Wednesday, February 4, 2015

Empathy and the Trial Lawyer

I'm meeting with a new client later today about her potential sexual harassment case. She did not want to share any information with me over the phone. So, I don't have much information to work with. All I really know is that she is a member of a protected class. That's it.

This led me think about how I approach the first meeting with a potential client. What am I trying to accomplish? What is my goal (and I'm not talking about getting a signed retainer agreement)? How can I best help the person who comes to me for help?

I think answering these questions start with empathy. "Empathy is the capacity to understand what another person is experiencing ***, ie, the capacity to place oneself in another's shoes." Empathy in my opinion is a direct link to litigation and trial strategies and outcomes. If I can understand what another person is going through then I can express to judges and juries the legal conception of that experience. This means more than pigeonholing the client's employment experience into legal elements. It means at least for me visualizing the client's experience at work. The visual has to be more than a scrapbook of snapshots over time. The visual should be like a movie because movies tell stories. The visual must be a moving picture that can be conveyed in writing and orally, as if directing a stage or screen play. This is why I tell my evidence law students to try to see in their mind's eye the facts of a lawbook case. The facts must be brought to life.

Empathy allows me to gain a sense of whether the law provides a remedy for the employee. Empathy informs me if this is someone that I can actually help. Empathy connects me to what other reasonable people are going to think about the client's workplace experience. Making that connection is key to defeating a summary judgment motion (ie., reasonable minds can come to different conclusions) and to persuading a jury to award damages.