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Empathy as a Threshold Matter

As part of the coursework for Legal Problem Solving (LPS), all students contribute a post to this course blog. Students develop posts from a weekly journal entry, which also is required coursework. The purpose of journal entries is to invite deeper, personal reflection on the subject matter in LPS, reflection being a key component of content understanding and mastery. This course explores how human centered design and other creative problem solving methods and mindsets inform three areas: (1) the delivery of legal services, (2) how we solve clients' (legal) problems, and (3) how law students can intentionally shape their professional journeys. Each student post will touch on one or more of these three areas.

This LPS post is by Rachel King, Vanderbilt Law School class of 2018.

Early in law school, we are introduced to the notion of threshold issues. Threshold issues are the baseline requirements that a plaintiff’s claim must satisfy in order for the case to proceed or for further action to be sought. Generally, we learn that a plaintiff must establish certain elements like jurisdiction, standing, ripeness and mootness. As I have reflected on the human design thinking tools and concepts I have learned in Legal Problem Solving, I have noticed these tools, too, require a threshold element: empathy.

Sampath Kuman, a Certified Usability Analyst, describes empathy as being at the core of the design thinking process, “enabling you to observe and understand people better while also learning about their needs, wants, motivations, frustrations, pains, and goals.” Having an empathetic mindset allows you to view a situation or a product through the eyes of your client or user. The observations and information that is gained is then assessed and reassessed in the latter phases of design thinking: define, ideate, prototype and testing.

Many of us do this naturally in our everyday lives. But, I feel that in the legal field, which is heralded for its rigidity and objectivity, it can be much harder. I believe it comes down to consciously employing empathy as a starting point or an entryway to analyzing any and all issues and circumstances that one may encounter in providing legal services to a client.

What has been helpful for me in identifying the ways that I can employ an empathetic mindset in the practice of law is to reflect upon those experiences outside of the law where I have intuitively used empathy to find a solution.

In the summer leading up to my first year of law school, I worked for a summer reading program in my hometown. The program was sponsored by the Children’s Defense Fund and was one of the most enlightening, challenging, and altogether, inspiring experiences of my life. Each day I sat in a circle with my students as we read aloud the stories of brave individuals that had overcome adversities and positively contributed to their communities. I facilitated class discussions on themes like volunteerism, self-responsibility, and bullying. We wrote poems and even created vision boards. It was quite amazing what we were able to accomplish as a class.

However, there was one major issue: I had no clue what I was doing.

I was a Political Science and Philosophy major with no teaching background. I could count on one hand the number of times I had baby-sat anyone’s children (and they were all younger cousins). To be honest, when I accepted the job I wasn’t sure whether I could even handle more than 2 kids at any given time.

While I realized I was in over my head, I knew I had to figure something out...and quickly. After two weeks of reading, I could see that some of my students were growing weary. I observed the squirming, restlessness, and a general “I don’t care” attitude. This was expected, it was a summer reading program, after all. I understood that they wanted to relax, enjoy their summer, and have fun.

And I wanted to meet them in the middle. So, we stopped sitting on the standard, hard school-chairs and everyone brought a blanket or sleeping bag from home for our reading circle. This lessened the squirming. Before reading each new book, I identified a buzzword and whenever the word was read, the class would snap their fingers in response. This surprisingly kept everyone active and listening. During our assignments, I lightly played music that they enjoyed in the background. As a result, they were more prone to stay on task.

These were some of the subtle changes that positively altered the students’ classroom experience. Looking back, I now recognize that I had undertaken a form of design thinking (a much less sophisticated one). I think the approach I took most closely resembles the “what-how-why” method of gaining empathy. I believe this method can serve as a key to human-centered design, and as Rochael Adranly describes, can be the “same key that opens the door to human-centered lawyering:”

In “What”- we can note the issue or situation our client is facing. Identify the circumstances that ​has brought the client to us; and pinpoint any other factors that could be contributing to our client’s issue.

In “How” – we can describe how our client is responding to the current situation or circumstances. How are they responding to our proposed solutions?

In “Why” – we can try to interpret what we observed in “What” and “How”. Here, we can take a stab at guessing the emotions/priorities/desires that are driving our client.

I believe understanding the transferability of design-thinking tools like the one above to the practice of law will prove very helpful to me as a young lawyer. I think beginning with empathy offers an inherent recognition that every legal client and issue is different. As a result, there shouldn’t be a one size fits all legal solution. Tom and David Kelley of IDEO, have found that “figuring out what other people actually need is what leads to the most significant innovations.” I encourage us all to employ empathy as a non-negotiable threshold matter before we analyze a new fact-pattern, draft a contract, or argue on behalf of a client. I believe, in doing so, we can better welcome the creative mindsets that lead to human-centered lawyering.

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