Berks County Bar Association The Berks Barrister Spring 2019 - 47

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Closing Argument

ATTICUS FINCH AND EMPATHY

By Donald F. Smith, Jr., Esquire

confess. I had expressed this attempt at humor too many
times, each time eliciting a chuckle from my listener, always a
private practitioner of the law: "The practice of law would be so
much more fun if we did not have clients!"
Obviously, without clients there is no private practice. But
clients can create stress with unreasonable expectations; angry
attitudes; demanding phone calls; nasty emails; questioning the
legal advice ("not what the internet says"); questioning the fee;
and threatening to retain someone else who will be their desired
puppet!
The practice of law is stressful enough; the client should not be
adding to the stress with verbal abuse. Then, during our Pro Bono
Celebration last October, I had an epiphany.
The keynote speaker for the event was Nikki Johnson-Huston,
a successful Philadelphia tax attorney. She had
grown up in poverty, was homeless for a period of
time and at that time was represented by a legal
aid attorney. A particular comment by her, as a
former client, was enlightening: "Please treat the
client with dignity and respect, even if the client is
angry or difficult. That is how the client in need
expresses frustration."
For me, her insight highlighted the need to
appreciate the client's situation; the anger can
be justified and should not be ridiculed. Atticus
Finch's observation shared in To Kill a Mockingbird
came to mind: "You never really understand a
person until you consider things from his point
of view-until you climb into his skin and walk
around in it."
Obviously, Finch's comment does not mean the attorney
becomes the client's unfiltered mouthpiece, by adopting her or
his point of view. Instead, the attorney needs to appreciate its
provocation. It means becoming empathetic.
For an attorney, empathy involves carefully listening to
the client, entering a client's world and then expressing an
understanding of that world as the client sees it and lives it. To do
so, what approach works best?
The experts suggest that, when interviewing a client, one should
demonstrate respect and warmth with an open posture and smiling
while asking "what" questions. When listening to a client's story,
the attorney should remain nonjudgmental, while engaging in
active listening.
At the end of the storytelling, counsel then responds, treating
the client with dignity and respect, by first summarizing the client's
main facts and feelings and asking for any necessary clarification.
Then, expectations should be set.
Thereafter, as the representation proceeds, the attorney should
continue to actively listen, respond promptly to inquiries and focus

on solutions, realizing the legal process can be very frustrating to a
client. In my ten years as Bar-Tender, I received many telephone
calls from individuals complaining about their attorneys. I sensed
that the root cause of each complaint was the attorney lacking
empathy.
Of course, that is not how the client expressed it. But, what
else is it, when the client says counsel does not appear to listen;
fails to return phone calls or reply to emails; does not explain what
is happening in the case; seems to be delaying the matter; is short
with the client; or acts as though they would want to be anywhere
else than with the client in the office or the courtroom? With
empathy, there comes patience and sensitivity to the need for
communication and explanation.
Frankly, from my perspective, I detect a trend in the profession
of attorneys becoming less empathetic. Are
business pressures making the legal practice
nothing more than a job, seen as simply providing
a livelihood to the attorney, rather than being
a profession, defined in part as one providing
"objective counsel and service to others"?
Or, is the perceived decreased sense of empathy
due to an increased use of social media by members
of the bar? In 2014, the University of Michigan's
Institute for Social Research conducted a study
of college students. The study found that today's
college students are 40% less empathetic than
students were just 20 years before.
The researchers' conclusion: "The ease of having
'friends' online might make people more likely
to just tune out when they don't feel like responding to others'
problems, a behavior that could carry offline." When an attorney
begins to tune out the client, it can only mean trouble, for the case
and for the attorney-client relationship.
Regardless of the cause, empathy's decline needs to be
remedied by law schools in clinical training, bar associations
providing CLEs, firms taking the time to mentor, and by selfreflection. Empathy is a core skill of lawyering; it deserves the
same attention as the skills for legal analysis and advocacy, written
and oral. It should be the easiest skill to employ, if we but take the
time to listen, understand and appreciate the person's point of view,
by climbing into their skin and taking it for a walk.
When the attorney practices sincere empathy, the attorneyclient relationship becomes a partnership that succeeds, even when
the client fails to succeed in court. And fewer complaints will be
lodged with the bar executive!
My lame joke was so wrong. Atticus is so right.
Mr. Smith is the Executive Director Emeritus of the Berks County
Bar Association.

Spring 2019 | 47

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