Is empathy really useful for a family law attorney?

Posted Thursday, January 5th, 2017 by Gregory Forman
Filed under Attorney-Client Relations, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

A recent New York Times ROOM for DEBATE discussed Does Empathy Guide or Hinder Moral Action? The anti-empathy debater defined it as “the capacity to experience the feeling of others, and particularly others’ suffering.” He believes our culture confuses empathy with compassion, and that empathy is a hindrance to making wise and moral decisions.

Family law clients often are seeking an empathic attorney. Yet I agree with the anti-empathy debater. In fact, on more than one occasion I have been told I am one of the least empathic folks the speaker knows. Every bit of legal training and experience has taught me the dangers of taking on my clients’ emotions. While I used to see this “anti-empathy” accusation as a sign of a moral flaw, I now tend to see it as an unintended compliment.

Law school teaches budding attorneys to be dispassionate–hence anti-empathetic–in myriad ways. We are drilled to “look at both sides of this issue” and “to learn to disagree without being disagreeable.” Family court litigants are often, for good reason, upset and highly emotional. Having compassion for their situation is an absolute requirement for being an effective family law attorney. Taking on their emotional state is counterproductive and dangerous as it interferes with the professional detachment necessary to provide proper legal advice.

A most obvious example is attending a hearing in which a client is very upset about the matter at issue. Addressing the court while mirroring the client’s emotional state will not only be counterproductive–the court is unlikely to respond to highly charged, ill reasoned argument–it could possibly land the attorney in jail for contempt of court.

Further, law school and the practice of law require an attorney to understand and consider both sides’ position. With some exceptions, family law attorneys generally do not get to choose which party to represent: they represent the side willing to hire them. I have to have compassion for both the adulterous spouse and the cheated-upon spouse, the abusive spouse (or parent) and the abused spouse, the husband and the wife, the mother and the father. Empathy for an abusive or adulterous spouse is distasteful and dangerous. Compassion for their situation is all that can reasonably be asked of an attorney.

Yet, even if one is representing the abused or cheated-upon spouse, one must still have some compassion for the opposing party. Understanding that party’s position and needs is key to crafting a mutually agreeable resolution–and an attorney who cannot settle the vast majority of his or her cases is doing his or her clients a disservice. For those cases that do not settle, understanding the other party’s position is a vital first step to countering that position in a contested hearing.

Further, even empathy for an “innocent” spouse or parent is dangerous. At some point one will likely need to counsel that party to compromise on some issues to achieve a beneficial result. Any attorney who mirrors that client’s emotions will be unable to give that client sound advice: how do you counsel such parties to compromise with someone they, and now the “empathetic” attorney, perceive as evil?

Taking on one’s clients’ emotions is dangerous. It clouds judgment, hinders settlement, and leads to poor strategic decision making. An empathetic family law attorney is a bad family law attorney.

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