|Oregon State Bar Bulletin JUNE 2010|
I started teaching Professionalism three years ago because I believed that there was a place for feelings and emotions in the law. As lawyers we have been taught to distrust and even suppress our emotions in favor of dispassionate, objective, analytical thinking. Analytic skills are taught almost exclusively in law school, as shown by the 2007 Carnegie report on legal education and outlined in The New York Times on Oct.31, 2007. The report found that the dominant model in law schools was the development of “thinking like a lawyer.” However, the report also highlighted the need to teach ethical, interpersonal and other skills that could help law students practice law. Ethical behavior, relationships and practical skills are the areas covered by professionalism, and it is in these areas that feelings and emotions prove most helpful.
Thinking comes from the left side of the brain, while feelings, perceptions and emotions belong to the right. The right side is relational, artistic and creative. Law professor and novelist Thane Rosenbaum makes a case for the right brain in his book, The Myth of Moral Justice: Why Our Legal System Fails to Do What’s Right (HarperCollins, 2004). He believes our legal system fails to do what’s right because it excludes feelings and emotions. This is a problem because the public expects the legal system to provide moral solutions that are legally correct and feel right emotionally. Clients become dissatisfied when there is no way to address the underlying emotions in a dispute — what Rosenbaum calls the “backstory” — and there is no opportunity for resolution through acknowledgment, apology and forgiveness.
The need for right-brain skills became apparent to me when I was a judge. I was well trained in the law, but nothing had prepared me to judge the credibility of a witness. That took very different skills, and there were times when my perceptions and feelings were my best guide. There were also times when I needed to address the emotional as well as the legal issues before me.
I walked into my courtroom one day to find it filled with the angry residents of a neighborhood that had been terrorized by two pit bulls. The dogs had gotten loose and killed a family cat as well as several neighbors’ chickens. Rather than holding a limited legal proceeding to declare the dogs vicious and turn them over to Animal Control, I addressed the entire group and gave everyone the opportunity to speak, allowing the owner of the dogs to express his distress and apologize. I framed a judgment that reduced his fine by the amount he compensated his neighbors for their losses. By the time the hearing was over, the atmosphere in the courtroom had changed dramatically.
Law schools have begun to value and teach more right-brain skills. After the Carnegie report was published, many law schools began to re-evaluate their course offerings and focus more on practical skills, professionalism and clinical programs. Especially in hard economic times, law firms and other employers have come to value law students who are already trained in the ethical, practical and interpersonal skills required to practice law.
One way to teach right-brain skills is to look at other justice systems. When I was invited to teach at the National Institute for Teaching Ethics and Professionalism, I used the model of the Navajo Peacemaker Court, a very traditional right-brain model of justice, which moves participants from “head thinking” to “heart thinking” in order to resolve conflicts and restore harmony. Participants sit in a circle, everyone is equal, and anyone may speak. The solution to the problem comes from within the group rather than being imposed by a higher authority. The goal is not punishment but healing, and apology and forgiveness play an important role. This traditional approach has proven so effective that many of the concepts have been adopted in Alternative Dispute Resolution (ADR). Nineteen states — including Oregon — have enacted apology laws, which permit doctors to apologize to patients without incurring liability. People are less likely to sue doctors who are concerned and caring and acknowledge their problems.
Right-brain skills are being taught in medical schools. The University of New Mexico Medical School offered a course in art appreciation to medical students in the fall semester of 2009. As described in an article by David Steinberg, “Art Helping Open Eyes of Medical Students” (Sunday Journal Arts Section, Jan. 3, 2010), the purpose of the course was to apply the observational techniques used in art study to medical diagnoses, applying observation, open-ended questions and active listening skills. Steinberg reported that in the past 20 years, medical schools have begun reintroducing humanities courses, including art classes, because they help medical students develop empathy and communication skills.
The Trial Lawyers College teaches right-brain skills to lawyers and judges. Conducted by Gerry Spence, one of the most successful plaintiff and criminal defense attorneys in the country, the Trial Lawyers College teaches participants how to deal with emotions. Spence employs role playing techniques as well as psychodrama, a form of group therapy in which participants recreate scenes from their lives. He believes that most lawyers are unable to convey their clients’ stories effectively because they are being too cerebral. He advises telling the client’s story from the heart. By helping lawyers deal with their own issues, Spence teaches them to empathize with their clients and represent them more effectively.
For specific guidance on when and how to access the right brain, the work of Harvard brain research scientist Jill Bolte Taylor is instructive. In her bestselling memoir, My Stroke of Insight (Viking, 2008), Dr. Taylor describes the stroke she suffered in 1996 that shut down the left hemisphere of her brain. In a matter of hours, she lost her ability to think logically, understand language and speak. Her right brain was unaffected, and without interference from her thinking mind, her feelings and senses were heightened and she was in a state of bliss. She eventually returned to work, and after eight years of therapy she fully regained all her left brain functions, but she never lost her ability to access her right brain. In her words, she chose to “step to the right” when her work became stressful and she wanted to return to a state of peace and well being where she was more joyful and cooperative and people liked her better. In an AARP Magazine interview, “Stroke of Luck” (November December 2008), she explained how to access right brain awareness: stop what you’re doing and pay attention to the richness of the present moment. Use your senses to notice the colors, shapes and sounds in your environment. It’s also helpful to awaken the body by jiggling the head and shoulders for three minutes.
In the practice of law, those who excel in left-brain “intellectual intelligence” and right-brain “emotional intelligence” are the most gifted among us, according to Amiram Elwork, Ph.D., director of the Law-Psychology Graduate Training Program at Widener University and author of Stress Management for Lawyers: How to Increase Personal & Professional Satisfaction in the Law (Vorkell Group, 1995). Those who can think like a lawyer and deal with emotions are better able to provide excellent client service in an ethical and professional manner, enjoy meaningful personal and professional relationships and be happy. Dr. Elwork believes that when you add qualities like good will and friendliness, a generally positive view of people, treating others with kindness and respect and acting with integrity, you have a true measure of success.
In the headline to this article the word right has a dual meaning. There is the moral sense of right as used by Thane Rosenbaum in The Myth of Moral Justice: Why Our Legal System Fails to Do What’s Right. Then there is the right brain, with its feeling and emotion, and all its relational, artistic, creative and spiritual qualities. The two meanings are related. By incorporating more of the right brain’s emotional intelligence and heart into our rational left-brain system of law, we can supply the moral and emotional components that have been missing. We can become more professional. We can become happier and more successful. We can do what’s right.
ABOUT THE AUTHOR
Lauren Marble is a graduate of U.C. Berkeley and the UNM School of Law. She practiced law as a legal aid attorney, Albuquerque City Council attorney, Albuquerque assistant city attorney, New Mexico Municipal League attorney and Santa Fe city attorney. In 2004 she retired as village judge for Los Ranchos and began researching and teaching a CLE course entitled “Professionalism: The Secret to a Successful Practice.” She has presented the course at the National Institute for Teaching Ethics and Professionalism in Atlanta, Ga.
© 2010 Lauren E. Marble