The Art of Empathy

Are we at War?

“Strategy without tactics is the slowest route to victory. Tactics without strategy is the noise before defeat.” -Sun Tzu, The Art of War

Has the trucking industry come under attack? Are we at war? Consider that question next time you drive down the highway, past the stern face of yet another billboard lawyer, looking down upon passers-by, seeking “justice” for their client. Consider it the next time another “nuclear” verdict, taken against the trucking industry makes national news.

We can keep utilizing the same old tactics we have been using for years. We can follow a reactionary script, forming our battle lines with ammunition in hand, to combat the guerilla warfare being waged by the proverbial unreasonable plaintiff and their attorney flying in on the corporate jet. Hopefully our black powder, a hefty hourly rate, our six-minute billing increments, and a docket that drags on for years until the day of reckoning at the courthouse will carry the day. Then again, since hope is not a strategy, we would suggest considering an alternative. It’s time to fight smarter, not harder.

One of the most powerful, and perhaps most underutilized tools at our disposal is the power of empathy. What if empathy itself could be learned and deployed as a strategy? We propose that empathy could be used to help quickly and efficiently evaluate, mitigate, and resolve risk, and that, after all, is the victory we all seek to achieve. First, let’s talk about what empathy is.

According to the Merriam-Webster Dictionary, empathy is defined as “the action of understanding, being aware of, being sensitive to, and vicariously experiencing the feelings, thoughts, and experience of another of either the past or present without having the feelings, thoughts, and experience fully communicated in an objectively explicit manner.” Perhaps Atticus Finch’s explanation to Scout in the movie, “To Kill a Mockingbird,” was best, when he said, “You never really understand a person until you consider things from his point of view, until you climb inside of his skin and walk around in it.” Seen this way, empathy allows us to see someone else’s perspective while maintaining our own sense of self. Therefore, it is important for us to identify and address our own biases, prejudices, and preconceived notions that might taint our perspective. With these issues in mind, we propose an empathic strategy that begins with understanding ourselves.

Have We Overcome the War Within?

“Victorious warriors win first and then go to war, while defeated warriors go to war first and then seek to win.” – Sun Tzu, The Art of War

Perhaps we should prepare ourselves for battle, before deploying our newly rediscovered, super-tactical strategy of empathy by first challenging some of our own thoughts. Is it possible that the world we see all around us is simply a projection of the collective of assumptions, prejudgments and prejudices we harbor deep inside? Do we inadvertently allow our inner most thoughts to transmute into mere shadow puppets on the wall of Plato’s allegorical cave? Are the things we see in others, projected on the cave wall or “screen of life,” the screen’s fault, or is it something broken inside our internal projector?

In her book, “Loving What Is,” Byron Katie describes a very powerful and empowering process she calls, “The Work.” Katie, as she is often referred to, explains that perhaps the easiest way of discovering self-love, and thereafter projecting that love to the world around you, is to challenge your thoughts. Instead of focusing on what should be or what your perception of reality is, one should instead choose to love what is by gaining a true understanding of the varied array of possible truths and focusing on the preferred version of your life’s reality. We highly recommend her work and website at www.thework.com.

For our purposes, in preparing ourselves to deploy empathy as a strategic weapon, we suggest a simple tactic, inspired by the work. Simply stated, we will “walk the block” to understand ourselves. Allow me to explain.

Imagine a box, drawn on a sheet of plain white paper. We like to think of this box as a neighborhood block that we will take a walk around to increase our self-awareness and ultimately gain empathy. Let’s start on the north end, or the top of the block. Think back on a time, after having just been triggered by someone else’s action(s) (your husband, your wife, your teenager, your co-worker) and what judgment you cast about the person who triggered you. Write that judgment down just outside of the box on the top side. Consider the possibility that the judgment you cast is simply not true – in whole or in part (side note: judgments we cast are almost never 100% true). How did the trigger make you react or feel when you believed that thought to be true?

Did you feel rage, resentment, bitterness, ill-will or other toxic feelings and emotions? Write all those feelings down. Now, consider who you would be without those feelings. Hint: probably a lot nicer, kinder, clear-headed, deliberate, person.

If the person who triggered you was seated in a chair across from you right now, what would you like to tell them? What would you really like to tell them? Now, let them have it (virtually) and don’t hold back. Be petty. Get nasty. Tell them what you really think. After you’ve released all that anger, frustration and four-lettered words of affection, let out a loud scream, take a few deep breaths, and let go of those feelings – quit letting them have power over you.

Next, consider the exact opposite of the original judgment you cast. Write that opposite judgment down on the south side, or the bottom of the block. Consider the possibility that the opposite judgment is true. We’re not asking you to concede defeat, we’re just asking you to consider the possibility that it might be true. How does this new possibility make you feel? What feelings arise when you believe this alternate possibility to be true? Write all those feelings down. Now, consider who you would be with those feelings. Hint: probably the antagonistic, button-pushing, nemesis who you are trying to understand.

Now that you are occupying the virtual chair of your antagonist (who you just yelled at), yell back … at yourself. How were you off base or wrong in your initial assessment of the situation leading up to being triggered? Channel how your self-serving thoughts and emotions might have made your antagonist feel. Try and release the rage for them and you might just uncover some deep-seated emotion they possess that you simply didn’t allow yourself to see before. Post-revelation, make a list of possible feelings they may possess and consider taking away the power those thoughts and feelings have over your antagonist by liberating them with the relevant truth.

What is the relevant truth? Before we explain what the “relevant truth” is in the final step, we need to look in the mirror.

The third step, and possibly the most difficult, is to consider the possibility that the judgment you originally cast was really coming from inside you. In this third, “me” version and just outside the block on the west or left-hand side, write down the negative attribute you assigned this other human being, reassigning it to yourself. What evidence do you have to support that the original judgment originated from inside of you? By really allowing yourself to consider the possibility that you are simply projecting negative traits on another, you may discover and thereby eliminate the possibility of assigning your own internal, highly subjective attributes to another. Hint: It is critically important to compartmentalize “self” in order to achieve the quantum of objectivity empathy requires. By maneuvering three-quarters of the way around outside of the box, we may achieve a clearer, more objective look through the eyes of another.

Are we Prepared for the War Without?

“He who knows his enemy and himself well will not be defeated easily.” Sun Tzu, The Art of War

Of course, you can skip the first three steps of walking around the block if your normal reaction to a trigger (without deliberation) reliably gets you what you want. In our experience, we occasionally say something harsh that is self satisfying in the moment, and while true (from our perspective) is perhaps irrelevant in getting us what we really want. Oh, we might manage to deliver a healthy dose of comeuppance to some folks who have it coming or let them know what we “really think” about them. Then, we feel that sinking feeling. We start to wonder, can that email be unsent? Can that post or text be recalled? Can we unwind the damage caused by the venomous words that provided that temporary high or is it too late? Sound familiar?

We don’t mean to suggest that telling the truth is not important. Brutal honesty, on the other hand, may need to be tempered in order to ensure the truth is also relevant. The question you should ask yourself is – “Is the judgment I am casting and all of the facts and feelings about that judgment relevant to getting me what I really want?” What could we achieve with a little deliberation? What if we created space and, in that moment of deliberation, we examined an alternate truth that would refocus our reaction, aiming it directly at our desired objective in the context of using empathy as a tool? Let’s complete our walk around the block by writing down the “preferred version” next to the eastern, or right side, of block. This is the preferred version of the judgment we choose to cast, after considerate and reflective deliberation with a focus on achieving our ultimate goal of evaluating, mitigating, and resolving claims. By taking this measured walk around the block, we can clearly articulate what we want and the obstacles as well as emotions that stand in our path. This preparation to understand our perspective and begin to understand other perspectives is essential if we are ever to truly experience the power of empathy in our daily work.

Is it Possible to Win Without Engaging in War?

“The supreme art of war is to subdue the enemy without fighting.” – Sun Tzu, the Art of War

Now that we have prepared ourselves for “War,” you might find the climactic end somewhat, well, … anticlimactic. What is the next step?
Something we like to call the Texas Two-Step! (Welcome to Texas y’all!)
Here’s how it works.

Step 1: Negotiation. Start by using empathy to avoid war in the first place. Begin not by talking, but by listening. Remember the words of Teddy Roosevelt, “No one cares how much you know, until they know how much you care.” Everyone knows you don’t care if you don’t listen. Hint: When you scramble the letters to the word “Listen” it spells “Silent.”

We have to figure out how to get the parties to the table and start talking. The sooner we reach out to the claimant and/or the claimant’s attorney the better. We would suggest the most experienced, capable claims professional available make initial contact. In cases of catastrophic loss that may be the person in charge of claims, assigned defense counsel, or an officer of the corporation.

For the initial contact, we recommend an in-person meeting on “their turf” and offer to buy them lunch, dinner, or maybe even coffee. Yes, we are recommending getting them to an actual table to meet eye-to-eye, face-toface. The scheduled one-hour event, accompanied by food or drink, almost forces a more deliberate, careful, scaled approach to the message you wish to convey and information you wish to obtain. You also gather crucial nonverbal ques in an in-person meeting that would be lost over the phone or in an email.

The sooner you can show that you care by engaging the claimant, the sooner you can create space, get quiet, and listen. When claimants feel discounted.

Notably, the approach outlined below is carried out by the primary attorney(s) in the case in contrast to a model that prefers hiring a “negotiation counsel” (see Jim Golden , H. Abigail Moy, Adam Lyons, The Negotiation Counsel Model: An Empathetic Model for Settling Catastrophic Personal Injury Cases, 13 Harv. Negot. L. Rev. 211 (2008)). and ignored, they get angry, entrenched and resolve to take their case “the distance.” Despite the value of their case, human beings need to feel valued.

Consider opening the conversation with the sub-super tactic of vulnerability. Remember, vulnerability does not equal weakness. Hint: Superman had kryptonite, Indian Jones was scared of snakes, lawyers are afraid of tort reform, (joking). The point is, vulnerability is endearing and encourages others to open up and expose some of their inner most feelings, fears, and desires which may just start you on the road to reconciliation.

Resolve early on to resist the urge to solve the claimant’s problems for them or start spitting out solutions. We take a note from doctors who have been cited for interrupting patients a mere 11 seconds into a consultation (https://www.newsweek.com/doctor-patient-visits-1035514). Similarly, attorneys are natural problem solvers, the more we try to help the less empathetic we can become. Listening, without any agenda, will help the claimant regain a sense of power, in a situation where they likely feel powerless.

In conversations with the claimant, if emotions are expressed, you need to respond in a kind, caring manner. We suggest not telling the claimant you know how they feel. You don’t. Even if you’ve experienced a similar circumstance(s), your situation is not the same and may be read as dismissive of their feelings or unique experience. Instead, try an empathic statement. For instance, you could name (or label) the emotion they have expressed by simply repeating it. (“It made you angry.”) You may choose to make a statement that acknowledges the claimant’s emotional reaction as reasonable (also called legitimating). (“I understand why you are angry; that makes sense to me.”) You may also show the claimant respect by acknowledging the claimant’s plight. (“You have really been going through a lot.”) Encourage the claimant to continue to share. (“Thank you for being so open with me.”) What is important is to recognize the emotion and give some response. If an emotion is expressed and you don’t respond, you could cause damage to the relationship, which take us in the wrong direction.

Remember, in any lawsuit or contested claim, there will be points of disagreement – otherwise you’d have already paid the demand. You can commit to collision without resorting to combat. When these crucial moments arise, consider engaging in a “Crucial Conversation.” In their book (by that title), Kerry Patterson & et al., offer the solution of apologizing, contrasting, and announcing mutuality of purpose. (“I’m sorry I made you feel that way. I wasn’t trying to imply that your common law marriage was any less binding or important than any other marriage, but we have a common goal of establishing who the lawful wife of Mr. Jones is for purposes of the claims being asserted.”) With a slight shift we may avoid derailing progress and getting back on track very quickly without compromising the truth.

Avoiding honesty to keep the peace is a poor choice and we should always be committed to telling the truth. Demonstrating to the claimant that they can expect us to always take the moral and ethical high ground and tell the truth, whether that makes them happy, sad, or even infuriates them, is critical to resolving the claim in the future. Remember, now that they know we care, they will care what we know – good, bad or otherwise.

In some instances, authentic empathy can take a lot of time. But, as they say in the military – slow is smooth and smooth is fast. Moving forward with intentionality and a clear plan is the best way to evaluate, mitigate, and resolve the case without the necessity of court intervention. If initial attempts at negotiation fail, avoid stepping onto the field of battle (courthouse) by moving to the mediation phase.

Step 2: Mediation. We encourage a “two-step” mediation process (see what we did there?). The first mediation is scheduled well before all of the facts and evidence are compiled and reserves are set. Hint: This suggestion might make you feel funny because it is a paradigm shift.

The first mediation is a chance for everyone to meet. It is a chance for the claimant and their attorney to be seen and heard. Encouraged by your declared commitment to always be honest, the claimant might just mirror your behavior and be honest about what they really want. Armed with what the claimant considers relevant (getting what they want), you can formulate a clear and concise, agreed-to discovery plan to get you, and everyone else, what they consider relevant. Once compiled, risk can be assessed, reserves can be set, settlement offers can be authorized, structured settlement plans can be built, and a second mediation can be scheduled.

For the second mediation, the parties should attend with full information as detailed in the first mediation. This gives the parties the best opportunity for a successful mediation. If, however, the second mediation does not resolve the dispute, bow to your dance partner, walk away and prepare for trial. If you’ve been effectively using empathy as a tactical strategy and conducted relevant discovery already, you should be prepared for the war you’ve done everything in your power to prevent. Armed with informed consent, you can now march on the field with confidence and a clean conscience. In the end, using empathy will allow you to maximize the information you have for settlement, or if needed, for trial. And the only cost is the time and energy expended to understand the person on the other side.

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