Thinking Like Non-Lawyers: Why Empathy is a Core Lawyering Skill and Why Legal Education Should Change to Reflect Its Importance

Abstract

This article is an exploration of some of the issues raised by the recent Carnegie Report on Educating Lawyers, and contains a recommendation that law schools change the way they teach especially first year law students in order to make them more empathetically aware of the circumstances by which the court opinions they study arose and the effects those opinions will have on others. The article argues that such changes will not just make lawyers better people, they will also make them better lawyers. The article examines the dangers inherent in an overemphasis on the “logical” form of analysis taught in law schools, and explores in depth two examples of logical thinking that failed to persuade non-lawyers, in the form of a jury. The article also looks at one strikingly successful example of empathetic lawyering – Max Steur’s cross-examination of a key witness during the Triangle Shirtwaist Fire trial – to show how a lawyer who is empathetically attuned with a jury can be devastatingly effective. The article offers specific proposals to help law schools ameliorate the dangers of an over-emphasis on “thinking like a lawyer” before, during, and after a student’s formal legal education.

Keywords: Legal Education, Empathy