Although emotions are intertwined with most conflicts and much of what comes to law offices has some sort of emotional content, law schools tend to teach law students about how to deal with clients’ emotions (and their own), similarly to the way many lawyers in practice handle emotions, by avoiding the topic.
While Best Practices acknowledges the importance of emotional content, it is between the lines, not explicit. In Chapter 5A2b(3), there is a section titled “Help students develop interpersonal and professional skills,” but even in that section the focus is on cognitive, not affective skills.
Acknowledging and responding well to emotions is a critical part of building rapport and developing relationships of trust across all helping professions, including law practice. The professional relationships between lawyers and their clients provide the foundation for gathering accurate information and being able to effectively represent clients. We know from surveys of clients that the relationship between lawyers and their clients is more important to clients’ satisfaction than winning cases. If we are not teaching the value of acknowledging emotions are we doing a disservice to our students?
Recent research on the brain and therapy interventions indicates that when people can name the emotions they are feeling, they perceive that they are more in control of these emotions. The process of naming emotions relocates the emotions to the left side of the brain which is more linear and language based than the right side. The right side is thought to be more artistic and associated with depression and some other emotional content. Research has also found that when people are able to help others name their emotions there is a positive influence on the development of the relationships.
It may be important for lawyers and law students who fear out of control emotions to realize that they are in the greatest risk of having emotions flare when they ignore emotional signals. Learning to acknowledge and reflect feelings actually moves them into a more controlled place.
How does this relate to love? Don’t all emotions have some relationship to love, either as variations of positive feelings or through the loss or absence of love? Can we be betrayed except by someone we liked and trusted? Does it matter if we are disrespected if there was no desire for respect? Might not the family that is mired in conflict be as bound to each other in their loss of love as they were in their first blush of love, only in the opposite direction? Learning to acknowledge and appreciate the capacity of humans for experiencing emotions, positive and negative, can be seen as basic to working in a helping profession. I believe law is a helping profession and that law students would benefit from learning to acknowledge and respond to emotions as part of their preparation for law practice
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Best Practices for Legal Education 
This is a very bold and provocative post. And right on point. We are just beginning to scrape the surface of talking about how human behavior and emotions impact professionalism and well-being among lawyers. And finding great resistance. I taught a course on it at Duke this fall and give speeches to lawyer groups often and invariably the response is mixed – as though this subject is taboo. Thanks for the post.
Dan Bowling
Senior Lecturing Fellow
Duke Law
In our law school in general, and our family law program in particular, we have begun integrating emotion-literacy (if you will) into our curriculum. My colleagues Nancy Levit & Doug Linder teach a course on “The Quest for a Satisfying Career” in which student reflection on what makes them happy is an integral part of the course. In my Ethical Issues in Family Representation course, our lesson on competence centers largely on the question of how to recognize and acknowledge our clients’ emotions without begin swamped by those emotions.
I think some faculty are afraid to address the emotional content of the law because they don’t think it is something that can be taught or tested. However, there are several pedagogical tools that can improve our instruction dramatically — the easiest to implement is the personal reflection or journal. Clinical faculty have used this tool for some time, but it can be used in connection with a doctrinal class as well. Many students appreciate the opportunity to explore their own emotional reactions to the law.
Barb Glesner Fines
Ruby M. Hulen Professor of Law
UMKC School of Law
Kansas City Missouri
I agree with Marty that the Best Practices book should have more explicitly encouraged law teachers to teach students how to understand and deal with emotions in law practice.
One of the obstacles to adopting Marty’s proposal, of course, is that most law teachers do not know much about the topic. What little practice experience they had did not usually entail primary responsibility for clients or negotiating with opposing counsel.
If we could get law teachers to take an interest in the topic of emotions in law practice, perhaps they would also take more of an interest in the topic of emotions in the classroom. If so, they might adopt more student-friendly attitudes and techniques such as those recommended in the Best Practices book at pages 110 to 129 and reduce the harmful effects of current practices that are discussed on pages 29-36.
Great post, Marty. Thank you for identifying a piece of practice that is too often ignored or de-emphasized in law school education. Many students erroneously believe that the only kind of law practice that involves emotions is family law, and for some this implies that it is somehow less serious from an intellectual standpoint. Others have pointed out that journaling or other kinds of exercises allow students to explore this aspect of practice help them process how they react to the emotional side of practice. I hope others will share more ideas for all of us to consider implementing in our courses.
I appreciate all the responses to this topic. I do agree that journaling and other attempts to help law students increase their own awareness of emotions is a great step in the direction of reducing the taboo on emotional content.
Dan, glad to know of your initiatives right here in NC! Barbara, I am not surprised that UMKC has creatively addressed this issue in a number of ways. I agree with you, Roy, that the law faculty have been educated to work with cognitive, not affective, material. But, as you said, Lisa, emotions are not limited to one area of practice. And, since you hope others will share ideas, I will jump back in and offer some of the initiatives I have found to be successful when I have taught Interviewing and Counseling.
The last time I taught I&C was the best yet in terms of students actually incorporating the strategies on acknowledging and responding to emotions. I made two changes that I think helped. One was to put together an assessment form for the person who was playing the observer role in role plays to fill out during the performance, use to guide their feedback, and then turn in. On this form, I listed the specific skills I wanted them to be doing and I broke the skills into behavioral components. For example, instead of listing non-verbal attentiveness, I listed each of the behaviors I wanted them to be doing such as making eye contact, facing the client squarely, etc. Similarly, the form included a place to tally and record acknowledgments of feelings, content summaries, open ended questions, etc. Suddenly, students were commenting on their failure to reflect feelings appropriately! They noticed emotions more in the video clips we used and in their ‘lawyer’ when they were playing the parts of clients. I was pleasantly surprised and assume that one change was that they were being evaluated on performing those behaviors and were more aware of that because it was part of the way they were evaluating others. I think by putting the specific behaviors on the form, I was more clearly communicating what I expected.
The other thing I did was to give students actual case files for their three clients with whom they had multiple encounters. For many of my students this was their first introduction to starting and keeping case files. In addition to the obvious benefits of this exercise in simulating practice, students kept their notes on client meetings separate from their reflections on their interviewing and counseling performances. I found that their reflections became more thoughtful and insightful.
By the end of the semester, this class was more comfortable talking about and responding to emotions than any previous class.
Also, I believe that Elon’s leadership program was a factor in the success of this group of students. Our 1L students work with developing self-awareness. Our 2L students learn skills of working with others. So when they came into this course, I was able to draw on and reinforce their previous training and experiences.