by Aditi Juneja, Columnist
We teach law students and young lawyers to zealously advocate for their clients. Lawyers are taught to think through arguments and counterarguments, but are rarely taught to consider the morality of their advocacy. We defer to the adversarial process, which is supposed to yield fair and just results. What is our responsibility when it does not? What happens to lawyers when our only goal is winning?
There is, of course, nothing inherently wrong with zealous advocacy. The problem with valuing success above all else is that fear of being shamed if we fail can lead to desperation to win at any and all costs.
Brene Brown, a shame researcher, distinguishes shame from guilt by identifying shame as the feeling that, “I am bad and therefore unworthy of connection.” Alternatively, guilt is simply, “I did something bad.” It is the difference between “I am stupid and shouldn’t be in law school,” and “I didn’t know an answer to a question when I was called on.”
I believe that legal education, and the Socratic Method, seeks to motivate students through shame. Interestingly, we are taught to feel shame when we fail, but not for the consequences of our zealous advocacy.
Lawyers place a high value on walling off emotions. Susan A. Bandes wrote an op-ed arguing that the culture of lawyering falsely equates the ability to numb feelings with toughness, and toughness with competence. The problem, according to Brene Brown, is that we cannot selectively numb emotion. When we numb pain, discomfort and frustration, we also numb joy, engagement, and connectedness.
Bandes believes that the imperative to numb feelings is why more than a third of lawyers are problem drinkers and over a quarter are clinically depressed. She notes that, “medical students and doctors have far lower rates of alcoholism and depression, although they, too, engage in high-pressure, expensive schooling and stressful work.” Furthermore, the percentage of alcoholic and depressed lawyers was nearly identical a quarter-century ago, making it unlikely that the high rates are due to recent changes in employment prospects.
According to Brown, another way numb people is through blame—and lawyers are in the business of blame. Whether through accountability in criminal proceedings or liability in civil ones, we spend our lives immersed in a profession preoccupied with assigning fault and blame. Brown describes blame as the discharge of discomfort and shame. So, the real question is, do we want our nation’s lawyers to be motivated by shame?
Brown believes that we cannot practice compassion toward others without first practicing it toward ourselves. Do we want the rule-makers of society to feel shame when they do not know something or are wrong? If we are not compassionate towards ourselves, will we practice understanding when others make mistakes? Will we create compassionate systems of justice? We teach law students to be right and to win. Should not we also teach them how to be wrong and to lose gracefully? Why don’t we teach empathy in law schools?