Law schools inadvertently turn future lawyers into warriors and gladiators because of the manner in which they teach the practice of law.
For quite some time, I’ve mentioned that lawyers view themselves as warriors and gladiators. I’ve also explained that “those attracted to the practice of law are known to have low EQ levels and law school tends to erode whatever empathy those students had at the outset.”
What I’ve never really bothered explaining because it was self-explanatory to me, and I should know better than to make such assumptions, was the reasoning behind my statements.
In her blog post And Yet Another Reason We Shouldn’t Assume, Stacey Neil states, “Making assumptions is risky, full of ego, any typically inaccurate by its very nature, and yet most of us do it all the time.”
I regret having made such assumptions because I believe it led to conflict with a great many of my colleagues. I accept responsibility for my role in that conflict by having made that mistake and hope that this article helps to resolve that conflict.
In my future writings, it is my intention to link to this article in order to explain why I say that lawyers tend to behave in certain ways, rather than making a blanket statement. I also hope that my colleagues will forgive me.
In any event, it shouldn’t surprise anyone that we learn about the law in law school.
“In the words of the Oxford English Dictionary, Rule of Law is ‘The authority and influence of law in society, esp. when viewed as a constraint on individual and institutional behaviour; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes.’”
As a result, law students are taught how to “argue” whether or not particular laws and processes apply to any given situation and whether or not the laws and processes are applied equally to all members of society.
Such legal training is essential and it was never my intention to imply otherwise.
However, by making the applicability of the law center stage, law schools inadvertently teach future lawyers that the “legal answer” is the “best” or most appropriate answer in any and every given context. This is particularly the case, considering the typical personality type of individuals attracted to the field.
According to a June 1997 article from the American University Law Review titled Lawyer, Knowing Thyself: A Review of Empirical Research on Attorney Attributes Bearing on Professionalism, “Law students’ morality” is less concerned about “justice, fairness, equality, and social utility, rather than the formal rules.” It has been found that “law students disproportionately rely on analytic, rational thought to make decisions, rather than focusing on the emotional or humanistic consequences of their decisions. A disinterest in emotions and in interpersonal concerns appears to exist long before law school, even though it may be intensified during law school. As a result of their legal education, “students may ignore the social and emotional consequences of decision-making.”
For what it’s worth, “it has long been recognized that the meaning of words influences human behavior.”
Along those lines, consider the following definitions of “argue” from the Oxford English Dictionary:
“Give reasons or cite evidence in support of an idea, action, or theory, typically with the aim of persuading others to share one's view; and
Exchange or express diverging or opposite views, typically in a heated or angry way.”
I have long believed that many people entering the field of law think that because lawyers “argue”, they do so “in a heated or angry way.” In fact, this would explain why lawyers are considered to be so contentious.
However, “argue” in the sense of a lawyer’s role, is “persuading others to share one’s view.” Consider the following quote from a recent article by Laura Meherg of the Wicker Park Group: “Persuading – The art of persuasion is not about nagging, arguing or bullying. It’s about empathy and active listening.”
Irrespective, in law school, we learn about the laws in various states and even those that exist in other countries, such as Great Britain, from where much of our common law came.
I therefore once again assumed that practicing lawyers would know that laws vary greatly from state to state, country to country and change over time. As such, I assumed that practicing lawyers would know that laws can’t possibly be “fundamentally fair” in that fairness is subjective. I assumed that having been taught about laws from various jurisdictions and since lawyers are required to keep up on changes in the law, they would realize that the “legal answer” is not necessarily the “best” or most appropriate answer in any and every given context. I also assumed that the realities of the law would give lawyers perspective.
What I failed to specify was that everything is a matter of perception and we tend to get accustomed to the laws and culture of the jurisdiction in which we live and tend to confuse our comfort with those laws with our innate sense of fundamental fairness. I also failed to specify that this is particularly the case with lawyers because they already tend to be analytical and rule oriented.
To be clear, I firmly believe that “the rule of law” is essential for civilized society. However, unless we’re talking about someone “breaking the law” or their level of behavior falling below the bar set in any particular culture at any particular time, the “legal answer” is not necessarily the “best” or most appropriate answer to a given problem.
David M. Balabanian weighed in on that issue in his article titled "Client Care 2" that was published in the August 15, 2016 edition of the Los Angeles Daily Journal. In that article, he stated in pertinent part as follows:
Lawyers often complain about the difficulty of getting clients to focus on facts that have legal significance rather than on events or circumstances that are legally irrelevant or have no legal solution.
It may, however, be useful to consider whether the things the client is so keen to talk about are, in fact, the things she or he most cares about - whether or not they have legal significance. Indeed, it is conceivable that addressing the clients' declared concerns might prove equally or even more satisfying to them than vindicating legal rights of which they were previously unaware.
Identifying those concerns may also suggest non-economic accommodations that could ultimately play a useful role in resolving the matter. It is surprising how many disputes that appear to be about nothing but money are also about something else....
Your own Attitude
Although your long-term interests directly correspond to those of your client, there are occasions when they may seem to diverge as, for example, when the client settles a case you were about to try.
It is, no doubt, personally disappointing when this happens and you find yourself shredding files instead of witnesses. But, what is good for your client is, ultimately, good for you. This reality you should accept and, by your comments and actions, make clear to the client that you do."
This is also why “Lawyer paternalism is a very serious problem.”
I realize that since I graduated, law schools have begun teaching mediation. In fact, I have been a guest lecturer in such law school mediation classes.
Nevertheless, mediation is typically an elective, which means that the students are not required to take it and most don’t. Furthermore, even if it were a required course, it could not possibly undo the consequences of the training the students receive in all of their other law school classes, particularly considering what the empirical research shows about the attributes of typical law students.
Allow me to reiterate what the empirical evidence shows: “Law students’ morality” is less concerned about “justice, fairness, equality, and social utility, rather than the formal rules.” It has been found that “law students disproportionately rely on analytic, rational thought to make decisions, rather than focusing on the emotional or humanistic consequences of their decisions. A disinterest in emotions and in interpersonal concerns appears to exist long before law school, even though it may be intensified during law school. As a result of their legal education, “students may ignore the social and emotional consequences of decision-making.”
As I’ve said before, “future lawyers should be screened and trained for empathy.”
Whatever the law schools think they’re doing to address this issue is certainly not working, considering that “the level of contention has increased with each successive generation of attorneys.”
When all is said and done, it all comes down to empathy, a theme throughout my writings, comments, work, and overall approach to life.