In the last few weeks, I have been thinking about compassion in cross-examination. I know many lawyers may think these two concepts don’t belong together. But experience tells me that’s wrong.
I had a few experiences recently where showing kindness and thoughtfulness to other side led to excellent, arguably better, results for my clients. In addition, it felt a lot better for me.
In this post, I’ll explain why I think compassion and cross-examination can co-exist and some practical strategies lawyers can use to show kindness for everyone even while prioritizing client interests.
What Is Compassion?
As I have written before, compassion is not an emotion. It’s not a specific feeling. Instead, in the mindfulness world and in the clinical world, compassion is the response to suffering.
Some people get the idea that is foreign to lawyers. In fact, responding to suffering is precisely what lawyers do every day. This is why I usually bring up compassion when I speak to lawyers, firms, and legal groups about mindfulness.
However, many professionals in hard-hitting fields like law worry that compassion hinders our work. In contrast, I find that the opposite is true. In part, I think the fears that many people have about compassion really stem from misunderstanding it.
On area of confusion is that people conflate compassion and empathy. In reality, they are distinct. While compassion is supported by mindfulness and equanimity, empathy includes taking on the feelings of others.
Can Lawyers Show Compassion for the Other Side?
Of course, many lawyers may be thinking that compassion for an opponent or a third party witness is not permitted. That’s because lawyers owe a duty of loyalty to our clients. Because we have to put our clients first, we may think that we can’t or shouldn’t be concerned with others.
However, this is only partially true. A lawyer’s duty of loyalty to our clients is counterbalanced by other duties. In particular, lawyers have a duty to show fairness, courtesy, and respect to everyone involved in the legal process.
Beyond this, as I will discuss more below, it just isn’t true that being kind to our opponents is contrary to a lawyer’s duty of loyalty to our clients. To be sure, the primary focus for lawyers should be on serving our own clients’ interests.
The reality is that kindness to other people, even our opponents, can serve those interests. As discussed above, compassion is not the same as empathy. It is not about prioritizing the suffering of an opponent over your client or even yourself.
Instead, compassion is premised on appropriate boundaries and clarity about how we are all interrelated. As a result, lawyers can show it to our opponents and ourselves without sacrificing our duty of loyalty to our clients.
Compassion in Cross-Examination Is Good for Lawyers and Clients
When I talk about compassion, one of the things I always emphasize is that people who show it are the first to benefit from it. Since compassion is the response to suffering, we sometimes get the idea that our response is only for another person’s suffering.
This isn’t really true. Compassion is big enough to include ourselves and to include other people, even ones that we may find difficult. Moreover, when we show compassion, we benefit. Responding to suffering with a willingness to help does not weaken us. It actually makes us feel good because it causes the release of hormones associated with connection, well-being and satisfaction.
Additionally, showing kindness to our opponents may protect lawyers from the damage caused by moral injury. This occurs where we have to do something we know is wrong. For lawyers who may handle cases involving injured people or intense facts, it can hurt us to hurt others more.
In the same way, clients may benefit when lawyers can show humanity to the other side. Most trial lawyers know that likability is a huge factor in jury deliberations. Lawyers also should be concerned about how their behavior reflects on the mission of the client they represent. For example, I’m a school lawyer and the mission of my clients is to serve and educate students. In light of this, it makes no sense for me to treat the parents, students, and care providers I sometimes have to cross-examine as enemies.
In addition, most cases these days are resolved by settlement. Lawyers who exhibit overt aggression may undermine their clients because strained relationships can make resolution harder.
Practical Ways Lawyers Can Deploy Compassion in Cross-Examination
Now, even if you are convinced that compassion in cross-examination may be a good thing for lawyers, you may wonder about what it means on a practical level. To that end, I think this is more about subtle shifts intended to mitigate and reduce harm.
I’m not saying that lawyers should avoid asking hard questions. Sometimes we have to ask pointed questions to get the truth and serve our clients. But we can get intentional about making the process of cross-examination less hard on the people involved. Here are a few strategies that I have used in my own law practice.
1. Be Efficient
Testifying is hard and scary for most witnesses. The first compassionate thing that lawyers can do to show kindness to everyone involved is to avoid making it take longer than necessary. Focus your questioning on what matters. Keep your materials organized so you can move quickly through your questions. This helps the witness and it helps avoid extra expense for your client.
2. Clear Is Kind
Related to organization is clarity. Lawyers who don’t want to add stress to a cross-examination should take time in crafting their questions. Confusion leads to stress, disputes, and distrust. People say ‘clear is kind’ for a reason. If you have to ask hard questions, at least use clear, nonjudgmental language.
3. Stipulations
Most lawyers who took civil procedure probably never thought of that class as a way of showing compassion. In reality, procedural rules offer lawyers elegant solutions for efficiency and avoiding fights. Stipulations are one such tool. Carefully crafted stipulations may help you avoid asking questions about things not in dispute. This could help you avoid questions about difficult subject matters and it could benefit everyone involved.
4. Tone and Facial Expression
All of us know that our facial expressions and tone of voice affect other people. If you want to reduce suffering when cross-examining someone, carefully monitor how you are asking questions. Staying calm and steady can help you ask the questions you need to ask without adding extra stress and pressure to the situation.
5. Make Space for Emotions
Here’s an important truth about emotions: they need time and space. If you are cross-examining a witness on a sensitive subject, make space for emotions. This may mean allowing breaks. It may mean slowing down the questioning. Doing this may help you stay steady and clear while questioning and it may avoid disputes and unclear or confusing answers.
6. Learn about the Impact of Trauma
I have written before about trauma and mindfulness. Trauma can also affect witness testimony. As the public at large learns more about the impact of trauma, it makes sense for lawyers to know it too. Lawyers who can show skill and understanding when it comes to trauma are the ones who will make the best impression on juries and fact-finders in presenting their cases.
7. Deal with Your Own Emotions
If the witness or opposing counsel is difficult for you, using strategies to calm yourself before the cross-examination can help you execute your work in the way you intend it. I have also found that prioritizing my own needs before a challenging cross-examination is essential. If I have a hearing or trial coming up, I make sure I eat, sleep, and exercise before. Stress in the body leads to stress in life. This is just one way that self-care can equate to care for other people.
Conclusion: Compassion and Cross-Examination Are Compatible
If you read this post because the title surprised or confounded you, that was part of my strategy. I know many lawyers might think “compassionate cross-examination” is an oxymoron. As this post explains, I don’t think it is.
Compassion is an innate human faculty and so it belongs in law practice. Lawyers, our clients, and our opponents are all humans involved in legal matters that are tense, uncertain, and full of suffering. We don’t have to make the suffering worse to do our jobs. Instead, with some planning and intention, we can show compassion even in the most of adversarial of our endeavors: cross-examination.
Want to learn more about mindfulness and compassion? Check out my new book, A New Year’s Present, to learn about mindfulness from a heartwarming story. For a simple guide to creating a meditation practice of your own in 30 days, try How to Be a Badass Lawyer. And to share mindfulness with your little one, check out my new children’s book, Mommy Needs a Minute.
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