Prepared remarks: Attorney General Phil Weiser discusses leading with empathy with the Colorado Bar Association (Dec. 11, 2020)
It is an honor to join you today and to offer my perspective on how we in Colorado can elevate the role of the legal profession and the role of lawyers in our society. In my talk today, I will focus on the importance of lawyers as empathetic leaders and why it matters to the future of both our profession and our democratic republic. As I see it, Colorado, and indeed the nation, need empathetic leadership in this moment in our history as much as any time in our history.
In the twenty-first century, both for the practice of law and the role of lawyers as leaders, I believe the most important competency for lawyers is empathy. Let me begin by contrasting empathy with sympathy. Sympathy means you understand that someone is suffering and want to help them. This involves a more distant or abstracted experience with, at best, an intellectual connection. Empathy means you are touched by and feel what another person feels, creating an emotional connection that can build a trusted relationship.
For lawyers, the relationship with clients may involve a purely intellectual connection or it may also involve an emotional one. The ability to create an emotional connection—fueled by empathy and authentic listening—is powerful. This draws on a great lesson that master teachers know well—“no one cares how much you know until they know how much you care.” And if people don’t believe you care about them, few other values may matter to a client—including an attorney’s intellect or mastery of the law.
The best lawyers are those who earn the confidence of their clients, demonstrating genuine concern for them and demonstrating how they care about solving their problems. This could include a small business struggling during the pandemic, a criminal defendant facing a life-altering situation, or a major corporation facing challenging litigation. Great lawyers also develop empathy for our colleagues, lawyers and legal professionals alike, many of whom are suffering during this pandemic.
One important role of empathy is for opposing counsel because the bar—at its best—fosters a level of professionalism that allows for collaborative problem solving and collegiality between lawyers. To be sure, it can be very challenging when lawyers are expected to be forceful advocates for their clients in litigation or in transactions. But by being empathetic to the other side, we can open up more creative solutions to legal problems that we wouldn’t have seen if we only see things from our own client’s perspective. Fortunately, in Colorado, we operate in a small legal community where there is a good chance you will come up against opposing counsel again, you are somehow connected to your opposing counsel, or you just know that there is a significant risk that any bad behavior will come back to bite you. Unfortunately, law schools—and I say this as a former law school dean and the leader of the largest law firm in Colorado—rarely seek to develop emotional intelligence, including empathy, meaning that law schools are generally undervaluing this critical competency.
To transform legal education and re-imagine the training of lawyers, developing empathy should be placed front and center. Traditional law school classes generally present abstract fact patterns and elevate the importance of issue spotting, removing students from the individual factual context and the need to relate to individuals as people. In so doing, such courses—which focus on traditional IQ—overlook both emotional intelligence and what the Institute for the Advancement of the American Legal System (or “IAALS”) calls the character quotient, which captures “traits such as integrity, work ethic, and resilience.” Both emotional intelligence and the character quotient, IAALS explains, can be “learned through innovative teaching methods and actual experience.” We as a profession can do better on that score.
For our society, a critical challenge we are facing is our collective pull to judgment of others as opposed to empathy for others. Consider, for example, your first reaction when you hear about an individual who voted differently than you in the last presidential election. Was your reaction rooted in empathy and authentic curiosity—such as, what led you to vote the way you did?—or was it rooted in judgment—such as, you must be foolish to vote that way. To be sure, relationships with clients can be rooted in judgment, too; clients, however, generally don’t stick with lawyers who think of them as fools. Given our profession’s presence in leadership roles, we can work to be at the vanguard of leading with empathy and authentic curiosity.
The rise of judgment towards others in our society is undermining our ability to function as a democratic republic. Consider, for example, that Pew Research found in 2014 that “38% of Democrats and 43% of Republicans now view the opposite party in strongly negative terms.” And things have gotten worse since then. In short, a range of forces in our society—abetted, to be sure, by social media and other forces—is fueling the demonization of the other, including members of a different political party.
In a world where leadership is rooted in authentic listening, empathy, and civility, creative problem-solving can take place, often through principled compromise. Consider, for example, that Justice Ginsburg welcomed dialogue with Justice Scalia, listening to, learning from, and reacting to his perspectives. As Jonathan Rauch explained in an important essay, Rethinking Polarization, “the essence of the U.S. Constitution is to require compromise as a condition of governing. In rejecting compromise, Americans are rejecting governance.”
The opposite of empathy may well be contempt. (There is also a good argument for indifference.) Rather than seek to understand someone, we can hold that person in a deeply negative judgment. In an important book, Love Your Enemies, Arthur Brooks answers that today’s rising polarization, demonization, and divisive rhetoric can be addressed by two teachings from the Dalai Lama. First, he encourages people to wait before reacting—in other words, to withhold their natural and initial judgments. And, second, he calls on people to replace contempt with loving kindness. In his book, Brooks explains that marriages—like communities—are not undermined by disagreements, but rather are destroyed by contempt, which fuels the situation when two people cannot even listen to one another.
There is much that each of us as lawyers and leaders can do to elevate the state of our politics. We can practice kindness, empathy, and active listening. When with others with whom we don’t agree, rather than try to convince them that they are wrong, we can instead ask questions like “what leads you to see the issue that way?” If you do so, you may be surprised by the answers you receive. When I gave a talk at CSU last year, for example, I had the opportunity to visit with someone who stated his robust support for the Second Amendment and challenged my support for Colorado’s red flag law, which provides a mechanism for removing a firearm from someone who poses a significant risk to himself or herself or others. In response to his criticism of my position, I asked him a question: “what leads you to be more concerned about removing a gun from a lawful owner than from someone who would take his own life?” His answer, with a spirit of contemplation: “I need to think about it.”
As a candidate and as Attorney General, I have benefitted from numerous conversations about what matters to people in towns, cities, or counties across our state, and those conversations have informed and guided my priorities as the People’s Lawyer. Let me share two powerful ones. During a trip to Alamosa, for example, I joined a group of community leaders to discuss the future of the San Luis Valley. Not long into the discussion, someone remarked “before we can even think about our economic future, we must address the opioid epidemic which is devastating our community and filling our jails.” That conversation fueled a commitment to address this epidemic—making it a top priority for our office and driving our litigation against irresponsible drug companies who contributed to this crisis.
In conversations in Northwestern Colorado, we learned about how the shift in energy sources to power our homes and businesses is creating economic uncertainty for some communities and raising the importance of supporting those towns and cities so they aren’t left behind economically. Those conversations have fueled our commitment to work with Northwestern Colorado Community College, building a cybersecurity program there. Similarly, our authentic relationships in that community have fueled our commitment to ensure that this part of our state has access to broadband, which we have advanced through a number of different actions, including our settlement in the Sprint/TMobile merger.
There are many meaningful conversations happening around our state and our country. And as we consider what it takes for our democratic republic to survive and thrive, I believe that we need many more. For those who had the opportunity to watch the recent movie about Fred Rogers, you have a sense of the spirit of empathy we can all aspire for and what such conversations can look like. As explained by Tom Junod, the journalist portrayed in the movie, Fred Rogers had a vision for our politics:
Fred was a man with a vision, and his vision was of the public square, a place full of strangers, transformed by love and kindness into something like a neighborhood. That vision depended on civility, on strangers feeling welcome in the public square, and so civility couldn’t be debatable. It couldn’t be subject to politics but rather had to be the very basis of politics, along with everything else worthwhile.
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Our profession is built on the premise that there will be disagreements and we can find constructive resolutions for them. And that’s why I believe that if we as lawyers lead with empathy, rather than judgment, we can build relationships premised on good will and trust in the good faith of others, even during disagreements. As Lincoln put it in his First Inaugural Address, “We must not be enemies. Though passion may have strained, it must not break our bonds of affection.” Summoning this spirit, ABA President Judy Martinez earlier this year called for a year of civility, explaining that it “requires, respect, restraint, courtesy and empathy.”
There are, I recognize, powerful forces in our society that undermine trust and brew contempt for others. As a result, an essential challenge for our democratic republic is whether we can commit to certain foundational norms—including the pursuit of justice and the rule of law—to rebuild our basic systems of governance and to realize the ideals articulated by the founders, but never yet reached. As we work to meet those challenges, lawyers are positioned to play an essential role, both in our professional work and as leaders in our public dialogue. Thank you all for doing your part in that important work.