The Language of Compassion: A Few Lessons from Michigan Lawyers on How to Communicate Compassionately with Personal Injury Clients

Though judges and lawyers encourage claimants to settle disputes out of courts, lawyers may struggle managing out-of-court dispute resolution processes. Some of the dispute management struggles are related to emotions of clients. One of the reasons why it may be difficult to manage a client’s emotions is because out-of-court disputes require a different communication skillset from lawyers. The following note features some advice for law students on how to incorporate compassionate communication methods in personal injury disputes. Personal injury disputes may be emotionally challenging for clients. Such challenges may manifest in communication issues and prolonged suffering of clients. Yet, both students and academics may dismiss the importance of soft-skill development in due course of legal education. As lawyer-socialization institutions, law schools have a duty to foster skills that are necessary to successfully assist clients in emotionally challenging disputes. This contribution discusses the notion of human suffering and compassion-based counselling scholarship in relation to personal injury disputes. The paper advocates for normalizing emotions in personal injury disputes, and through testimonials of Michigan lawyers, presents real life examples of how lawyers can communicate compassionately with their clients. Law students can benefit from learning about real-life examples of communication patterns between lawyers and clients to have better conversations with their clients.


Introduction
Clinical legal education recognizes the benefits of training emotionally intelligent and empathetic counsellors [21, p. 4]. In fact, empathy, and appreciation for various gifts that each lawyer brings to the table can change the legal profession for the better [5, p. 30]. Legal scholarship also recognizes and advocates for more emotional intelligence-based training to be incorporated in law school curriculums [3]. Emotional-intelligence training may benefit lawyers who perceive emotions and cognition being in tension with each other; they associate emotions with lack of control and treat them not as social facts, but assess them from normative angles [20].
An emotionally intelligent lawyer understands their own emotions but is also able to understand the emotions of their clients. For instance, Buhler argues that emotionally intelligent lawyers can use emotional skills to better assist clients in achieving their goals and to better reduce interpersonal conflicts between clients [6, p. 409]. Thus, it seems that lawyers who incorporate more emotional awareness into their practices can be more successful [14]. While incorporating more emotional awareness may be a net positive to a lawyer's practice, the absence or repression of a more compassionate approach can also impair decision making processes of lawyers [11, p. 1637].
In the case of a client who is entangled in a legal dispute, the first major decision the client is confronted with is the selection of the lawyer. Studies on client expectations demonstrate that clients want their lawyers to treat them with kindness and empathy, making the first interaction with the lawyer vital in establishing a good-working relationship [9,32] lawyers who demonstrate such traits may have a higher chance receiving positive feedback from clients. Thus, the apparent pedagogical challenge is for lawyers to learn how to focus on perfecting interpersonal skills while normalizing emotions in a dispute, rather than compartmentalizing them in a normative fashion. Teaching law students how to manage emotions and have difficult conversations requires emotional competency, the lack of which may be counterproductive to a client's interests [33, p. 5].
Neuroscience offers evidence that humans learn compassion through the process of socialization [16]. Historically, the professional socialization movement in the legal profession advocated for a greater commitment to a more ethically focused socialization of future jurists [1,31]. The modus-operandi of law schools, as well as the adversarial nature of the legal profession, can result in compassion fatigue. An insidious and debilitating condition, compassion fatigue can leave lawyers burnt out [25, p. 988]. Burnout may be a consequence of compassion fatigue as well as stress. Proactive stress management can include debriefing sessions with other lawyers who can help understand feelings which are involved in a particular dispute, time-management techniques which include implementing time-blocking as well as abandoning multi-tasking [8, p. 59]. All the abovementioned techniques are building-blocks of an emotionally-aware lawyer. Lawyers who are emotionally aware and actively focus on burnout prevention, demonstrate compassion to themselves and by extension-to their clients. In sum,

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The Language of Compassion: A Few Lessons from Michigan Lawyers… lawyers could benefit from the study of human emotions and feelings [28, p. 19]. Such benefits can manifest themselves in better emotional self-regulation of lawyers and higher referral rates. Still, there are scholars who remain skeptical as to measurable and positive impacts of empathy in the realm of human interactions [2].

Understanding Human Suffering Through Tort Law
An individual's odds of dying from external causes are affected by the activities in which the individual partakes in. The "Lifetime odds of death for selected causes" statistics issued by the U.S. National Security Council provides figures as to external incidents that could lead to death; the study suggests that the odds of dying from a motor-vehicle crash are 1 in 93, a fall are 1 in 98, a pedestrian incident are 1 in 485 and a motorcyclist are 1 in 747 [35]. Motor-vehicle accidents, pedestrian accidents and accidents which include motorcyclists are all potential personal injury disputes. Interestingly, the bulk of all mediations stem from contractual disputes or torts [30], and reports published by the Department of Justice in the 1990s suggest that three out of four tort cases settled out of court [7]. If most cases settle out of court [12], including personal injury disputes, then teaching an overly litigious approach of dispute resolution may seem redundant. While personal-injury disputes could be prone to out-of-court settlement processes, tort law's distinct features may also help law students better understand the role of emotions and human suffering in personal injury disputes.
Tort law deals with lost lives, broken bodies, distressed survivors, damaged and polluted property and destroyed reputation [15,34], tort law is also a "human instrument, capable of providing psychological therapy and palpably manifesting 'empathy" [22,18]. If legal remedies insufficiently capture the nature of suffering and should suffering itself be influenced by a variety of factors, compassionate communication can potentially fill in the voids and help clients distinguish between their injuries which are in the body (tangible) and in the mind (intangible).
Further, the human body exemplifies the nuanced relationship existing between human suffering and legal remedies. Hyde's analysis of state capital punishment practices offers the concept of a "sentimentalized body," which demands and seeks out the feeling of empathy from others [17]. In the personal injury context, there is a risk that "sentimentalized bodies" of plaintiffs can experience different emotional reactions to cross-examination at trial and to a conversation with lawyers and mediators in a non-adversarial setting. It may be that such conversations can aggravate injuries inflicting psychological harm and overall suffering. Therapeutic practices and interventions have had a positive influence on resolving disputes stemming from personal injury, alleviating mental suffering of parties [36, p. 275]. Discussing emotions with clients can make them feel better; as such, a quality dispute resolution classroom experience would allow law students to practice the non-obvious skill of allowing plaintiffs to feel heard. Some lawyers believe it is important to talk about emotions as such discussion can result in clients feeling better:

I've had clients say, you've really made me feel better. When I talk about their emotions, their feelings, I made sure that they feel heard because I think that's important. [Interview, A14].
Other lawyers also believe in the power of storytelling as a communication instrument: …The human story is what's going to move a jury. And that matters from the beginning because what moves a case to settlement is nothing but a prediction range of probable outcomes if the case goes to trial and a relative likelihood of each outcome; anybody who thinks of the law, especially the law that applies to a personal injury case. In other than a probabilistic prediction of outcomes, if a court handles that case is missing the boat as far as their cases concern; does some so-called black letter law matter? Sure, it becomes a driver in engine of either agreement or structure, or resolution. But it isn't actually the law of the case, and the human story still matters the most, I think… [Interview, A19].
Some lawyers signaled 'the need to be heard' as a fundamental interest of litigants and a part of the human nature factor of litigation: Being mad and angry is not a compensable injury unless it has a psychodynamic piece to it.What complicates a personal injury case is the misunderstanding of what justice and compensation objectively mean. This is especially true when analyzing wrongful death claims. Although the legal system is set up for compensatory damages, parties filing personal injury claims do not equate their loss of a significant other, family member, or close friend with a monetary amount:

I am pretty well-known as somebody who listens attentively when somebody speaks, and I pretty much let them [clients] have their say without interruption. And then I go back and fill in the gaps. I want to add in the meeting
The loss of a loved one competes directly, at times, against the monetary purpose of civil litigation system. [Interview, A7].
Thus, understanding the nature of compensable and non-compensable injuries in personal injury suits amounts to building better communication patterns between lawyers and clients. Training law students in distinguishing between tangible and intangible interests of personal injury clients can lead to better settlement outcomes. As a result stronger and more successful lawyers enter the personal injury profession.

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The Language of Compassion: A Few Lessons from Michigan Lawyers…

Distinguishing Tangible and Intangible Goals in Personal Injury Suits
Research suggests clients resort to litigation because of material, psychological, and emotional needs to alleviate effects of what they identify as distressing experiences [26, p. 194]. Such distressing experiences result in distinct injuries, which from a legal perspective can translate into tangible (monetary) and intangible (nonmonetary) interests [19]. For example, in auto-vehicle cases, damages are awarded for both physical injuries/economic losses (tangible) as well as pain and suffering (intangible). However, some lawyers are of the opinion that in personal injury disputes intangible interests do not surface at all:

And that's the general consensus is why in personal injury cases then nonmonetary interests or the intangible interests don't surface at all because people just want to get the case settled and get on with their lives" [Interview, A9].
To further exemplify the intangible and tangible dilemmas present in personal injury disputes, tort law distinguishes five types of losses in wrongful death cases [23, p. 6]. The distinction between the five types of losses is helpful to compartmentalize and understand monetary and non-monetary interests better: (1) the first loss is the decedent's life itself, (2) the second is the trauma and bereavement suffered by the decedent's survivor, (3) the third is the pecuniary value of the decedent's contributions towards his or her dependents, (4) the fourth loss is that of society and companionship, and finally (5) the fifth loss are direct costs associated with death. The five losses exemplify a myriad of complex legal challenges in a personal injury suit. Yet, most personal injury counsel only see clients' objectives primarily through monetary considerations, while most of the non-monetary interests, such as apologies, acknowledgement of harm, etc., remain invisible [27]. However, lawyers may not distinguish between tangible and intangible interests, but rather see the dynamic between the two as a complementary one:

Communication in the Personal Injury Context
Gellhorn's research demonstrates that clients will reveal critical information as soon as they have an opportunity to speak: "the phenomenon confirms the salience of personal and psychosocial elements in people's lives and hence in their legal cases as well." [13]. It is therefore critical to initiate compassionate communication as early as possible. An early communication intervention is the client-interview process and to achieve the best results from this process, a lawyer should demonstrate: an interest in the operation of human nature, a thorough knowledge of the principles of civil investigation, a thorough knowledge of the specific matter of an interview, and the ability to engender trust and inspire confidence [39]. Zalma suggests that there are three elements that form a successful foundation of a lawyer-client relationship: (1) understanding human emotions, (2) having expertise in the subject matter, and (3) establishing trust. On the same token, Brice distinguishes three steps of establishing a successful lawyer-client relationship: (1) instilling in the client a feeling of confidence that the selected attorney is capable, interested in the problem, and able and willing to devote every effort to the client's case, (2) obtaining a fair fee contract which will compensate the lawyer for the efforts he is to render, and (3) gathering the facts which will form the foundation of the case. [4, p. 271].
Clients are like consumers and they primarily value tolerance, sensitivity, and compassion in those who represent them [10, p. 44].

A compassionate lawyer does not say I understand or that they feel the client's pain. A compassionate lawyer asks the right questions and stays in touch with the client. [Interview, A7].
One way to demonstrate sensitivity is through establishing a good working relationship with clients. It seems that lawyers can achieve this goal by getting to know them personally:

I always make it my business to really learn and spend a lot of time with a client over the year. Visit his home, meet his family, or go out to where he lives, get to know all facets of his life (…) You can do all of that if you have a small firm. (Interview, A22).
However, there are also limits to what a lawyer-client relationship can be:

Part of your job as a lawyer is counselling, (…) but there are limits to it. There's a gray line between I'm about to give you legal advice versus -I'm about to give you life advice. [Interview, A10].
Further, lawyers can demonstrate compassionate communication through addressing emotions: (…) and it really comes up a lot more than people would think of (…). They are not just there to get a legal thing done, they're there to fix a problem, (…) but there's always some sort of emotional baggage with it. But you'd have to work through it to even get your client to be actually satisfied as to where they are at (…) [Interview, A15].
In a personal injury context, being able to translate what justice and compensation objectively mean develops trust and transparency, establishing positive lawyerclient rapport. Reality-testing and honesty may help establish trust, which in turn builds positive rapport with the client: [C]an I be honest with you, and nobody at the table ever says no." [Interview, A19].

The Language of Compassion: A Few Lessons from Michigan Lawyers…
Other examples of honesty and transparency include accepting or admitting responsibility, even if representation was shared by different lawyers: The case that we mediated successfully just before that was a legal malpractice case in which a lawyer had a blown an underlying wrongful death personal injury case, hired separate counsel to appeal the inquiry. And so, in the case we didn't think the separate counsel had done anything wrong, but the lawyer that we sued who blew the statute of limitations. And she continually pointed the finger at the appellate counsel. And every time she did that, it enraged our client. It inflicted the wounds of the loss that they had suffered because the lawyer was not as my client put it to me, just was not taking responsibility for what she had done. And I'm not saying that taking responsibility makes the case go away. I think that taking responsibility softens the edges. It's soft.
Sometimes plaintiffs seek legal redress only because they have been ignored by defendants prior to the lawsuit being filed. Plaintiffs can be very emotional before seeking legal counseling. As a result, lawyers may need to address emotions of the client first and later proceed to a thorough analysis of the law. The client needs to feel and not explicitly know that the lawyer will do their best to settle the case. One lawyer observed that: Following Zalma's model engendering trust and inspiring confidence may happen with a realistic assessment of available settlement options. Lawyers may risk litigation if they do not communicate settlement options in a thoughtful and compassionate way:

In the initial interview in the intake stage, our genuine interests is not so much the facts and circumstances of their potential claim as it is who they are and
There are alternatives to litigation, such as mediation, and the lawyer has to assess what the alternative process should bring about -is it a faster monetary recovery? Is it something more than money? From a consumer perspective, if something is offered as an alternative, it is important to understand and assess what are the minimum standards that will safeguard the process at little, or zero cost to the litigants? [Interview, A20].

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Of course, clients are free to choose whichever settlement option they believe serves their interests best. Yet nudging and encouraging clients to realistically assess possible settlement outcomes in litigation is also a fundamental skill that can be evidence of compassionate communication. One lawyer explained: In personal injury disputes settled outside of courts with a third-party neutral present, the burden of compassionate communication is shifted to the mediator. The mediator must engage in a difficult task of equating someone's pain and suffering with a monetary amount that would not have been incurred by the claimant, but for the accident and resulting injury. Such a conversation may give people the perspective they need in what may be a decision-making moment: The mediator gives the parties the perspective only because the parties have given the mediator permission to be honest [Interview, A7].
Even though most attorneys do use the same open and honest style of communication, clients may be more receptive to the same type of message being reinforced by a mediator, thereby giving the lawyer more credence. Reframing questions and statements is a useful interviewing skill helping facilitating communication with personal injury clients. For instance, a statement like: "there is no amount of money that you would accept for your loved one to be killed" is different than asking: "what amount of money would the client be satisfied with after losing a loved one in an accident." Essentially, in a personal injury case, parties have to equate loss with money. Additionally, parties must recognize and acknowledge that should the case not resolve, the jury will be left to conclude about whether the claimant recovers damages or not, and if the claimant is to receive damages, what amount in damages the claimant is to receive. Thus, introducing a third-party neutral to the dispute may help the lawyer communicate bad news to clients rather than having that "bad news" come for a jury of their peers. In conclusion, although having subject matter expertise is fundamental to legal practice, the way solutions and settlement alternatives are communicated to clients is also a central lawyering-skill.

The Medical Malpractice Case Example
Medical malpractice claims are similar to personal injury claims in a sense that both areas of law are critically intertwined with short and long-term goals relevant to an injured person. Furthermore, the deny and defend practice of insurance companies effectively prolongs dispute-settlement processes contributing to more antagonistic attitudes between parties. Thus, without a trial and court date, parties and lawyers may lose incentive to settle.
While parties may lose incentives to settle amicably out-of-court, when a trial date is known, lawyers have to shift their focus from clients to jurors. Trial lawyers in medical malpractice cases recognise that such shifts in their optics may be ethically challenging: (…) the better you get in a courtroom -you are wining cases that you should not have. [Interview, A1].
Therefore, some lawyers argue it is important to listen to clinicians first, and not the lawyers in a dispute. Second, the reality of practicing medicine entails that despite a bad outcome for a client, such bad outcomes do not warrant automatic compensation, but may alienate doctors from their patients: Trial lawyers interact with people when they are at their most vulnerable moments, and in those moments, what may be helpful is the support of a third party neutral.

Conclusion
The communication examples featured in this paper offer only a glimpse into the every-day realities of practicing personal injury law and demonstrate a handful of role-play scenarios for students to practice compassionate communication. This note indicates that personal injury lawyers recognize some benefits of establishing a personal relationship with clients, and honest, compassionate communication. It seems that when lawyers have a fundamental understanding of what the legal system has to offer and what the parties' goals and interests are, they can offer a more realistic assessment of a case to their client. If such an assessment is communicated compassionately, there may be a greater chance of a successful settlement.
Implementing compassionate communication practices has clear benefits that can supplement the settlement process. Teaching compassionate communication through personal injury scenarios allows law students to hone in on their soft-skills which are: effective interviewing, active listening and an assessment of monetary and nonmonetary goals. Applying personal injury role-play scenarios can improve perspective-taking and build emotional intelligence of law students. Ultimately, law students would stand to benefit significantly from engaging in constructive and productive communication training while attending law school. While this note specifically references personal injury cases, the reality of the legal profession is that clients both in the personal injury realm and clients outside such a realm both have monetary and non-monetary interests. Those interests must be addressed by the client's counsel in order to effectively represent the client's interest and, more importantly, achieve a favorable outcome for the client by-way of amicable resolution. Such practices, skills, and methods suit both personal injury attorneys and attorneys practicing in other areas of law and, thus, compassionate and empathetic representation needs to be at the forefront of teaching future lawyers making their way through law school.
Funding This work was supported by The Kosciuszko Foundation.
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