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Empathy Training for Lawyers and Law Students

Authors:
John Barkai at University of Hawaiʻi at Mānoa
John Barkai
Virginia O. Fine
Virginia O. Fine
Virginia O. Fine
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Abstract

This article describes a systematicallly designed training program intended to assist lawyers and law students in developing empathic communication skills that will facilitate initial rapport between them and their clients. Most people would describe these skills as 'active listening' or 'empathy statements.' The program empirically demonstrates that with only four hours of training lawyers and law students can learn to respond empathetically to clients. The article also advances arguments that explain why empathetic responses are important for lawyers, and reviews the literature on empathy training in other disciplines.
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Electronic copy available at: http://ssrn.com/abstract=1435498
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Electronic copy available at: http://ssrn.com/abstract=1435498
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... The relevance of empathy to legal practice has been considered in several legal articles (Barkai & Fine 1983;Gallacher 2010;James 2005;Westaby & Jones 2018). The authors suggested that empathy in lawyers results in better client satisfaction and client outcomes; for example, a better understanding of a client's needs, building of trust and rapport, improved communication and provision of appropriate solutions (Gallacher 2010;Westaby & Jones 2018). ...
... Although corporate lawyers typically provide advice for the benefit of an organisations their interactions are with individuals who will expect a lawyer to have well-developed interpersonal skills (including empathy) so they can build trust, optimise communication and fulfil their client's needs. Thus, empathy is a crucial tool assisting lawyers to accurately comprehend the problems they are helping their clients to solve (Westaby & Jones 2018) and providing an optimal client experience (Barkai & Fine 1983;Gallacher 2010;James 2005;Westaby & Jones 2018). However, at the same time, lawyers need to remain detached and impartial to fulfil their professional legal duties to clients (Westaby & Jones 2018). ...
... POS, supervisor support) are thought to contribute to feelings of stress and distress in workers (Thorsteinsson et al. 2014). In turn, this stress/distress may impair a worker's capacity for empathy (Grühn et al. 2008) despite its crucial role in effective client interaction (Barkai & Fine 1983;Gallacher 2010;James 2005;Westaby & Jones 2018). Consistent with these findings, we examined whether workplace factors predicted levels of stress/affective distress in lawyers, and in turn, if this distress was linked to lower empathy levels (as a proxy measure of lawyer's communication performance). ...
Relationships between workplace characteristics, psychological stress, affective distress, burnout and empathy in lawyers
Article
  • Feb 2022
... Second, collaboration provides additional benefit for law students as social work students are taught specific professional skills that though equally advantageous to lawyers are not frequently acquired during law school (Aiken and Wizner 2003;Barkai and Fine 1983;Feldman and Wilson 1981). Aiken and Wizner (2003) identified these skills to be "empathic interviewing, listening, and counseling; crosscultural awareness and sensitivity; identification of the causes of clients' problems; assisting clients to formulate goals and strategies for achieving them; crisis intervention; group work; and community organization" (p. ...
... Coleman (2001) concurs with Aiken and Wizner but also considers the ability to evaluate and refer clients as additional skills taught in the social work curricula that are also beneficial for lawyers. Barkai and Fine (1983) recognize that legal cases are fraught with emotional components for clients that cannot be ignored. Further the authors state that "good lawyering resembles good therapy" (Barkai and Fine 1983, p. 511). ...
... Further the authors state that "good lawyering resembles good therapy" (Barkai and Fine 1983, p. 511). Though law students may be tempted to focus solely on the facts of the client's legal issue (Barkai and Fine 1983;Feldman and Wilson 1981), social work students are taught to utilize systems and ecological approaches to understand more holistically the client's issue (Coleman 2001). Additionally, law students may assume that their legal competence will be enough to ensure client satisfaction. ...
Legal Education for Human Rights Work: Social Work Practicum Students in Forensic Placements
Article
Full-text available
  • Mar 2021
The Council on Social Work Education tasks social work programs to ensure students illustrate competency with regard to advocating for and advancing human rights. Given the three generations of human rights experience differing levels of guarantee and protection, multiple tools are needed in order to advance human rights across the board. As human rights cannot be sufficiently realized until they are protected by law, many of those tools are made more useful when combined with knowledge of the legal system and processes. Advocacy is a key aspect of social work practice, and therefore social work education provides a solid foundational understanding on the legislative branch of government. However, as all three branches of government have the ability to impact human rights law, social work programs are advised to integrate more opportunities for students to learn about the judicial and executive branches as well. Recognizing that not all programs are positioned to inject forensic social work education into their curriculum, an interprofessional practicum model that integrates social work students into university legal clinics is provided.
... Second, collaboration provides additional benefit for law students as social work students are taught specific professional skills that though equally advantageous to lawyers are not frequently acquired during law school (Aiken & Wizner, 2003;Barkai & Fine, 1983;Feldman & Wilson, 1981). Aiken and Wizner (2003) identified these skills to be "empathic interviewing, listening, and counseling; cross-cultural awareness and sensitivity; identification of the causes of clients' problems; assisting clients to formulate goals and strategies for achieving them; crisis intervention; group work; and community organization" (p. ...
... Coleman (2001) concurs with Aiken and Wizner but also considers the ability to evaluate and refer clients as additional skills taught in the social work curricula that are also beneficial for lawyers. Barkai and Fine (1983) recognize that legal cases are fraught with emotional components for clients that cannot be ignored. Further the authors state that "good lawyering resembles good therapy" (Barkai & Fine, 1983, p. 511). ...
... Further the authors state that "good lawyering resembles good therapy" (Barkai & Fine, 1983, p. 511). Though law students may be tempted to focus solely on the facts of the client's legal issue (Barkai & Fine, 1983;Feldman & Wilson, 1981), social work students are taught to utilize systems and ecological approaches to understand more holistically the client's issue (Coleman, 2001). ...
Legal Education for Human Rights Work: Social Work Practicum Students in Forensic Placements
Preprint
Full-text available
  • Mar 2020
The Council on Social Work Education tasks social work programs to ensure students illustrate competency with regard to advocating for and advancing human rights. Given the three generations of human rights experience differing levels of guarantee and protection, multiple tools are needed in order to advance human rights across the board. As human rights cannot be sufficiently realized until they are protected by law, many of those tools are made more useful when combined with knowledge of the legal system and processes. Advocacy is a key aspect of social work practice, and therefore social work education provides a solid foundational understanding on the legislative branch of government. However, as all three branches of government have the ability to impact human rights law, we advise social work programs to integrate more opportunities for students to learn about the judicial and executive branches as well. Recognizing that not all programs are positioned to inject forensic social work education into their curriculum, we discuss an interdisciplinary practicum model that integrates social work students into university legal clinics.
... Research into clients' perceptions of lawyers found that strong interpersonal and communication skills were perceived as being as important, if not more important, than the lawyer's legal expertise and skills (Bocaccini & Brodsky 2001;Bocaccini et al., 2002;Peterson-Badali et al., 2007). It was also argued that strong communication skills, such as showing empathy, help lawyers to achieve the desired "legal" outcomes for their clients (Barkai & Fine, 1983). ...
... By contrast, effective communication and interpersonal skills, such as active listening, empathy, effective questioning and summarising skills, and positive confrontation skills are very important in this context. Thus, empathy and active listening are crucial to establish rapport and begin to develop the trusting relationship during the first lawyer-client encounters (Barkai & Fine, 1983). Active listening, effective questioning (the ability to ask good questions) and summarising skills are necessary to obtain as much information as possible from the client (Maughan & Webb, 2005;Cochran, 2018). ...
Contemporary criminal defence practice: importance of active involvement at the investigative stage and related training requirements
Article
Full-text available
  • Dec 2019
The shifting focus of criminal proceedings from the trial to the pre-trial stages leads to a changing role of criminal defence practitioners across Europe. European criminal defence lawyers are now expected to enter the proceedings earlier and exercise “active” and “participatory” defence as early as the investigative stage. Criminal lawyers, trained in the traditional trial-centred paradigm, are ill-prepared for this role, which results in an important skills gap. Legal representation at the investigative stage presents unique challenges, such as shortage of information, time pressures and the closed nature of pre-trial proceedings. It requires lawyers to operate in a more complex communication environment, than the one to which they have been accustomed. This article sets out the main elements of a professional training programme aiming to fill in the emerging skills gap. The training programme (SUPRALAT) was successfully implemented in Belgium, Hungary, Ireland and the Netherlands, and is being expanded further. The training focuses on effective communication skills, experiential learning and the development of reflective skills. It includes elements of interprofessional training and encourages the development of “communities of practice”.
... The analysis of this data fragment, in which the lawyer tries to manage the interaction by indicating the institutional conditions of time constraints, foregrounds how the need for efficiency poses a challenge in the face of the client's emotions and lifeworld concerns. Within scholarly literature, a shift can be noticed with regard to the ways in which the role of the lawyer is characterised (Barkai and Fine 1982;Jacobs and Maryns 2021;Westaby and Jones 2018;Zwier and Hamric 1996): whereas law used to be regarded as an objective and rational undertaking, the inherently emotional dimension of legal problems, and accordingly the importance of trust and rapport between lawyer and client, is foregrounded in contemporary job descriptions of legal practitioners. The idea that there is an inherent emotional dimension to law can be nuanced when it comes to certain branches of the law, but it is clearly relevant when it comes to asylum law. ...
The metapragmatics of legal advice communication in the field of immigration law
Article
  • Dec 2021
Metapragmatic comments are crucial in lawyers’ attempts at managing legal advice communication with asylum seekers. Drawing on linguistic-ethnographic fieldwork in the Dutch-speaking part of Belgium, this paper aims to demonstrate how/when/why textual features which tell interactants how to interpret the ongoing speech are used in the context of lawyer-client communication in the field of immigration law. The data analysis reveals how lawyers frame the discursive conditions (i.e. linguistic diversity, the institutional need for efficiency and the presence of emotional lifeworld concerns) of the local interaction in the lawyer’s office. This is necessary as clients are not always acquainted with the discursive routines of the legal consultation, nor aware of its position within the wider chain of discursive asylum events. As many aspects of the legal advice context resemble the interactional conditions of the government-asylum seeker communication, it proves key yet challenging for lawyers to metapragmatically signal their advocating role in a way that enables a relationship of rapport with their client.
... In legal settings, the relationship between wellbeing and empathy remains mostly unexplored. However, there is a body of literature arguing that its use enhances client care, develops trust, facilitates effective representation and potentially improves interactions and negotiations with other parties and their representatives (Gallacher, 2012;Gerada Brown, 2012;Gerdy, 2008;Barkai & Fine, 1983). There have also been suggestions that empathy may have a role in developing a greater appreciation of the way in which the law works, its relationship with society and its interplay with social justice and ethics through the insight it provides into the experiences of others, as well as in challenging potentially damaging forms of adversarialism by promoting more collaborative ways of working (Deigh, 2011;Margulies, 1999, Rosenberg, 2002. ...
Fostering Empathy in Clinical Teaching and Learning Environments: A Unified Approach
Article
Full-text available
  • Oct 2019
This paper draws together broad insights into the notion of empathy, with specific lessons learned from current approaches to empathy within both law and medicine. The role of empathy is becoming more central to modern professionalism in both fields as they demonstrate a movement towards partnership-building, with an emphasis on patient-centred decision-making in medicine and more holistic, personalised client care within law. The paper aims to identify fundamental principles to inform the development of a unified approach to the inclusion of empathy within clinical teaching and learning environments. These principles can then be used as a basis to highlight and share best practice and consider common challenges and opportunities, as well as being drawn upon by those working within interdisciplinary clinical partnerships. Identifying and exploring fundamental principles will assist in ensuring that empathy is acknowledged and utilised in a psychologically and emotionally healthy and appropriate manner to benefit the students, clients, patients and other stakeholders involved.
... Empathy is thought to play an important role in the development of a number of abilities associated with effective legal practice. Empathy can be useful for lawyers and judges in: (1) developing communication skills and facilitating rapport between lawyer and client (Barkai & Fine, 1983;Duffy & Field, 2014) or judge and litigant (Duffy, 2011;Mack & Roach Anleu, 2011); (2) effective persuasion and influencing behaviours common in adversarial (Montgomery, 2008) and nonadversarial processes (Douglas & Coburn, 2009;Freiberg, 2007;King, 2008) and (3) sound legal analysis and decision-making (Gerdy, 2008;Weisbrot, 2002). Lawyers who are more empathetic may be more likely to uphold professional standards (Christian & Alm, 2014). ...
Measuring empathy in undergraduate law students: Examining the factorial validity of the Jefferson Scale of Empathy - Law Students (JSE-LS)
Article
  • May 2018
Several scholars have hypothesised a link between empathy and a range of important outcomes for law students including well-being, mental health and the development of effective client-lawyer relationships. However, few studies have examined these claims empirically. Empirical investigation of empathy among law students requires effective methods of measuring empathy. The present study sought to examine an instrument designed specifically to measure empathy among law students – the Jefferson Empathy Scale - Law Students (JSE-LS). The study involved examining the internal consistency and factor structure of the instrument using a sample of 276 Australian undergraduate law students. The study found that a four-factor solution was optimal for the dataset. Two of the factors were readily interpretable with previous literature, however the remaining two factors were unstable, suggesting the need for further revision of the instrument. Recommendations for revising the JSE-LS to better measure empathy are discussed.
Managing narratives, managing identities: Language and credibility in legal consultations with asylum seekers
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  • Mar 2021
This study examines interactional management practices and narrative coconstruction in lawyer-asylum seeker consultations in Flanders, Belgium. Drawing upon linguistic-ethnographic fieldwork, it presents a case study of a consultation between an Afghan applicant for international protection, his adviser, and his lawyer. The purpose of the consultation is to prepare the applicant for testifying at the upcoming asylum hearing. Data analysis focuses on (i) the reorientation of the asylum narrative from an authentic-experiential towards amore objectified formal-institutional account; (ii) the participants’ positioning work that indexes this reorientation process; and (iii) their fluctuating alignment of local-interactional and translocal-gatekeeping perspectives. In the discussion, we analyse the consultation in terms of competing legal and experiential voices and views on participant roles=responsibilities.We reflect on how this ambiguity of roles and ideologies relates to the constructed character of credibility, which reveals the importance of adequate legal assistance in this linguistically challenging context.
Connectivity, confidentiality and confidence: Key issues in the provision of online pro bono activities
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Full-text available
  • Aug 2018
The provision of pro bono activities for law students has become an established feature of the undergraduate legal education landscape in Law Schools in the United Kingdom (“UK”) and beyond, providing the experiential elements of clinical legal education programmes. Pro bono activities conducted online, or utilising and enhanced by technologies in other ways (for example, through the development of a mobile phone application providing legal guidance), are increasingly becoming a part of this offering, reflecting wider shifts within legal practice and society and an increasing recognition of the importance of digital literacy skills. This paper will situate these forms of online and technologically-enhanced pro bono activities both within the wider context of contemporary clinical legal education and also as a part of broader professional and societal shifts. It will explore a variety of innovative approaches being taken internationally, including work done by The Open University’s Open Justice Centre in the UK, before moving on to focus on a number of key challenges and opportunities which may arise through the increasing provision of these new forms of pro bono activities by Law Schools. These include the potential and pitfalls of the technology involved, issues with confidentiality (particularly in the context of online legal advice) and the issue of how to foster trust in the online environment. The paper will conclude with a number of suggestions for areas requiring further research and discussion to enable contemporary clinicians to fully utilise the potential of online and technologically-enhanced pro bono activities.
Empathy: an essential element of legal practice or ‘never the twain shall meet’?
Article
  • Aug 2017
In a climate where the work of the legal profession is changing and evolving rapidly, this article considers the potential for empathy to be incorporated as an essential element of legal practice. This challenges the conceptions of legal practice held by many legal professionals and law students but draws on increasing scientific evidence demonstrating the interaction between cognition and affect and reflects the emotional realities of life in practice. This article will consider the different definitions of empathy and argue that it is necessary for it to be conceptualised in a way which draws upon both cognitive and affective elements. When empathy is interpreted in this way it can provide both a more effective form of practice and a deeper appreciation of ethics and values. This article will argue that to incorporate empathy in this way requires a richer, more nuanced consideration of the benefits and challenges involved in its use. However, embedding it throughout legal education, training and legal practice would more than reward such a careful evaluation of its role.
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