Wednesday, February 11, 2009

Fines on Teaching Empathy as a Lawyering Skill in Ethics Classes

Posted by Alan Childress

Barbara  Glesner Fines (UMKC) has posted to SSRN her article, Teaching Empathy Through Simulation Exercises - A Guide and Sample Problem Set.  Her abstract is:

For over a decade, legal educators (particularly clinical faculty) have argued for the importance of teaching empathy as a critical component of legal education. Both the Carnegie Report and the Best Practices study have emphasized that legal education's instruction in skills - including lawyer-client relationship skills - requires greater attention. While some might argue that empathy is a skill that cannot be taught outside the context of clinical representation of clients, this simulation problem proceeds from the assumption that empathetic understanding of the client's situation is a skill that can be addressed in a variety of settings. Indeed, if empathy is left unaddressed in the classroom, legal education may further the divide of mind and heart and leave students with a message that what they learn in the classroom is an intellectual exercise of little real relevance to what they will do as an attorney.
         Professional responsibility courses are an especially appropriate classroom in which to address empathetic understanding of the client, as a key component in exploring the attorney-client relationship and the attorney's duty of communication. This role play is designed in the context of a bar admission problem. While the problem can be used to explore the substantive standards for admission to practice or the impact of law regarding disabilities on that process, the primary goal of this exercise is to explore how it feels to be a client. By placing the students in the role of a law student bar applicant - a situation Image013 that nearly every law student can imagine - the role play makes it easier for students to internalize the feelings and perspectives of the client.
        The role play includes instructions for attorney and client, documentary evidence, and a research memorandum on applicable law. Also included is an edited version of the actual case which is a basis for the problem.

Fines, shown right, also blogs at Family Law Prof Blog, including this recent post warning family law practitioners to be careful what they promise in a retainer agreement, given that a court may allow suit for breach of contract apart from legal malpractice (see also Mike's post here).

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Good idea. Having been a client and now serving as a "communications link" between a close friend and her lawyer, I have learned a great deal about what it feels like to be a client and how significant effective empathy on the part of the lawyer can be. Effective empathy can be a component of competence, make it easier for the client to deal honesty with reality and engender appreciation and respect for and confidence in the lawyer. Effusive empathy is not helpful.

Posted by: W.R. Chambers | Feb 12, 2009 5:59:36 AM

I also agree with your statement regarding the "communications link".

Posted by: Dave | Nov 4, 2009 10:47:31 PM

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