If we study the L & O Fact pattern closely, we’ll see that it is all about a dichotomy. The dichotomy is about the difference between what is needed in order to solve a problem, and what is claimed by those who wish to solve a problem. In order to solve a problem we must engage in reasoning, analysis, etc. The problem itself is not a problem in and of itself (because there is nothing at stake), but rather the actions or the claims that result from those solutions.
For instance, in the Adam example, the defendant commits a crime, but the crime is not committed with complete justice. There may be social consequences for the defendant (such as losing his or her job) and for the victim (such as a reduced potential for getting a job, or living in a poverty rate housing area). However, the victim never claims to have been treated unfairly due to the defendant’s crime. The prosecutor then presents a prosecuting argument based on the victims’ equal standing, along with what they would gain in a settlement if they win the case. The defendant then makes a point of rebutting the prosecutor’s argument, and the case is decided.
In this example the parties are not truly negotiating; they are participating in a process whereby they both gain some sort of benefit from the outcome. This is true even in cases where there is no direct benefit to either party. But in a complex criminal law case, where the stakes are high and the potential for significant personal losses are great, the parties need to recognize that they may be forced to take sides in this debate based on their relative social standing. In this way, they may be required to choose between justice and mercy, and between life and death. In a very real sense, choosing between these two is a hard sometimes.
To understand this further, consider the different ways that people might actually embrace either utilitarian or egalitarian values. The difference between the two is clear: utilitarian values are those that are focused on maximizing overall happiness and therefore, interpersonal satisfaction. Egalitarian values, on the other hand, focus on the individual’s wellbeing-being their own best, most ideal world. People who take such utilitarian or egalitarian values, are also clearly willing to sacrifice their own well being in order to maximize the happiness and well being of others. And they do so without regard to others suffering.
Now consider what empathy can mean. The word “empathy” literally means “common-sense empathy.” It is a willingness to put oneself in the shoes of another in order to understand how they might feel. So, when we are asked to apply the theory of the “rule of empathy in the law” in this one example, it would be clear to assume that the answer is yes. That said, it also requires us to recognize that while empathy can serve us well in everyday life; empathy as a concept/omena tends to get lost in the cracks and crevices of law. This is one of the reasons why many students fail the bar exam.
The last fact pattern I’d like to discuss is one that many lawyers tend to ignore; the Roberts and Wassendorff’s famous analogy of the blind lawyer and the deaf lawyer. The blind lawyer or the deaf lawyer is usually compared to an interpreter or a referee, who is being called upon by one side to act as an interpreter for the other side. The blind lawyer has no idea which way his arguments are actually leading, while the deaf lawyer clearly has an understanding of where he is heading. The analogy has a stark contrast when applied to the legal process: when deciding whether or not to file a lawsuit, the professional bar exam is no different than the professional baseball game: you have a pretty clear vision of your end result, while everybody else is playing with their gut.
The reality is that many students are not prepared to navigate these types of complex legal landscapes. This is not an academic issue; it is a social and personal issue. Students who are not well-versed in the ins and outs of empathy will likely suffer from serious mental health problems. Indeed, one of the most tragic and troubling things that I heard during my time as an ethical writer was how some students would sit in the class room and brood about the prospect of being called upon to render a legal opinion on a difficult case, only to then be completely oblivious to how their potential arguments could actually impact the rest of the case. Law, like life, is hard sometimes. But if a student is not well-equipped with relevant Empathy skills, they will likely pay the price in terms of future success.