Engaging with Emotions in the Legal Profession
Engaging with Emotions in the Legal Profession
Emotions are central to the human experience, and the legal arena provides fertile ground for the generation of emotion among participants including litigants, witnesses, legal professionals and observers. Legal professionals necessarily experience and manage emotions in many different contexts during their working lives, and yet they are taught to be suspicious of emotions and to value attributes such as reason, logic and rationality above all else.1 In this chapter we explore the impact of the traditional paradigm of a calm and dispassionate law, unwilling to countenance the presence of unruly emotions, on key actors within the legal system. We focus on the impact of the traditional paradigm on shared norms that attempt to govern emotions and emotional expression in the legal workplace.2 We explore the appropriate place for emotions in the practice of law and examine literature about the extent to which a variety of legal professionals engage in emotional labour, with a focus on the impact of emotional suppression and emotional dissonance on the health and wellbeing of lawyers. Attention is also given to the role of legal education in sustaining cultural norms around emotions, and to the emotional labour involved in meeting these norms. Given the ubiquitous nature of emotions and their prevalence within legal practice throughout the world, the chapter will draw on research emanating from a variety of jurisdictions including Australia, Sweden, the United States, and England and Wales, to explore these issues and illuminate our understanding of the challenges facing legal professionals in their professional lives.
There is growing recognition of the important role played by emotions in law and the legal system.3 For instance, emotions have a central role in shaping the content of the criminal law, affecting decisions regarding what behaviour should be prohibited. Disgust, anger and repulsion each influence decisions on what actions should be stigmatised through the criminal process.4 Fear has also played an important, and not always beneficial,5 role in the creation of legislation6—themes which are also identified by McAlinden in her contribution to the current collection.7 Emotion has also been observed to motivate criminal punishment; in the context of retributivist approaches to punishment in particular, emotions such as anger, outrage and sympathy are vital to normative judgements about the appropriate level of punishment.8 Similarly, shame is viewed by some scholars as an integral part of the criminal sanction, with punishment serving at least in part to stigmatise the offender.9 More recently, the role of empathy, remorse and guilt in restorative justice has been highlighted.10 Emotions also play a vital part in the commission of acts that contravene the law and strong emotions surround criminal trials.11 Despite their obvious application in the criminal sphere, the central role of emotion in civil law must also be considered. Most obvious is the provision of compensation for the infliction of emotional distress in tort law. Family law is a challenging area of legal practice where emotions run high; from custody battles to divorce proceedings.12 Indeed it is difficult to imagine a more emotional arena than a family law court. Similarly, medical negligence actions generate strong emotions in both the plaintiff and the defendant. Patients who have suffered harm as a result of a breach of duty by a doctor may feel distressed and angry while the doctors who treated them may experience shame, fear and sadness. While these emotions may have been generated by the initial clinical error, engagement with the legal system further heightens the emotional impact of the experience.13 The rules of evidence are similarly shaped by this understanding of emotions posing a threat to our ability to reason with evidence excluded ‘if it “stirs” or “inflames” the jury’s emotions, or causes the jurors to abandon their mental processes and give expression to their emotions’.14 In the same way, the inclusion of victim impact statements at the sentencing stage in criminal trials has gone some way to acknowledging the emotional experience of victims, something that in the past has often been marginalised during the trial process.15
While the importance of emotions in law and the legal system is gaining recognition, the idea that emotions are irrational and properly excluded from the law ‘is deeply engrained’ within the legal sector.16 It has been suggested that it is a principle of law ‘[t]hat individuals ought at all times to control their actions and to conduct themselves in accordance with rational judgment’17 as emotion ‘undermines rationality and impinges upon moral responsibility’.18 However, it is suggested that the clear distrust of emotions and the persistent assumption that human beings generally lack control over their own emotions are erroneous, and contradict recent empirical evidence.19 Indeed, emotions necessarily contain an element of rationality. We experience emotions based on our own assessment of particular situations, and how they affect us and our emotions are altered as our thoughts and beliefs change.20 Rejecting the idea of emotions and reason as opposing forces, De Sousa states that
[d]espite a common prejudice, reason and emotion are not natural antagonists. On the contrary … when the calculi of reason have become sufficiently sophisticated, they would be powerless in their own terms, except for the contribution of emotion. What remains of the old opposition between reason and emotion is only this: emotions are not reducible to beliefs or wants.21
Moreover, emotions may be viewed not simply as rational, but as vital for rationality.22 This is supported by empirical research which suggests that certain emotions result in more considered judgements than would be made ordinarily,23 which has important implications for the quality of decision-making within a legal profession wherein individuals are expected to be detached and rarely acknowledge their emotions.24 This is not to deny that emotions may be irrational in particular cases25 and we need not accept all emotions as rational. Rather, in Nussbaum’s view, emotions, like beliefs, ‘can be true or false, and (an independent point) justified or unjustified, reasonable or unreasonable’.26 Therefore, despite the fact that emotions may be irrational in some circumstances, such as when an individual feels fear believing a twig on the ground to be a snake or mistakenly believes a negative comment to be directed at him/her, we argue that emotions are not inherently irrational and devoid of reason, as traditionally conceived in legal discourse.27 Indeed, there is a growing body of evidence which suggests that emotions play an important role in moral decision-making;28 as Blumenthal points out, ‘[i]ncreasingly, moral, and … legal, decisions are seen as depending heavily on emotion, as suggested by neurological studies that document the activation of specific emotion-related regions of the brain when individuals engage in moral decision-making’.29 Here, rather than disrupting rational thought and moral judgement, emotions are seen as playing a vital role in these processes.30
Given the available evidence which links emotions and rationality, attempts to remove emotion from the legal system, and to require individuals working within the legal system to work in a manner which is devoid of emotions, must be challenged. This is particularly important in light of the ubiquitous nature of emotions within the legal system and the impact of this approach on the legal professionals such as judges, barristers, solicitors and legal executives.
III.Emotions in the Legal Workplace
While there is some evidence of a more nuanced understanding of emotions in isolated areas of Western legal practice (for example, in therapeutic and restorative justice practices),31 legal professionals are often taught to be suspicious of emotions. In particular, legal professionals, including judges, solicitors and barristers, are expected to be unemotional, rational and detached during their professional lives.32 The value placed on attributes such as logic and rationality reflects a ‘folk knowledge view of emotions as hot, chaotic, unpredictable flashes of feeling that interfere with our ability to think coolly and rationally’ and are therefore to be viewed with suspicion.33
Despite this distrust of emotions, the practice of law forces one to encounter, engage with and experience emotion, irrespective of the jurisdiction in which one practises. Emotions pervade many legal disputes and strong feelings may be invoked in the practice of any area of law—beyond the various criminal law and criminal justice examples highlighted earlier in this chapter.34 The circumstances in which these emotions arise are also varied, such as when lawyers consider emotional information in their assessment of a client, in cases which involve distressing facts, or when hearing testimony. The extent to which one is exposed to emotional stimuli will differ, depending on the type of legal work in which one is engaged. For example, criminal defence lawyers are sometimes required to defend individuals accused of terrible crimes and may be required to impugn the character of victims and/or witnesses in the process.35 They also have to consider the impact of an acquittal, the potential for reoffending and cope with ‘the public perception that they are engaged in a disreputable enterprise that lies somewhere between pathological denial and out and out collaboration with criminality’.36 While tax lawyers, for instance, will be less likely to be emotionally engaged than criminal or family lawyers, all lawyers will be exposed to emotion to some extent. Indeed, even the tax lawyer may have to represent a client or take a case which they have an objection to, or work on causes about which they are passionate.37
Judges and magistrates will also encounter emotions in their daily working lives, though the extent to which they do so depends on a number of variables, including the level and type of court over which they preside. An Australian magistrate noted that ‘when you see this passing parade of misery, day in, day out and folly and stupidity and dishonesty and depravity, you know, it is truly emotionally and psychologically abrasive and wearing’.38 In courts at higher levels, lawyers may protect judges from emotional stimuli to some extent by filtering or managing the raw emotions felt by defendants, clients, victims and witnesses in the courtroom,39 enabling judges to minimise their engagement with emotion and emotional labour.40 Lawyers will use objective legal language, excised of emotion to the greatest extent possible,41 and their presence in the courtroom protects the judiciary from direct contact with lay participants including victims, witnesses and defendants, creating a more emotionally sanitised environment.42 However, while legal professionals insulate members of the judiciary from emotional stimuli to some extent, they are themselves engaging with lay participants and managing both their own and the participant’s emotions. In the pages that follow we consider the norms which currently govern the experience and expression of emotions by legal professionals, before considering the extent to which such norms are beginning to change.
A.Norms Governing the Expression of Emotions
In line with the underlying assumption that emotion exists in opposition to reason, norms for emotional displays (known as ‘display rules’) have evolved within the legal profession, requiring professionals to limit their emotional experiences and expressions on the job.43 Display (or feeling) rules are ‘[r]ules or standards of behavior indicating which emotions are appropriate in given situations and how they should be expressed publicly … [and] guide emotion work’.44 While in some occupations, such as in the service industry, employees receive explicit guidance on expected emotional displays and adherence is supervised by management,45 legal professionals are ‘thought typically to supervise their own emotion work in light of informal professional norms and client expectations’.46
The rules which have developed within the legal professions across different jurisdictions are both implicit and explicit, drawn from ethical guidelines and observation of fellow professionals and professional norms.47 Professional socialisation and training have been identified as key to the communication of dominant sectoral display rules. In the words of one barrister practising in England and Wales, ‘Bar School teaches you little about the law, a fair bit about the process of law and a hell of a lot about what is expected from you; how to show respect, most of the unwritten rules’.48 Similarly, evidence of norms for emotional displays by solicitors is provided ‘through a traditional apprenticeship model’.49 Harris has highlighted the importance of legal culture and tradition at the Bar in England and Wales:
Whilst some organisational, societal and broader environmental issues were found to drive emotional display expectations, the centuries old, archaic traditions of the barristers’ profession appear to exert a strong influence over the work roles of barristers. That is, the traditions and customs of the Bar have become manifested in a series of tangible acculturation rites and rituals as well as ingrained in the macroculture … of the legal sector.50
Display rules have also been established through decided cases and are maintained through ‘the risk of an appeal and denunciatory judicial comment’.51 Linked to this is a fear of adverse media reporting which also perpetuates existing display rules.52
The role of legal education in creating or sustaining emotional display rules, which discourages engagement with emotion, must also be considered. The current paradigm in legal education is said to reflect the dominant view of emotions in law, in so far as the traditional method of ‘classical legal education celebrates reason and devalues emotions’.53 Legal educators in the common law world focus on creating the ideal lawyer; that is, a calm, objective, rational and detached professional. Students are taught to think logically and rationally with no place for emotion: ‘lawyers are taught to think and reason … a way of thinking that values precedent and doctrine above all, exalting consistency over ambiguity, rationality over emotion, and rules over social context and narrative’.54 One study conducted in England and Wales, involving 42 barristers and pupil barristers, nine solicitors and five barristers’ clerks,55 identified the role of legal education in exalting emotion among the profession as follows:
Pupil barristers have to learn not only advocacy and negotiation skills but also about ‘detachment’—[to] ensure that one acts as a rational voice for one’s client. Learning to stay isolated is crucial to one’s success. Involvement merely sullies the mind and excludes calm, professional logic.56
The display rules that have evolved within the legal professions reflect the underlying assumptions about emotion that prevail in that sector:
In the conventional view the very acknowledgement of our work’s emotional aspects—of the pain we cause, the pain we experience, the costs of the dissonance between role and conscience, the empathy or revulsion we may feel toward particular clients and how we ought to deal with it—seems at odds with law’s essence as a rational and rigorous discipline. In short, acknowledging the role of emotion may brand one as not merely weak, but downright unlawyerlike.57
Much of the recent research on emotions in the legal system has focused on the judiciary, and it suggests that they are expected to exclude emotion from their professional lives, due to its perceived irrational nature.58 Thus, Anleu and Mack note that ‘[t]he suppression of emotion and personal feelings is a key attribute of traditional conceptions of the profession’.59 In the same way, Maroney noted that ‘[a] good judge should feel no emotion; if she does, she puts it aside. To call a judge emotional is a stinging insult, signifying a failure in discipline, impartiality and reason’.60 The recent appointment of Justice Sonia Sotomayor to the US Supreme Court provides an interesting example of the public perception of the danger of emotions in judging and the importance placed on reason and rationality within the profession.61 Karl Rove, former White House Deputy Chief of Staff, suggested that Sotomayor was likely to ‘discard the rule of law whenever emotion moves’.62 At her confirmation hearing Justice Sotomayor was forced to address these concerns about her ability to judge without emotion and recognised that judges are ‘not robots [who] listen to evidence and don’t have feelings’;63 however, she emphasised that judges are under an obligation to ‘recognize those feelings and put them aside’.64 This example aptly illustrates two implicit assumptions about emotion in the legal sector: the assumption that emotions are irrational; and the assumption that emotions ought to be suppressed within the legal workplace. This is reflective of the findings of research conducted by Roach Anleu and Mack on the experiences and perceptions of Australian magistrates, where one magistrate described feelings of revulsion and sympathy but noted that ‘you’re not allowed to let that sympathy get in the way of what you do’.65 In the words of Roach Anleu, Bergman Blix and Mack, the ability to be affectively neutral is ‘thought to be essential to performing and communicating the central legal values of neutrality and impartiality’.66
However, members of the judiciary are not alone in their attempt to convey an impression of the legal system as unemotional and impartial. Thus, a recent study conducted by Bergman Blix and Wettergren in Sweden observed the ‘subtle exchange of emotions between court professionals [as] a fundamental element in the joint effort to create an appearance of a rational (unemotional) procedure, constitutive of the judicial emotional regime’.67 Similarly, in a study of the Bar in England and Wales published in 2002, ‘it was consistently argued that the expression of genuine emotion was unprofessional and a sign of a loss of desired detachment’.68 In a more recent study, conducted by the current authors in Ireland in 2014, the question of how emotions are conceptualised within the legal profession was explored, including the extent to which a variety of legal professionals adhered to a folk understanding of emotions as inferior, and even hostile, to reason.69 Using qualitative and quantitative data, the study revealed that barristers and solicitors have a narrow conception of emotion with less content, nuance and complexity in their personal theories about emotion when compared with other professions.70 Barristers have expressly linked the repression of emotion and emotional detachment with rational competence and the ability to represent their clients effectively.71 The obligation to argue for clients in a rational manner, as explicitly highlighted in the relevant code of ethics, is considered to require emotional detachment.72 Similarly, solicitors have identified the need to remain detached: as one solicitor said, ‘you can’t get emotionally involved with your client, to the extent that it will perhaps prejudice the objectivity you need to maintain when advising them’.73
Despite the dominance of these rules, it is clear that as the professions have experienced change both from outside and within, the expectations of the public and of members of the legal profession have shifted to some degree.74 In particular, there is a growing demand from clients for legal professionals to display emotions such as empathy, anger, disgust and sadness, when dealing with their clients or in the courtroom. In the courtroom, lawyers may appeal to the emotions of the jury or engage in an aggressive manner with witnesses.75 Indeed, it is in the courtroom context that we see one of the exceptions to the general requirement of detachment: it is assumed that lawyers will deploy emotional narratives in making their client’s case, since ‘[a]ny trial lawyer worth her salt knows that proving up a case through dry, deductive logic will rarely carry the day’.76 Advocates, as ‘rambo litigators’,77 are expected to display righteous anger or disgust when cross-examining witnesses, but to show empathy for vulnerable clients. Pierce describes these emotional tactics as ‘intimidation’78 and ‘strategic friendliness’.79 It is also normatively acceptable to be aggressive or strategically friendly when dealing with opposing counsel or case owners.80
Interestingly, even when displaying a particular emotion for a specific audience, such as clients or a jury, there is an expectation among fellow legal professionals that such displays are manufactured rather than real and that the individual remains professional and rational at all times.81 In a study of the Bar in England and Wales published in 2002, evidence emerged which suggested that ‘displays of “genuine” emotion were often viewed as “unprofessional”, leading to a range of occupational coping mechanisms to suppress genuine emotional display’.82 However, it has been suggested that expectations may differ between the various branches of the legal profession, with barristers in particular experiencing ‘the need to suppress genuine emotional response in order to retain the “iron self-control” regarded as paramount within the profession’.83 In contrast, solicitors will have direct contact with clients and are expected to engage with clients emotionally,84 making it permissible for solicitors not to suppress all genuine emotions in England and Wales:
Instead, mutual trust and confidence with the client is developed by engaging in deep acting or genuine emotional responses to produce authentic emotional displays of empathy and sympathy. Participants pointed to tension being created by having to produce empathic displays with such intensity, with the concern being of becoming too emotionally attached to the client. However, the solicitors interviewed relieve this tension by using the specialist elements of their profession to focus on the legal aspects of the case, resulting in the production of a form of ‘detached concern’.85
Given the complex and varied nature of legal work, legal professionals cannot avoid emotional stimuli and associated responses,86 and lawyers who encounter emotions regularly in the course of their work will have to deal with them in some way. This brings us on to the important issue of ‘emotional labour’.87 Emotional labour is a concept used to describe the efforts involved in dealing with and managing the feelings of others and regulating one’s own emotions in line with organisationally defined rules and guidelines.88 This field of research owes its origins to the groundbreaking work of Arlie Hochschild which focused on emotional labour in frontline services jobs.89