empathyiseverythingMembers of the legal academy and their students, legal leaders, and others who train and seek to develop lawyers should take note. Empathy plays a critical role in the health and well-being of law students and lawyers and in the experience of clients. The practice of empathic communication acknowledges and honors emotions and feelings in the bond between attorneys and their clients. Since it opens channels for and facilitates attentive and genuine communication, empathy lubricates that professional relationship, too. Research has also shown that empathy has a positive link with professional performance and mental well-being of lawyers and law students. Other related research has shown that empathy predicts mental health and professional outcomes for law students and lawyers.

For decades legal educators knew much about it, but could not quantify this individual difference variable. The topics and concerns involving empathy, emotions and feelings, and lately emotional intelligence, have for years deserved attention. But, those who should show it, have not seemed too interested. But, thanks to some creative researchers, a valuable and reliable and highly useful measure for determining empathy in law students now exists. This new light shines forth a way out of the darkness. A new, objective and more persuasive reason to redirect and alter course and refocus attention now exists. As experienced in sister professions, an improved and more detailed map for the course of this continued journey – the education and training of American law students and lawyers – has materialized. Who will use that better map?

A multi-disciplinary team of Australian researchers, including a law faculty member, synthesized, reviewed, and considered legal commentary and empirical research streams from the psychological science and medical fields, and recently adapted one of the most significant empathy scales and applied their new tool to law students. They examined its psychometric properties, and recently published their results – a valid and reliable tool which assesses how well legal students and practitioners effectively grasp the emotional needs of clients. This post highlights key points from their article, and offers suggestions for the American legal academy and its students and also legal employers and their attorney members.

Who Should Read This Post and Why? A substantial body of literature argues forcefully that lawyers must develop it and show empathetic care of and understanding of their clients. That literature also shows that empathy also has a positive correlation with helping behavior, ethical practice, and contributes positively to the health and well-being of law students and lawyers. According to the authors, empathy “is inherently beneficial to the practice of law”.

For years, medical and other health educators have realized the many important and beneficial roles and functions of empathy. Researchers in those fields have developed empathy scales and related measures, and have successfully integrated empathy training to enhance the well-being and increase the performance of medical and allied health students. Despite the importance of empathy for law student well-being and legal practitioner performance, the authors observed that “the measurement of this construct has not occurred in the law setting to the same extent that it has in some other professions.” Their research study did not address reasons why. But, its results provide a solution.

This post discusses a cutting-edge research study which created an empathy scale for law students and examined its psychometric properties. A valid and reliable four-factor empathy measurement scale emerged. As measurement of the empathy construct had never occurred in the law setting, this research study fills an important gap in the legal student/law practitioner well-being literature.

In addition to describing their “extremely valuable” work and results, including the resulting four-factor framework and related items, this post notes the authors’ working definition of the empathy concept, discusses the leading empathy measurement tool from the medical and healthcare profession, and summarizes the roles and functions of empathy for law students and legal professionals. Drawing on recent findings about the efficacy of empathy training and the malleability of the empathy mindset and its impact on training, the post identifies its four factors and outlines the new empathy scale’s items as suggested legal education learning objectives and outcomes, notes resources for further study, and offers suggestions for beginning efforts in refocusing the training and development of empathy in law students and lawyers.

This post’s intended audience includes legal educators, law students, legal employers, and judges and lawyers. Hopefully, this post will arouse your attention, curiosity, interest, and desire for action. It has no other purpose. Please direct any comments, questions, concerns, or requests for copies of source articles or further information to the author of this post and owner, writer, and publisher of Psycholawlogy – Dan DeFoe, J.D., M.S. at dan@adlitemsolutions.com.

Empathy Defined:  Behavior, Thinking , and Feeling. Many definitions of empathy exist. The authors describe it as a multidimensional concept, and further note that empathy is “generally defined as an ability to acknowledge, understand, and articulate how another person feels, thinks, or acts from that person’s perspective.” Empathy may include compassion. And, simply putting yourself in the shoes of another, without more, does not fit the authors’ definition. Instead, cognitive and emotional domains come into play, too.

The ability to practice empathy involves thinking – “a shift in perspective away from oneself, to an acknowledgment of the other person’s different experience.” Also, it involves feelings and emotions – regulating your own emotions, and sharing “someone else’s emotional state and allow identification between oneself and someone else without confusing the self and the other.”

empathy-mirror-neuronResearch Background: Roles and Functions of Empathy in Lawyers. The researchers cited a number of American law journal commentaries and research studies and reviews from the medical and other (including social-cognitive neuroscience) health fields about empathy. The authors’ review supports the argument that for nearly three decades, legal educators, scholars, and commentators have realized its importance and argued for the incorporation of emotional intelligence and empathy training in the education and training of law students and early career lawyers. The authors conclude that “As empathy is a multidimensional concept, it is inherently beneficial to the practice of law.”

From the authors’ literature review and synthesis, the following summary points show the many important roles and functions of empathy in lawyers:

  • Empathetic communication, which builds rapport and positive interaction between lawyer and client, enhances the lawyer-client relationship;
  • A free flow of information which more deeply describes and discloses both the legal and non-legal aspects of legal disputes and issues better assists lawyers in developing and executing legal strategies and arguments for more effective resolution of client concerns;
  • Clients of lawyers with higher empathetic communication experience an increased level of satisfaction because they benefit from their lawyers’ attentive listening, understanding of legal issues from client perspectives and explanations of the legal process, strategies, and advice using language that the client can understand;
  • Clients prefer lawyers whom they perceive as empathetic;
  • Empathy, a multidimensional concept which involves the thoughts, feelings, and behaviors of the client, enables the lawyer to see the landscape of the legal issue or dispute from multiple perspectives, facilitates the effective resolution of client legal issues, problems, or concerns;
  • Empathy motivates helping behavior and makes lawyers more inclined to uphold professional standards;
  • Empathy contributes positively to lawyer mental health and well-being and equips lawyers to attain greater happiness;
  • Compared with students in other professions, law students tend to have lower empathy levels and those levels remain stable.

Research Background: Health Professionals, Lawyers, and Empathy Assessment. “Medicine and other health professionals have long recognized the importance of empathy among their populations, and as such, has been the focused attention in developing a number of empathetic measurement tools.” Empathic behaviors, as indicated in the wide body of literature noted by the authors, has many positive links with the professional performance and mental well-being of law students and lawyers. While the legal profession may have recognized its importance for the well-being and capacity its students and practitioners, the measurement of empathy has not occurred in the law setting to the same extent as in the medical and health fields. The multi-disciplinary team of Australian researchers sought to fill this void.

The Jefferson Scale of Physician Empathy (JSPE), described by the authors as “the most significant empathy scale to date”, offers a valid and reliable tool to measure empathy in medical professionals. The JSPE consists of 20 items which divide into four (4) factors: view from the patient’s perspective; understanding patient’s experiences, feelings, and cues; emotions in patient care; and thinking like the patient. Researchers have adapted and applied the scale to students of other professions such as nursing, dentistry, and pharmacy. The JSPE as adapated to these cohorts has been retitled the Jefferson Scale of Empathy – Health Provider-Student Version (JSE-HPS). The authors adapted that version to the law context by changing the phrase “health care” to “lawyer”. The phrasing of each item in the new scale for lawyers and law students – JSE-L-S – otherwise stayed the same. The intent of scale remained consistent with the widely used valid and reliable self-reported empathy scale used for health student cohorts.

Research using the JSE-HPS in the medical, dental, pharmacy, and nursing professions has shown that empathy assessment works.  Its valid and reliable results play a valuable role in those professionals’ education, training, and practice and in their well-being. Accordingly, in terms of the legal realm, the researchers argued that “it stands to reason that the same could be achieved and be highly useful”.

What the Researchers Did: Participants, Methods, and Results. Two hundred seventy-five students (nearly 92% had not cared for a person with permanent disability in their family) enrolled in an Australian law school participated in the study. The researchers adapted the four factor 20 item Jefferson Scale of Physician Empathy – Health Provider – Student Version (JSE-HPS). The participants self-reported their response to twenty (20) items which comprised the four factor new empathy scale tested in the reasearch. The total score can range (from 1 to 7 for each item) from a l0w of 20 (each response as 1 – “strongly disagree”) to a high of 140 (each response as 7 – “strongly agree”). According to the test authors and researchers, “Higher scores reflect higher self-reported empathy.”

This part will not discuss the details of the principal component analyses performed by the researchers. The resulting analysis, according to the authors, “yielded a four-factor solution”. The name of each factor, i.e. “big idea”, of the new JSE-L-S empathy assessment, and each factor’s top item, appears below:

  • Factor 1 – “understanding the client’s perspective”, 5 items, top item – “Lawyers should try to think like their clients in order to render better legal advice”;
  • Factor 2 – “responding to clients’ experiences and emotions”, 7 items, top item – “Attentiveness of clients’ personal experiences does not influence legal outcomes” (a reverse scored item, i.e. higher response should be closer to 7, “strongly agree”);
  • Factor 3 – “responding to clients’ cues and behaviors”, 4 items, top item – “Understanding body language is as important as verbal communication in lawyer-client relationships”;
  • Factor 4 – “standing in clients’ shoes”, 2 items, top item – “It is difficult for a lawyer to view things from clients’ perspectives” (reverse scored)

Two items from the JSPE-HS scale did not warrant inclusion in the new JSE-L-S empathy measure. But, according to the authors, “The results from the [analysis] suggest that the 18-item JSE-L-S is a valuable and reliable measure for determining empathy levels of undergraduate law students.” The substance of each of the 18 items included in the final JSE-L-S empathy scale for law students and future lawyers appears in the final part of this post.

mortarLegals’ Empathy Training and Development. Over twenty years ago, the authors of a leading text* about client-centered lawyering in both litigation and transactional contexts observed that “empathy is the real mortar of an attorney-client (indeed any) relationship.” Nothing has changed that wise advice. Beyond any reasonable doubt, law students and lawyers need to learn how to attend to the feelings of their clients. While vital to their work, their vision of professional work informed by educators and other development professionals must stretch well beyond that of lawyers simply acting as rational legal fact-gatherers, decision-makers, and advice-givers. Another important dimension in legal practice exists – feelings and emotions in the person-to-person interactions between lawyers and clients.

A recent meta-analysis** in the counseling psychology literature shows that empathy training works. Also, research*** about mindsets has shown that peoples’ mindsets about empathy can affect when they expend the effort to engage in empathy. Those who believe that empathy can change have a malleable mindset. With this mindset, expending extra effort can increase empathy. New research-based guideposts for legal educators and others involved with lawyer professional development have emerged.

A leading legal think tank, The Institute for the Advancement of the American Legal System [IAALS], recently released a comprehensive report which emerged from a survey of over 50,000 lawyers in all 50 states. The report, Foundations for Practice: The Whole Lawyer and the Character Quotient, clarifies the legal skills, competencies, and characteristics which equip lawyers for the successful practice of law. Law schools and others who train and develop lawyers who include these as learning objectives designed to produce learning outcomes accordingly do well and better in their service of educating, training, and developing American lawyers. To succeed, lawyers must have certain cognitive skills [IQ], emotional intelligence [EQ], and certain character traits and behaviors [CQ]. These legal skills, professional competencies, and personal characteristics comprise what IAALS terms the “whole lawyers”. Clients want and deserve these.

While education for it and the practical application of this notion has lagged, as noted in legal commentary decades ago and currently, good lawyering involves emotional intelligence and empathy. It always has. It always will. The results from a growing body of empirical psychological and neuroscience research and related legal commentary inform this vital, strategic policy for legal education. So informed and well-considered, consumers of the education offered at a majority of American law schools can reasonably question the wisdom and efficacy of their choice to attend law school and endure great personal sacrifice, imperil their mental and physical health and well-being, and dive themselves into six-figure debt if their school’s education does not equip them to practice successfully and provide clients the service needed, desired, and deserved.

Law schools and others involved in growing lawyers should, argues the IAALS, incorporate these into courses, programs, and curricula in order to restore public trust in the system, provide clients with the most competent lawyers possible, and close an ever-expanding employment gap for new lawyers and those progressing in their careers. This road map offered by the IAALS includes a compass point which implicates empathy as the report identifies emotional intelligence and interpersonal intelligence as one of the foundations for practice. According to its report, when law students emerge from their three years of training, they must have these characteristics [tolerance, sensitivity, and compassion] and professional competencies [treat others with courtesy and respect, regulate emotions and demonstrate self-control, among others] on board in the short-term. How many get what they need?

Organizational behavior experts recently commented about the insights from peer-reviewed neuroscience research about a very important individual difference variable – emotional intelligence. This relatively new construct continues to have some growing pains, but they noted that recent studies have established that “emotional intelligence is significantly related to important organizational variables (including leadership) over and above the effect of personality and IQ.” In their discussion, they also noted that “Empathy is a critical component of emotional intelligence.” Neuroscience researchers have shown that empathy has both cognitive and emotional dimensions.  Citing another study, the organizational behavior researchers noted also that “Both types of empathy interact to produce other-oriented feelings and behavior.” Do American law students receive the education, training, and experiential learning about these critical variables of organizational and individual performance needed to provide the highest levels client-centered professional service? Something more than personality and IQ – emotional intelligence – makes the critical difference.

pumpThe Pump Has Been Primed – Legal Education and Emotional Intelligence – Empathy. A few months ago, a leading American legal education think tank published results from a very robust survey about the characteristics, skills, and competencies needed by lawyers to provide the professional service desired by their clients. Among many important points made by the IAALS report, one sticks out here – American law students and lawyers must learn about and develop it, and practice emotional intelligence [empathy] in their dealings with clients and others in their legal work. The responsibility for education, training, and skill development begins in American law schools and continues in the private and public organizations where their graduates begin the practice.

A distinct group of more practice-savvy and practice-oriented American legal commentator-scholars has been making the point about emotional intelligence and empathy education for decades. They have argued and sounded alarms. Very recently, another legal practitioner-scholar’s timely commentary describes American legal education as in a state of “creative destruction”. Through painstaking qualitative research about the state of the real world of legal education refreshingly unique and creative for the field, the article shows that dire situation in the sole portal to the legal profession includes this issue – inadequate information about, insufficient training in, and inadequate opportunities to develop the skills to meet the needs of clients related to emotional intelligence and empathy. That deficit has not been addressed very satisfactorily by our legal educators. The article calls for needed innovation and change. That must occur now.

The professor’s work unveils a glimmer of hope by citing some unique examples and exciting initiatives at some schools. While it also offers some suggestions for positive curricular changes regarding emotional intelligence and empathy in the American legal education curriculum, among many other issues studied, one with serious concerns about the unmet need for innovation and change now can consider all of the well-crafted content in the article, and about that critically important gap between educators’ efforts and students’ needs, and make that legitimate objection persuasively.****

Neuroscience, organizational behavior, and psychological science scholars have developed an ever-growing body of peer-reviewed empirical research which shows the relevance and importance of empathy for the mental health, well-being, and performance of workers via its connection with emotional intelligence. This includes legal workers, too. Also, a recent meta-analysis shows that empathy training works. Other research shows that if lacking one, a person can develop a more malleable mindset to learn about it, practice it, and become better at empathy.

This post has summarized the research background and study performed, and discussed the new 18-item JSE-L-S (Jefferson Scale of Empathy – Law Students) empathy measurement tool (created using Australian law students). Legal educators and development professionals now have “a valuable and reliable measure for determining empathy levels of undergraduate law students.” The authors noted the prospects for further refinement of it as well as the limitations of their initial investigation and validation study and prospects for future refinements in continued research about this new empathy measurement tool. Bottom line:  a scientifically valid and reliable solution to address the apparent empathy measurement deficit in [American] legal education now exists.

The four factors and 18 items of the new JSE-L-S law student empathy measure can inform American legal educators. This new information, borne of empirical, peer-reviewed psychological science research, can and should play a key new role, along with enhanced education and training about emotional intelligence, in devising the realistic and relevant learning objectives and learning outcomes which the ABA requires that American law schools formulate, adopt, publish, and use in their curricula to educate and train lawyers. American law students can not only achieve those outcomes and meet those objective, they will greatly benefit from such enhancement of the legal education experience. The substance of the 18 items of the four factors appears below:

Factor 1 – “understanding the client’s perspective” – Lawyers should try to think like their clients in order to render better legal advice; belief that empathy is an important factor in dealing with and resolving clients’ legal issues; try to stand in their clients’ shoes when providing legal advice to them; in dealing with legal issues, lawyers’ understanding of the emotional status of their clients, as well as that of their families is an important component of the lawyer–client relationship; clients value a lawyer’s understanding of their feelings, which is therapeutic;

Factor 2 – “responding to clients’ experiences and emotions” – Attentiveness of clients’ personal experiences does not influence legal outcomes; belief that emotion has no place in dealing with and resolving of legal issues; legal issues can be resolved only by targeted attention and the significance of lawyers’ emotional ties with their clients having a significant influence on legal outcomes; attention to clients’ emotions and importance in client interviews; asking clients about what is happening in their personal lives and helpfulness in understanding their legal issues; lawyers’ understanding of their clients’ feelings and the feelings of their clients’ families influencing legal outcomes; clients feeling better when their lawyers understand their feelings;

Factor 3 – “responding to clients’ cues and behavior” – Understanding body language is as important as verbal communication in lawyer–client relationships; lawyers should try to understand what is going on in their clients’ minds by paying attention to their nonverbal cues and body language; empathy as a therapeutic skill without which a lawyers’ success is limited; lawyer’s sense of humor contributes to a better legal outcome;

Factor 4 –  “standing in clients’ shoes” – It is difficult for a lawyer to view things from clients’ perspectives; Because people are different, it is difficult to see things from clients’ perspectives

Sage instruction* about the importance of empathy for legal education and the practice of law has existed for decades:

“To be empathic you need to hear, understand and accept a client’s feelings, and to find a way to convey this empathic understanding to your clients. * * * Problems evoke feelings, and feelings in turn shape problems. Lawyers can neither communicate fully with their clients nor help fashion satisfactory solutions in they ignore feelings.”

The pump has been primed. Surely, the well of American legal education is not empty. From it, a strong, roaring river should flow. Many in the legal academy have voiced their concerns and commented that for years students in our law schools have not received the emotional and empathy education and training that they need. Consequently, many clients do not receive the client-centered professional service that they deserve. Concerning these issues, those consumers of American legal education, arguably, remain parched. Who will quench their thirst? When? How? Where?

Assuming little impact upon the status quo in American legal education, the new evidence can support increasing serious concerns by its consumers. For now, they should and many will continue to wonder how and when American law schools will alter course, and redirect and refocus and include more content, training about it, and experiential learning about emotion and feelings and empathy in the education and development of their students? When will that drip…drip…drip trickle from the pump’s sprout end?

Thank You.  Thank you very much. Dan DeFoe JD MS – Adlitem Solutions | Organization Development for Professional Services Firms and the Legal Profession: People. Projects. Practices |Web – www.adlitemsolutions.com | Email: dan@adlitemsolutions.com | Blog – www.psycholawlogy.com | Services – Organization Development Practitioner combining and leveraging 25+ years of diverse legal experience, 7+ years of allied health training and work experience, a Master of Science in Organizational Development Psychology, and educationally qualified or earned certifications in industry-leading normal (Myers-Briggs MBTI) and special business (Hogan Assessments) personality; ability (MSCEIT) and self-report (EQi 2.0 [derived from Bar-On model]) emotional intelligence; leadership (Certified Intentional Leadership Coach); and stress management assessment and tools (ARSENAL best practices system for stress resilient emotional intelligence) to partner with client organizations, their leaders, and member to discover needs and opportunities for growth and to design, develop, deliver, and evaluate custom interventions for individual, team, project, or organizational solutions. | Mission:  “America’s leading resource for normal personality and emotional intelligence assessments, and related coaching, continuing education programs, training, and workshops for judges, lawyers, law schools, bar associations, healthcare, medical, and other professional services providers and their organizations and leaders.”  Please visit Adlitem Solutions and Psycholawlogy again soon. Thank you very much.

Complimentary Assessment: Contact me via email at dan@adlitemsolutions.com to arrange a time for a no obligation discussion and assessment of your firm’s or firm members’ interests or needs regarding emotional intelligence workshops, training, continuing education, or coaching. See this related post at PsycholawlogyEmotional Intelligence Memo to Management: EI as a Buffer of [Lawyer] Stress in the Developmental Job Experience – for more information about taking first steps.

Additional Empathy-Emotional Intelligence Resources. The two leading emotional assessments noted above, the MSCEIT (ability) and EQ-i 2.0 (self-report), both measure empathy. For further information about these assessment tools, please access these posts on Psycholawlogy – Emotional Intelligence, Lawyers, and Empathy–Using The Power of Listening With Care to Build Better Professional Relationships and Satisfy Clients (empathy assessed via the self-report EQ-i 2.0 emotional intelligence assessment); The Importance of Emotional Intelligence as a Factor in the Success and Professional Development of In-House Counsel (empathy assessed via the ability-based MSCEIT emotional intelligence assessment); and Empathy and Perspective-Taking in Competitive Situations: The Benefits of Knowing When to Use Your Heart Versus When to Use Your Head–Making a Case for Becoming an Emotionally Intelligent Lawyer (example of importance of empathy in the practice of law. See also Lawyers & Emotional Intelligence: Empathy tips – containment strategies – workarounds – personal development plan (Slideshare presentation example of a post-EQi 2.0 assessment personal development plan tailored to assessment results on EQi 2.0 Empathy Subscale).

Article Source: Williams, B., Sifris, A., & Lynch, M. (2016). A psychometric appraisal of the Jefferson Scale of Empathy using law students. Psychology Research and Behavior Management, 9, 171–178. http://doi.org/10.2147/PRBM.S108036 (full text currently available at https://www.dovepress.com/articles.php?article_id=28041)

Additional Sources and Resources (most available via Google Scholar): Ashkanasy, N. M., Becker, W. J., & Waldman, D. A. (2014). Neuroscience and organizational behavior: Avoiding both neuro‐euphoria and neuro‐phobia. Journal of Organizational Behavior, 35(7), 909-919 | * Binder, D. A., Bergman, P., & Price, S. C. (1991). Lawyers as counselors: a client centered approach. West Publishing Company | Kelm, Z., Womer, J., Walter, J. K., & Feudtner, C. (2014). Interventions to cultivate physician empathy: a systematic review. BMC Medical Education,14, 219. http://doi.org/10.1186/1472-6920-14-219 | **** Pierson, Pamela Bucy, Economics, EQ, and Finance: the Next Frontier in Legal Education (2016). 65 Journal of Legal Education 864 (2016); U of Alabama Legal Studies Research Paper No. 2833935. Available at SSRN:https://ssrn.com/abstract=2833935 | Rameson, L. T., & Lieberman, M. D. (2009). Empathy: A social cognitive neuroscience approach. Social and Personality Psychology Compass, 3(1), 94-110 | *** Schumann, K., Zaki, J., & Dweck, C. S. (2014). Addressing the empathy deficit: beliefs about the malleability of empathy predict effortful responses when empathy is challenging. Journal of Personality and Social psychology,107(3), 475 | ** Teding van Berkhout, E., & Malouff, J. M. (2016). The efficacy of empathy training: A meta-analysis of randomized controlled trials. Journal of Counseling psychology, 63(1), 32 | Zaki, J., & Cikara, M. (2015). Addressing empathic failures. Current Directions in Psychological Science, 24(6), 471-476.

Other Resources: See Jefferson Scale of Empathy to access information and research studies about one of the most popular and well-researched empathy scales used in medical and allied health education. See also The Institute for the Advancement of the American Legal System [IAALS] and the report, Foundations for Practice: The Whole Lawyer and the Character Quotient at http://iaals.du.edu/foundations/reports/whole-lawyer-and-character-quotient.

Image Credits: Empathy is everything here | Empathy mirror neuron – see http://trauma.blog.yorku.ca/2014/03/i-feel-your-pain-the-neuroscience-of-empathy/ | Mortar – https://commons.wikimedia.org/wiki/File:Mortar_mixed_inside_bucket.jpg | Pump – https://au.pinterest.com/explore/old-water-pumps/ |

Dan DeFoe

Owner and Lead consultant at Adlitem Solutions
I'm an attorney with 20+ years of experience and have an MS degree in organizational development psychology. I provide normal personality and emotional intelligence assessments, assessment interpretation and feedback, and professional development planning and training activities for lawyers, judges, other legal services providers, and their organizations.
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