By Tim Gunn

Practising law requires a wide skillset but an often overlooked skill is the difficult area of understanding the human side of a client’s needs.

John L. Barkai of the University of Hawaii School of Law states that: “Most lawyers view the practice of law as a set of legal problems that must be solved like a puzzle, rather than as a vocation which assists people who have problems.”

I believe that practising with empathy helps lawyers achieve the best results for their clients.

What does practising with empathy mean?

In a strict sense empathy means understanding and relating to a client’s feelings. I believe practising with empathy requires a lawyer to not only address their client’s legal problems, but also to recognise the emotional impact. Academics in this area remind us that empathy does not equate to sympathy. A client does not want their lawyer to feel sorry for them. Instead, the focus of practising with empathy should be on understanding the client and their problem holistically.

In my opinion the enemy of empathy is insincerity. You cannot feign interest in the client’s wellbeing. Instead, a lawyer must make genuine attempts to understand and factor in their client’s feelings into their decision-making.

I operate a practice where the majority of clients have experienced personal and financial hardship. For example, they have received an adverse health diagnosis that renders them unable to work. They arrive in my office with a letter from their insurance company informing them that they are refusing to pay out on their income protection or trauma policies. These clients have been traumatised by their health issues and then again by an insurance company.

To be effective with these clients requires looking at the problem as a whole and addressing their personal as well as financial needs. I call this the priority of needs.

What should I do to practise with empathy?

While it may be an overused phrase, the key is ‘active listening’. Active listening encompasses listening to the content of the client’s problem and their emotional state.

Meeting a client, whether for the first time or the tenth, is one of the most important interactions for your clients. Busy lawyers can sometimes forget that what might be routine for them is daunting and overwhelming for their client.

A potential plaintiff does not go to a lawyer when they think they have a particular cause of action; they feel they have been damaged, cheated, taken advantage of, wronged or treated unfairly.

For my clients, their disputes are the most important thing in their life at that time. For the lawyer, it is important that the client is never made to feel like just another file but that you genuinely care and will work to get them the best outcome.

Key messages

When meeting with a client here are my key messages:

• Turn off your phone;
• Look at your client;
• Let your client speak;
• Let the client lead and listen – do not constantly interrupt or try to ‘hurry them up’;
• Summarise to the client what you understand; and
• If possible have someone with you in the meeting to take notes.

The simple act of looking at your client and engaging with them will help to alleviate their nerves and allow them to articulate their needs and feelings openly. I believe that an unengaged/disinterested/rushed lawyer is unlikely to build rapport with a client. This could lead to issues later on when the lawyer fails to understand the client’s priority of needs and achieves a sub-optimal result for the client.

When you understand what is at the core of your client’s priority of needs then you can refer to that in all touchpoints you have with your client.

For example, in alternative dispute settings, I always invite the defendant to listen to the impact their decision-making has had on my client’s life. In turn, I find it very healing when a defendant company offers an apology as a way of recognition of this hurt. This can work for both sides as the client becomes more amenable to a resolution if their emotional needs have been met.

Why practise with empathy?

I can’t recall the number of times I have asked myself: why is my client digging in on this small issue? Why is this element so important to them? To solve this I generally return to that initial meeting where I listened and understood the client’s priority of needs.

A lawyer who practises with empathy will implicitly understand that disputes are stressful for all parties involved. Furthermore, clients under stress – such as in a mediation or a courtroom – do not always make good decisions. If a client is displaying irritation and defensive behaviour then they are probably stressed. This inflexibility and hardening of a client’s position will hamper a resolution of the dispute. In this scenario the empathetic lawyer can instinctively adjust their decision-making and approach. They can reflect and remind the client of their priority of needs which will lead to better decision-making.

In my opinion, if you have not invested the time in understanding your client you will be far less likely to achieve an outcome that is satisfactory for them.

A lawyer who is displaying empathy will build a rapport and establish trust with the client. While we may be loathe to admit it, we as lawyers are in the service industry. That service is not merely to file documents, send emails and take long lunches. In my area, the key service is dispute resolution. I sell solutions. I am a paid problem solver. I believe that a client is more likely to spend money with you if they see that you understand them and what is important to them.

However, for me the primary reason I incorporate empathy into my practice is that it gives me immense job satisfaction. I can see the relief and joy that comes from resolving people’s disputes. I find it very rewarding to see that the client is both financially and emotionally ready to move on with their lives.

Tim Gunn tim@timgunn.co.nz is director of Warkworth firm TG Legal Services Ltd.