The Core of Defense: Empathy Deficits and Legal Advocacy

By Kemarah Thermidor '27

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The concept of empathy (understanding someone else’s perspective) is taught to most people from the beginning of their education through lessons such as, “put yourself in their shoes” or “treat others how you want to be treated.” Numerous studies linking empathy to positive outcomes, especially in the workplace, show the value of examining how empathy plays a role in the legal field as it relates to client-lawyer interactions. (1) In fact, it should be cause for concern to hear about an “empathy crisis” in lawyers. In a study conducted by the National Library of Medicine, law students were noted as yielding lower empathy scores than health students based on the Jefferson Scale of Empathy – Law Students (JSE-L-S), “a reliable measure of empathy among undergraduate law students.” (2) The study does recognize that law students may have differing understandings of what qualifies as empathy, which raises the question of what standards of empathy are required for proper legal representation and if these standards consider how a lack of empathy can impact advocacy strategies. 

While legal defense is often grounded in arguing interpretations of legislations and case precedents, the standards for lawyers require a shared understanding between lawyers and clients. The ABA Model Rules of Professional Conduct explores a lawyer’s responsibilities, with Rule 1.1 stating “a lawyer shall provide competent representation to a client” and Rule 1.3 stating “a lawyer shall act with reasonable diligence and promptness in representing a client.” (3) These standards emphasize the requirement of lawyers to provide competent and diligent representation, which extends to efficient communication to build trust and increase understanding for the client.

This condition is outlined in United States v. Cronic (1984) where the Court of Appeals reversed a case decision based on almost five years of investigation because “it inferred that the respondent’s right to the effective assistance of counsel…had been violated.” (4) In Cronic, Harrison P. Cronic and two other individuals were indicted on charges of mail fraud. Prior to the scheduled trial, Cronic’s counsel withdrew, giving Cronic’s new lawyer (a young attorney familiar with real estate practice and unfamiliar with a jury trial) 25 days to prepare. (5) Predictably, Cronic was convicted and his case was appealed based on five criteria as seen by the court. While the lawyer was not blamed for inefficient counsel, circumstances (time, experience, etc.) hindered the lawyer’s ability to provide competent and diligent representation to a client—legal knowledge alone is not enough for effective advocacy. Cronic acknowledged that legal representation and “meaningful adversarial testing” are both important; a combination that requires a thorough understanding of the case itself and the client. (6) This is reached through “time…experience..[accounting for] the gravity of the charge; the complexity of possible defenses; and the accessibility of witnesses to counsel.” (7)

ABA Model Rules 1.1 and 1.3 define the standards for client-lawyer interactions, while Rule 2.1 explores a lawyer's role as an advisor to their client. More specifically, it asserts a lawyer’s need for independent judgment and “candid advice,” clarifying that “a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.” (8) In order to fulfill this standard, a lawyer must fully understand the client, the client’s situation, and the client’s perspective. 

On May 9, 2008, Robert McCoy was arrested on three counts of murder and appointed a public defender six days later. (9) Throughout his trial, McCoy maintained his innocence and was insistent and clear on his intention to plead not guilty; after first being granted the motion to represent himself (following his conclusion that he was not receiving adequate assistance in proving his innocence), McCoy was appointed new counsel who advised him to take a plea. (10) After the court’s denial to discharge McCoy’s second attorney, his lawyer conceded McCoy’s guilt, arguing for second-degree murder verdicts. (11) McCoy was found guilty of first-degree murder on all counts and recommended the death penalty. (12) In McCoy v. Louisiana (2018), the Court decided the Sixth Amendment’s promise to effective legal representation does not mean “a defendant…surrender[s] control entirely to counsel.” (13) 

Several aspects of McCoy’s case emphasize the importance of lawyers understanding client perspectives and demonstrating empathy for their situation in a way that promotes harmonious decision-making. Both McCoy’s insistence on his innocence and dissatisfaction with incohesive legal representation were disregarded by the court due to his counsel’s own assertion of personal qualification and presumptions of McCoy’s guilt. McCoy’s jump from motion to represent self and subsequent move to discharge his second appointed counsel implies he did not feel properly seen, understood, and represented as a client. 

The Court asserted that respect for a client’s autonomy is part of effective legal defense even if legal counsel and a defendant had conflicting perspectives on how they would be represented as these choices are not based on “how best to achieve a client’s objectives; they are choices about what the client’s objectives in fact are.” (14) This signifies that lawyers have a duty to respect and collaborate with a client’s perspectives, even if it conflicts with previous strategies or the lawyer’s personal objectives.

The previously explored Model Rules are contingent on a lawyer’s ability to demonstrate empathy for their client in the face of difficult or complex cases. Research has also explored client-lawyer relationships, with evidence supporting that displays of empathy by lawyers correlate with higher client satisfaction. In a different qualitative study by the National Library of Medicine, participants (who were involved in traffic accidents) “indicated [empathy] to be very important…explained by the fact that most victims are psychologically vulnerable after the accident.” (15) Effective legal advocacy and counsel requires the integration of empathy along with legal professionalism to capture the core of lawyering.

The acknowledgment of research indicating lower empathy traits in law students, cases that support empathy as essential for proper legal defense, and client satisfaction’s correlation with displays of empathy from lawyers emphasizes the crucial role of empathy in client-lawyer interactions. Karen Mathis, a previous president of the American Bar Association, has described lawyering as “call[ing] upon your compassion as well as your intellect, your heart as well as your head.” (16) Expressing empathy when interacting with clients is not a suggestion, but rather, in direct connection to the ethical standards laid out for lawyers as written in the ABA Model Rules of Professional Conduct. Cases such as McCoy and Cronic illustrate what meaningful legal advocacy requires, with empathy being a common denominator for the achievement of lawyers’ goals within the legal system. 

Endnotes

1. The Power of Empathy in Times of Crisis and Beyond, Catalyst.org (2021), https://www.catalyst.org/insights/2021/empathy-work-strategy-crisis.

2. Brett Williams, Adiva Sifris & Marty Lynch, A psychometric appraisal of the Jefferson Scale of Empathy using law students, Volume 9 Psychology Research and Behavior Management 171 (2016). 

3. American Bar Association, Model Rules of Professional Conduct, Americanbar.org (2024), https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_table_of_contents/.

4. United States v. Cronic, 466 U.S. 648 (1984), Justia Law, https://supreme.justia.com/cases/federal/us/466/648/.

5. Ibid. 

6. Ibid.

7. Ibid. 

8. Rule 2.1: Advisor, www.americanbar.org, https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_2_1_advisor/.

9. McCoy v. Louisiana, Oyez, https://www.oyez.org/cases/2017/16-8255.

10. Ibid. 

11. Ibid.

12. Ibid. 

13. Mccoy Syllabus & Louisiana, SUPREME COURT OF THE UNITED STATES, (2017), https://www.supremecourt.gov/opinions/17pdf/16-8255_i4ek.pdf.

14. Ibid. 

15. Nieke A. Elbers et al., Exploring Lawyer–Client Interaction, 5 Psychological Injury and Law 89 (2012). 

16. Kristin Gerdy, The Heart of Lawyering: Clients, Empathy, and Compassion, https://web.law.duke.edu/sites/default/files/clinics/healthjustice/gerdy_-_the_heart_of_lawyering_clients_empathy_and_compassion.pdf?.