprise the "heart" of lawyering. The Oxford English Dictionary de-fines "empathy" as "the power of projecting one's personality into (and

    3. William T. Branch, Jr., The Ethics of Caring and Medical Education, 75 ACAD.MED. 127, 128 (2000).

    4. Id.

    5. I am certainly not the first to suggest that legal education needs to pay moreattention to teaching future lawyers about interpersonal relations, clients, andempathy. One of the earliest articles to address these issues was Andrew S. Wat-son, The Quest for Professional Competence: Psychological Aspects of Legal Edu-cation, 37 U. CIN. L. REV. 91, 129 (1968) (observing, among many other things,the importance of lawyers being able to relate with others, including clients, andnoting that "[t]here is no profession which is more involved with people and theirproblems than the practice of law").

    6. WILLIAM M. SULLIVAN ET AL., EDUCATING LAWYERS: PREPARATION FOR THE PROFES-SION OF LAw: