Empathy Reform in Legal Writing

December 14, 2020 by Leave a Comment

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.

Filed Under: Legal Thinking Tagged With: ,

Legal Writing – Theme is Heart of Your Writing

January 23, 2019 by Leave a Comment

As “literary lawyers” who learn from the best fiction and nonfiction writing techniques, we should keep in mind the lively importance of theme in our writing. This recent law-lit piece delves deeper into the meaning of theme and how to develop meaningful themes in your legal writing: theme heart of legal writing

Filed Under: Law and Literature, Legal Thinking, Storytelling, Values, Writing Tagged With: , ,

Welcome to Law and Literature!

December 26, 2013 by Leave a Comment

books-wallpaper-books-to-read-28990406-1024-768Do you wonder whether your legal education and your legal career can be part of a deeper, more integral vision of the law?

A vision of law that embraces as much of your imagination as intellect?

As much emotion and intuition as analysis and synthesis?

And as much story as rules, doctrines, and legal thinking?

If these questions spark some wonder in you, then you have come to the right place.

Law-Lit’s 3 promises:

  1. You will learn helpful, meaningful things about law, which is to say about yourself and your relationship with law. Law is far more than a set of rules and doctrines to guide social conduct.
  2. Law is a way of life, an ethical undertaking, an intellectual and emotional and – just as important for our study together- imaginative calling.
  3. This imaginative perspective combines stories, writing, and values about law in great literature with your conventional legal studies to deepen and enrich your education.

But law-lit doesn’t merely promise to improve your experience in, and of, the law, it promises also to improve your experience of legal education and practice.

Yes, law-lit makes the bold claim that you will have fun reading, contemplating, and discussing great works of fiction and nonfiction about the law.

Imagination, enrichment, and fun thus serve as our guiding lights toward . . .

Law-Lit’s 3 goals:

  1. To become better legal storytellers.
  2. To become better legal writers and communicators.
  3. To become more ethically attuned to the challenges and rewards of our legal careers.
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Law-Lit: Telling Better “Legal Stories”

February 2, 2013 by Leave a Comment

images-2A winning legal argument works much like a compelling story. So much so, in fact, that we might say their overlapping functions follow their shared forms. These underlying forms are by no means equivalent, but their matching anatomy reveals how both good stories and good lawyers win us over.

Let’s take story first. What makes a riveting story? At least five essentials:

  1. Setting: selected details to create a story world that invokes our senses and suspends our disbelief
  2. Character: people who engender our empathy, who want or need, who struggle, and who change through conflict
  3. Structure: conflict-driven and causally connected events that culminate in success or failure for the characters
  4. Theme: a moral premise or underlying message about how we should live our lives
  5. Style: the artist’s stamp of skill, creativity, and expertise that lends to the story’s believability

Now compare the essentials of legal argument, broadly speaking. What ingredients yield the most persuasive legal positions?images-1

  1. Details: selected facts to invoke our senses relevant to the legal dispute, or what we call “legally relevant facts”
  2. Motives: parties in the legal dispute must engender our empathy – we must understand their needs, wants, and goals
  3. Coherence: conflict-driven legal reasoning (i.e., legal argument) coupled with story to create “narrative-driven argument”
  4. Theme: a moral premise or underlying message about how we should live our lives
  5. Credibility: the lawyer’s believability, stemming from skill, practical wisdom, knowledge, and expertise

As we see, these two structures track one another in meaningful ways:

  • Details – Setting: we select the right details to invoke the senses and create a believable, engaging world
  • Motive – Character: we engender empathy for the struggling people at the center of this conflicted world
  • Coherence – Structure: the conflict resolves through striving, confrontation, and change
  • Theme – Theme: moral underpinning that gives larger meaning and connection to us
  • Credibility – Style: skill, expertise, and credibility show in the work, the work of a professional who cares

imagesNot a perfect overlap, by any means, but surely one worthy of our further study and reflection. The key differences, too, deserve our attention. This is yet another law-lit mission for us – to improve our understanding and practice of both law and literature by exploring their fundamental forms. These forms might help us tell better “legal stories” to serve our clients and the legal system, never failing our overarching duty to truthfulness and justice.

Filed Under: Legal Thinking, Rhetoric, Storytelling, Writing Tagged With: , , , ,

Law-Lit’s Mission: Imagination, Emotion, Story

January 16, 2013 by Leave a Comment

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  1. We revive our moral imaginations and intellectual empathy to compliment legal reason as a path to solving law’s problems.
  2. We engage our emotional and intuitive faculties as foundations for sound judgments in law.
  3. We discover storytelling, along with fiction and nonfiction techniques, as routes to understanding law and better writing in the legal profession.
  4. We aim to become more adept with stories, reading, and writing to enhance communication and persuasion.
  5. We seek to ethically attune ourselves to the rewards and challenges of a fulfilling career – if not a calling – in the law.
Filed Under: Legal Thinking, Rhetoric, Storytelling, Values, Writing Tagged With: , , ,

3 Reasons We Need Law and literature

November 24, 2012 by Leave a Comment
  • To do Justice!  “That’s not my job, my job is to apply the law,” famously retorted Oliver Wendell Holmes. Hence the conventional view of law: we apply known rules to guide conduct and make results predictable. Justice is secondary, if it concerns us at all. But this view disappoints, leaves us cold. We need to commit ourselves to seeking justice. We need a live debate about fairness and reason in law. We share responsibility for justice, not to hide behind our professional masks, our lawyerly jargon, and our habitual responses to legal problems. We should not leave justice to lawyers only, certainly not of the Holmes variety, but should include other voices. Literature offers many wise voices. We should listen to them.
  • To know injustice. Stories focus on particular, concrete instances of injustice. It is easier to know injustice than justice. Broad legal generalizations and rules can seem vapid, incomplete by comparison. Exposing ourselves vicariously through literature to concrete harm, loss and unfairness refines our sense of injustice. Such exposure tests our general legal propositions. And it prompts us to imagine how law might change to rectify injustice. Telling stories can ignite our moral imaginations.
  • To stop cruel formalism. Forms used to seek justice can themselves be infected with cruelties and frailties that produce injustice. We must examine our legal system’s penchant for formulaic, pat approaches to legal problems. We must counter consistency, predictability and efficiency with the realities – if not virtues – of flux and uncertainty at the core of most efforts to seek justice. This is not to deny the preeminent values of our legal system, but rather to embrace the humility that should accompany our various legal forms, procedures and rules. Literature can chasten and instruct us.

See Outside The Law: Narratives on Justice in America by Susan Richard Shreve and Porter Shreve, Editors (Beacon Press Boston, 1997) (My summary above draws from and distills the book’s introduction by Martha Minow).

Filed Under: Legal Thinking, Rhetoric, Storytelling, Values Tagged With: , , ,

Why Law and Literature?

November 9, 2012 by Leave a Comment

Simply put, law and literature helps law students and lawyers achieve the following laudable goals:

  1. To become better at persuading – especially writing. The best writer often prevails in our legal system.
  2. To make sure our persuasion satisfies high ethical standards. Never sacrifice your ethics to win.
  3. To give us a vocabulary to explain our dissatisfaction with much legal analysis. Law’s conceptual tools alone do not explain justice and injustice. We need more.
  4. To look outside the strictly legal domain for perspective on law – we can’t solve a problem from within that problem.
  5. To allow a more nuanced, sophisticated appreciation of ambiguity in law. Ambiguity about factual matters, about indeterminacy in legal decisions, and about what constrains our courts in interpreting and applying law.

These are just a few of law-lit’s contributions to the intellectual and moral lives of all those who care about law and justice.

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