May 20, 2021 Articles

Lawyers Suck at Apologies: Empathy Reform in Legal Writing

It is an unfortunate reality of many disputes that an apology can too easily be interpreted as an admission of legal liability or weakness, neither of which is true.

By Mark Lewis
Lawyers suffer from a special propensity to trip over apologies.

Lawyers suffer from a special propensity to trip over apologies.

Pexels | Suzy Hazelwood

During an early courtroom scene in the movie Erin Brockovich, the seemingly demure, sweet-talking Erin undergoes cross-examination. The other driver ran a red light, smashed into her car, and hurt her neck, she says, leaning gingerly toward the jury in her cervical collar. She is winning them over with her forlorn smile. But then Erin falters when counsel attacks her motives by implying that she’s merely gaming the system for money, another greedy plaintiff looking to get rich on a broken thumbnail. At this suggestion, Erin’s gentle mask drops; she loses her composure and shouts profanities across the courtroom at the opposing lawyer and his client. Well before the camera pans to the jury’s grimacing faces, we know that her case is lost.

The film cuts to Erin and her attorney, Ed, as they flounce dejectedly from the courtroom. Erin lays into Ed, castigating him on the way to the elevators for not preparing her better for the cross-examination that sunk the case. Ed sheepishly offers an exasperated and hollow-sounding, “I’m sorry.” To which Erin claps back that law schools must not teach lawyers to apologize because Ed “sucks at apologies!” Ed hangs his head and shrugs his shoulders as the scene ends.

Meaningful Apologies

A meaningful apology entails at least three ingredients. First, we sincerely express our remorse. Second, we admit our fault and the resulting harm we caused. Third, we make it right. These three ingredients—remorse, admission, and reparation—create the conditions for contrition and acceptance, without which neither party is likely to feel satisfied.

From sincere remorse can come understanding and, if we are fortunate, forgiveness. This concept of apology ultimately rests on our empathy, our ability to understand and feel the other person’s emotions. Both sides must empathize with the other. Mutuality is key.

Lawyers: Problems with Apologies

Naturally, we all stumble with apologies. Whether giving or receiving an apology, we often feel angry, offended, indignant. We deny our misstep. We impute bad motives to the other. We might even relish our own resentment, holding onto the hurt too long for all its bittersweet salve.

As much as this is true of human nature generally, it becomes even more pronounced in the fraught arena of legal practice, where emotions run hotter and consequences are direr. As a result, lawyers suffer from a special propensity to trip over the remorse, admission, and reparation needed to successfully land their or their clients’ apologies. Failure to set the conditions for apology is not typically the result of character defects but rather the consequence of some unfortunate side effects of or professional hazards in law practice.

We know those hazards all too well. For starters, we carry the heavy burden of agency responsibility for our clients. That agency responsibility is our ethical calling. It requires attention, care, and diligence. Someone’s well-being rests in our hands. The consequences of our inattention can be devastating to the client. Making matters even more stressful is that we don’t control most of the important variables that determine the outcome in any given case. We have little dominion over the facts, the parties, the court, the law, and the jury in those rare cases that go to trial. This profound agency responsibility combined with little to no control over the outcome makes for potentially unhealthy emotional mixtures. And we can’t ignore the reality that clients often come to lawyers carrying heavy emotional axes to grind against their perceived legal enemies.

Lawyers also struggle with apologies because there are many professional and institutional incentives for detachment, denial, and disrepair in our legal system, especially in the way we write to and about one another. The usual dynamic of legal writing in contested matters is to trade blame in highly formalized legal language that paints the other party as stupid, foolish, or mean. This detached, stylized name-calling ignores the inevitable and often poisonous emotional valence that accompanies such accusations for both sides. We objectify and diminish the other side and vice versa, with both sides reacting defensively. Of course, none of us wants to believe that we or our clients are the bad people depicted in the legal briefs. Yet we are often too quick to attribute depravity to the other side in our own writing. And so goes the verbal blame game, a contest that is now set for its zero-sum conclusion: only we virtuous can win; the wicked other must lose. None of this helps with apologies.

Lawyers: Improvement in Apologies

In light of these troubling dynamics, how then can lawyers become better at apologies?

We can start by acknowledging that apologies don’t come easy in our business and that we’re very often hemmed in by our client’s legal interests, which can remain at odds with any admissions of error. It is an unfortunate reality of many disputes that an apology can too easily be interpreted as an admission of legal liability or weakness, neither of which is true.

To reform our legal writing, we begin with a counterintuitive first principle: lawyers must start acting less lawyerly when they write. We should seek to imagine the most charitable version of the other side’s motives and interests, and then how they would feel when reading our writing. We should tune our ethical imaginations to the likely emotional response of both the lawyer and the client to whom we write. By so doing, we seek a kind of “empathy reform” in our legal writing—the quality of understanding and even sharing the feelings of another. We reflect back to our audience their feelings. Such empathy is the basis for many, if not all, of our moral sensibilities. It is what makes us decent.

Empathy: Strengthening Duty of Advocacy

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 or case. 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 remorse and repair.

Going Forward: Empathy-Infused Writing

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 opposition’s emotions. Let’s be as charitable as possible. Let’s attribute good faith, goodwill, 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 side feels.

We should still advocate, argue, and solve problems in our writing as needed, among the other reasons that we write as lawyers—only now we should do so from the perspective that invites all sides to emotional understanding even while they might disagree. We thereby presuppose the conditions for apology even if one never comes. In the heart of the disagreement or problem to be solved, we frame our legal writing with the implied preconditions for remorse, admission, and repair. We seek to give and receive empathy.

Mark Lewis is a partner at Kitrick, Lewis & Harris Co., L.P.A., in Columbus, Ohio.

Copyright © 2021, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Litigation Section, this committee, or the employer(s) of the author(s).