By Dr. Ken Broda Bahm –
The old Rolling Stones song notwithstanding, it is likely that most Americans have very little sympathy for the devilish war Congress has waged over raising the debt limit. This impasse, like most intractable disagreements, can be seen as a failure of empathy. In this case, a failure of each major party to understand and adopt to the constraints the other party is living under, and a failure of many on all sides to fully grasp the public’s irritation over the world’s largest economy being held hostage until the last minute.
Failed empathy isn’t unique to the political realm. Litigation as well can often drag on or flounder based on a fundamental failure to understand the other side, or to relate to the decision makers. While this post could focus on empathy challenges relating to jurors or to adversaries, I want to write about one area that has recently been contested: empathy as it relates to a judge’s role. Nearly every experienced litigator has felt the judge just isn’t on their side. Rather than wishing for outright favoritism, litigators often just wish that the judgment at least reflected a basic appreciation for your side in litigation.
A recent piece from Georgetown’s Robin L. West provides a compelling case for this empathic role, and carries some important practical implications when it comes to giving empathy to, and getting empathy from, your judge.
Judicial emphathy has played a curious role in past Supreme Court confirmation hearings, including those for Justice Sonia Sotomayor. After President Obama in his nominating speech, lauded Sotomayor for her “sense of compassion” and her “understanding of how the world works and how ordinary people live,” popular attention shifted to her earlier comment that “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Both the President as well as the nominee seemed to embrace the role of empathy.
But the swift reaction from critics was to equate empathy with bias, and in the end, Sotomayor worked hard to distance herself from both the President’s and her own earlier comments. Sotomayor, of course, was confirmed. But the larger question, and the one addressed in the Georgetown Law Research Paper, is whether judges should be so allergic to the concept of empathy in the first place. Focusing on the unconscionability doctrine in contract law, as illustrated in iconic cases including Williams v. Walker-Thomas Furniture Company, Professor West makes an excellent case that the act of judging is, or should be, at heart an exercise in empathy. Rather than engaging in a blind application of law and procedure, or in Chief Justice John Robert’s words, “calling balls and strikes,” judgment has historically included a moral as well as a procedural foundation, and that foundation has only recently come under attack in the confirmation hearings of Justices Roberts, Sotomayor, and Kagan.
Setting aside the legal foundation for empathy in judging, I wanted to share some of the more practical implications of judicial empathy, namely, how lawyers can be better at giving empathy to judges and getting empathy in return.
Giving To Your Judge: Show Sympathy for Your Judge’s “God” and “Devil” Terms
Of course, a clear way to show empathy is to be senstive to your judge’s reading load and to keep your briefs to the point and within the page limit, but that is another post. A less familiar way to build empathy is through language. I’ve previously written about “god and devil terms” as a useful means of developing themes, but they also serve as a good path toward empathy for your adversaries and your judge. In this case, a good approach to showing empathy to your judge involves identifying your judge’s god and devil terms, and framing your own arguments in similar terms. By harnessing what you know of your judge’s preferences, and closely evaluating the terms used in rulings in your case, try to discover the “rhetorical universe” that your judge is operating in. In other words, what is the specific language of praise or condemnation? For many judges, the common terms would include god terms (emblematic of what is good) like “efficiency,” “expedience,” “simplicity,” and “equality.” On the flip side, the devil terms (emblematic of what is evil) would be more like “delay,” “distraction,” “complexity,” and “inequity.”
Based on a close understanding of your own judge and your own case, this list is likely to be more specific and more comprehensive. Litigators are likely to notice these kinds of terms naturally in the process of getting to know how their particular judge ticks, but it can still be quite helpful to go through the formal process of making a list of the terms and values that define good and evil for this judge in the context of this case. Filtering your own arguments through this list gives you not only a good sense of how the judge is going to rule on various motions, but will also help you to frame your arguments using the terms that you know your judge already supports.
Getting From Your Judge: Tell Your Story Empathically
We know that there are basic strategies, like eye contact with the judge, that help to build empathy. But there are also several argumentative strategies that can help you not just convince, but win understanding and appreciation from your audience. In this case, that means not just arguing at your judges, but reasoning with them. In that context, overt sympathy appeals are less likely to work. Pleading, “but your honor…[insert whiney tone] this decision places a terrible hardship on my client…” It is better to simply tell the story in a way that invites the judge to understand your position.
Your honor, if I could briefly relate what has happened up to now. August first of last year, we receive the Plaintiff’s witness list. And we see there is no disability expert on that list. So, based on that, we decide where to spend our resources, and we focus on the mode of injury, not the degree of disability. We base our case on that. Only now, on the eve of trial, we learn their expert has a new opinion that puts a new issue into play. That level of gamesmanship does not serve the interests of a fair or efficient trial.
There are three factors that make that argument more likely to elicit some understanding or empathy from the judge.
One, it is a story. It is not just a strident conclusion or complaint, it is an explanation of what happened, told in the present tense, allowing the judge to experience it from your perspective.
Two, it saves the conclusion for the end, when the judge can actually appreciate it and agree. If the conclusion is front-loaded, then your judge might instead be defensively thinking of counterarguments instead of really attending to your reasons why.
And three, it uses the judge’s own language. If we assume terms like “gamesmanship,” “fairness,” and “efficiency” have been mined from your prior interactions with the judge, then it can only help to frame your appeal in the judge’s terms.
Ultimately, the best way to receive empathy is to make sure you are giving it. I began this post with a Stones reference, so in the spirit of equal time, here is one from the Beatles. To adopt the final line of the final song on the final Beatles album: “in the end, the empathy you take is equal to the empathy you make.” In other words, the basic yin and yang of it is that if you understand your judge, and argue as though you understand your judge, then you are likely to get more understanding from your judge.
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Related Posts:
- Remember, it’s a Sidebar, Not a Bar Fight: Reason With, Not At, Your Adversary and Judge
- Know Your ‘God Terms’ and Your ‘Devil Terms’
- With Eggs and Arguments, Keep the Sunny Side Up, But Cook Both Sides
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West, Robin L. (2011). The Anti-Empathic Turn. Georgetown Public Law Research Paper No. 11-97: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1885079
Photo Credit: Oedipusphinx (Karl-Ludwig Poggemann), Flickr Creative Commons