Ross Essay Contest

Clients as Teachers

Empathy Plus Experience Doesn’t Always Equal Understanding

Posted Aug 29, 2005 1:41 AM CDT
By Barbara Glesner Fines

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When your client comes from an entirely different world, it is easy to remember that you might not understand what they want and need. No matter how vigilant you are in monitoring for personal bias, sometimes a client reminds you that you just don’t understand.

My most valuable lesson came when working with a group of attorneys on clemency petitions. The group had formed to review the cases of women who had been incarcerated for the murder of their batterers at a time before evidence of battered spouse syndrome was admissible.

One of the key elements in our consideration was creating a powerful package of petitions that would persuade the governor to grant clemency. Who should be included in this package was the topic of discussion.

Invaluable Assistance

Assisting us in our deliberations was a secretary who had been incarcerated and released. “Kay” quietly listened and took notes during much of our discussion, speaking only to answer questions about prison procedures or personnel.

The discussion turned to the consideration of individual petitions. Some petitions were stronger than others, but some presented more sympathetic petitioners than others. Where should we draw the line?

I suggested that we include only those petitions that presented a strong possibility of success. I thought it would simply be one more cruel blow to put forward the names of women with less than optimal petitions and have them denied any relief once again. It seemed to me that this would simply replay the entire trauma of their original conviction.

I thought I was exercising empathy and compassion to inform my independent professional judgment. I summarized all these thoughts by interjecting: “But we don’t want to give these women any false hopes.”

At my comment, Kay fled the room in tears. I went after her, hoping to offer an apology or comfort, as the situation demanded.

When I walked up to her in the hallway, she blurted out through her tears, “You just don’t understand. Hope is all they have. You live every day holding onto hope.

“If one hope is dashed, you find another. That’s how you survive. If you don’t have hope, you don’t survive.”

Going into that meeting, though I had worked with plenty of prisoners in the past, I was fully aware that I had no idea what prison life was like.

Though a primary focus of my scholarship and teaching as a law professor was on the topic of domestic violence, I knew full well that I really couldn’t fully appreciate the circumstances these women had lived through. I knew what I didn’t know. But that didn’t stop me from assuming.

Kay’s admonition--“You just don’t understand”--rings in my ears to this day, reminding me that my first job as a counselor and advocate is to listen to the client: the true experts in everything except the law.

Sidebar

This essay was selected by the ABA Journal Board of Editors after a lengthy judging process as the winner of the 2005 Ross Essay Contest. The winner receives an award of $7,500. This year’s contest drew 401 entries submitted by ABA members who subscribe to the Journal’s eReport, delivered weekly by e-mail.

The Ross Essay Contest is supported by a trust established more than 70 years ago by the late Judge Erskine M. Ross of Los Angeles. The prize was first awarded in 1934. The contest is administered by the ABA Journal.

Barbara Glesner Fines is the Ruby H. Hulen Professor of Law at the University of Missouri Kansas City School of Law.

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