Kiser: The Emotionally Attentive Lawyer: Balancing the Rule of Law with the Realities of Human Behavior
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This article explores the tension between the law and emotional intelligence and suggests that emotional intelligence is unjustifiably neglected in legal education and professional development. Part I begins with a brief discussion of the historical conflict between the law and emotions, and then Parts II and III explain why emotional intelligence is central to effective attorney performance and the prevention of legal malpractice claims. To augment our understanding of how emotions affect the actual practice of law, Part IV presents excerpts from attorney interviews reported in How Leading Lawyers Think: Expert Insights into Judgment and Advocacy. The article concludes, in Part V, by highlighting specific changes in medical school education and practice that demonstrate the critical importance of emotional intelligence and indicate that the legal field is woefully late in incorporating communication, observation, and problem-solving skills into law student selection criteria and law school course requirements.
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CONCLUSION
Our inability to reconcile emotions with the legal order has retarded improvements in law school education and the practice of law. In our quest for dispassion, impartiality, and predictability, we have divorced ourselves from the realities of human behavior. Like Ulysses strapping himself to the ship’s mast to avoid the Sirens’ temptations, we have abjured emotions to escape the troublesome tensions between fairness and compassion, equality and individuality, uniformity and discretion, knowledge and wisdom, and objectivity and discernment. Our unease with emotions leads to serious misunderstandings and erroneous predictions about how clients, judges, and juries react to loss, disrespect, neglect, conceit, unfairness, frustration, and deceit.
Effective attorneys understand their personal motivations, biases, convictions, habits, and weaknesses, and they develop integrity, credibility, humility, and maturity by embracing all dimensions of their personalities. They also know that their clients’ positions ultimately will be evaluated by imperfect judges and juries attempting to impose their individual sense of justice under a canopy of law. Recognizing that jurors’ decisions are an admixture of facts, common sense, formal law, and expert witness testimony, effective attorneys skillfully integrate emotions, evidence, and arguments.82 Since they have learned to respect rather than shun emotions, their advocacy more closely tracks jurors’ reasoning processes, and they impress jurors as being both more likeable and more persuasive.
The role of emotion in case evaluation and the importance of emotional commitment in trial representation are synthesized in this email to the author from John V. Hager, one of the attorneys interviewed for How Leading Lawyers Think:
I wanted to add a couple points after thinking about our discussion.
Maintaining a professional distance is important to accurate evaluation, as I
said. But a lawyer really serves two roles: that of an advocate, putting the client’s best case forward to the outside world, and, on the other hand, serving as a neutral (this is the real point for evaluation) advisor about the likely outcome of the case. I am not sure many lawyers appreciate this distinction or realize that they have these two roles that must be separated.
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