Empathy Reform in Legal Writing

Lawyers must start acting less lawyerly when they write. Lawyers should instead seek to imagine the most charitable version of the other party’s interests and how they would feel when reading our writing. We should tune our ethical imaginations to the likely emotional responses of both the other lawyer and client to whom we write. In other words, we seek a kind of “empathy reform” in our legal writing, the quality of understanding and sharing the feelings of another. We reflect back to our audience their feelings, not ours.

Some might argue that empathy reform in legal writing threatens our duty of loyalty or advocacy to the client. It does not. It fosters the opposite. Empathy makes us better advocates. Empathy is another way of reminding us to simultaneously “know our audience” and the other side of the argument. Both are hallmarks of effective advocacy. Empathy helps us understand what motivates and drives the other parties in any legal transaction or conflict. Only through such understanding can we hope to resolve the conflict or transaction on emotionally satisfying terms, in addition to legal, factual or financial ones. And it is the emotional dimension that most often undergirds the possibility of repair in human relations. 

As we apply this mindset to our legal writing, we might begin our next email, letter or brief by stating the most favorable version of the other party’s emotions. Let’s be as charitable as possible. Let’s attribute good faith, good will and good meaning to the other side. Let’s place ourselves in their emotional space. Consider beginning with, “You are right to feel . . .” or “I understand your feeling of . . .” or similar expressions of sincere, well-considered empathy. We can also describe what feelings animate our own writing or the emotional valence of our client, not as a perch from which to preach our moral or legal rectitude, but as an invitation to mutual empathy. Nothing further should be said until we’re clear on how each sides feels. We should of course still advocate, argue and debate in our writing as needed, among the other reasons we write as lawyers. Only now we do so from the perspective that invites all sides to understanding even while they might disagree. We thereby presuppose the conditions to give and receive empathy.

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