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Townsley, Lesley --- "Thinking like a lawyer ethically: Narrative intelligence and emotion" [2014] UTSLRS 23; (2014) 24(1) Legal Education Review 68

Last Updated: 21 April 2017

THINKING LIKE A LAWYER ETHICALLY: NARRATIVE INTELLIGENCE AND EMOTION

Lesley Townsley*

ABSTRACT

This article considers the embedding of the ‘Ethics and Professional Responsibility’ graduate attribute into two subjects at the Faculty of Law, University of Technology Sydney: Ethics and Professional Conduct, and Evidence and Criminal Procedure. The focus is on an aspect of how law students are taught to ‘think like a lawyer’ and make legal decisions that require ethical judgment specifically narrative intelligence and the emotional content of ethical judgment. The content of two teaching and learning strategies that incorporate emotional knowledge will be explained. The purpose of the strategy in Ethics and Professional Conduct is to equip students with an understanding of the impact of emotions on ethical judgment and the need for emotional self-awareness. The purpose of the strategy in Evidence and Criminal Procedure is to equip students with an understanding of the ethical implications of how lawyers use emotion persuasively and tactically to influence juror judgment. Cognitive philosophy is applied in these strategies to exhibit how emotion within narratives can be the subject of analysis and how lawyers use emotion to influence juror decision-making and whether, and in what circumstances, this is ethical.

I INTRODUCTION

The Faculty of Law at the University of Technology Sydney recently implemented a new curriculum for both the Bachelor of Laws and Juris Doctor. The new curriculum was designed, in part, to embed graduate attributes[1] more pervasively across these degrees allowing students to develop skills and acquire knowledge incrementally. One of the graduate attributes is ‘Ethics and Professional Responsibility’ and the new curriculum has provided the opportunity to assess and develop the content of legal ethics education. This article considers the embedding of the ethics graduate attribute into two subjects: Ethics and Professional Conduct, and Evidence and Criminal Procedure. The focus is on an aspect of how law students are taught to ‘think like a lawyer’ and make legal decisions that require ethical judgment specifically narrative intelligence and the emotional content of ethical judgment. The content of two teaching and learning strategies that incorporate knowledge about emotion will be explained. The purpose of the strategy in Ethics and Professional Conduct is to equip students with an understanding of the impact of emotions on ethical judgment and the need for emotional self-awareness. The purpose of the strategy in Evidence and Criminal Procedure is to equip students with an understanding of the ethical implications of how lawyers use emotion persuasively and tactically to influence juror judgment. In this respect, this article contributes to how legal academics can develop in students the theoretical and professional skills required for ethical practice.

In the legal domain emotion is generally viewed as an irrational force on judgment and should therefore be excluded. However disciplines which offer cognitive theories of emotion such as philosophy,[2] psychology,[3] and neuroscience[4] challenge this view. These disciplines demonstrate that some emotions involve evaluative judgments that can be appropriate or inappropriate and thus emotion can assist or impede judgment. Understanding the evaluations contained in emotion leads to better self-awareness and the ability to educate one-self about emotional capacities and responses. With this awareness decision-makers are better able to account for the positive and negative influences of emotion on judgment including ethical judgment. This article will apply aspects of the cognitive accounts of emotion from contemporary philosophy in order to demonstrate how emotions can be analysed and how this can lead to better self-awareness and the ability to evaluate the moral justifiability of certain emotions.

Law and emotion scholarship recognises the contributions of these disciplines demonstrating the interrelationship between law and emotion[5] and legal education and emotion.[6] The legal academics Abrams and Keren describe the legal academy’s reception of this scholarship as ‘ambivalent’ and that this attitude is ‘at sharp odds with its pragmatic potential.’[7] The legal theorist Peter Goodrich argues that this attitude arises because subjective considerations such as emotion are not valued and recognised in the legal domain because they are considered as belonging to ‘a realm outside of law’.[8] Further, Goodrich observes:

Legal training teaches the subject to separate the personal and the legal, demanding the repression of emotion and the privileging of the objectivity of rules over the subjectivities of the truth – Aristotle’s wisdom without desire.[9]

Legal training promotes objectivity because the validity of legal judgment is premised on the perception of unbiased and consistent application of the law. If emotion is repressed then legal judgment appears to be objective. Legal training achieves the appearance of objectivity, in part, through legalism where abstract logical reasoning applied to rules is privileged over contextual, social or personal factors. The emphasis on objectivity, logic and legalism fosters the rational attributes of law students by attempting to separate them from their moral and subjective experiences.[10]

Legalism manifests in teaching students to ‘think like a lawyer’.[11] Teaching students to ‘think like a lawyer’ has been described as the obligation of educators to ‘exorcise’ students’ subjectivity.[12] Learning how to ‘think like a lawyer’ has been described as a process which ‘steals one’s soul’.[13] According to Kristen B Gerdy the focus of legal educators on logic and critical thinking to the exclusion of emotional and humanistic concerns gives the message that dealing with emotions and personality is inconsistent with legal thinking.[14] This is problematic for Gerdy because if ‘thinking like a lawyer’ does not involve a human context, then legal analysis is being taught in a vacuum where there is little discussion on how the law impacts on the lives and emotions of the people being discussed.[15] The human context also includes law students and their values and emotions.

There is evidence that some Australian law students are concerned and dissatisfied with these aspects of legal training. Student members of the Australian National University Law School Reform Committee published a report in 2010[16] in which students provided insights into their experience of legal education. Students felt ‘disillusioned by a lack of intellectual and emotional engagement’ and wanted legal education to ‘make space for people with different experiences, talents and forms of intelligence.’[17] Another stated ‘as we learn how to ‘think like lawyers’, let’s also cultivate our capacity to think like human beings’.[18] Others wanted the curriculum to include ‘deep ethical inquiry’.[19] In relation to the personal skills required in lawyering students noted the absence of opportunities to develop these and ‘found there was little attention given to the development of empathy, personal morality and values.’[20] This sample of students identifies the omission in legal education to encourage subjective and humanistic concerns. They appear to consider this omission as affecting the quality of their education and their ability to develop professionally, personally and morally.

The analytical framework of ‘thinking like a lawyer’ is relevant to legal-ethical judgment and decision-making because this is another form of problem-solving undertaken by lawyers. Angela Olivia Burton has articulated a model of ‘thinking like a lawyer’ which explicitly identifies sites where emotion is relevant: the personal intelligences and narrative intelligence. This model will be briefly outlined in Part II. The personal intelligences involve the psychological emotional intelligence frameworks of intrapersonal and interpersonal skills. The incorporation of emotional intelligence into the law curriculum is seen as an opportunity to strengthen the professionalism of lawyers[21] and has been the subject of much academic interest.[22] Part III will focus on the role of emotion in narrative intelligence as this aspect is a relatively neglected area compared to the personal intelligences. However, the personal intelligences including the capacity for empathy and emotional self-awareness are related to narrative intelligence. This relationship will be considered in Part III, A and B, where the content of teaching and learning strategies for the subjects Ethics and Professional Conduct and Evidence and Criminal Procedure will demonstrate the kinds of emotional content that can be explored in conjunction with legal ethics. Cognitive philosophy is applied in these strategies to exhibit how emotion within narratives can be the subject of analysis, and how lawyers use emotion to influence juror judgment and whether, and in what circumstances, this is ethical.

II THINKING AND FEELING LIKE A LAWYER

‘Thinking like a lawyer’ can be broadly understood to mean the ability to undertake legal problem solving. The traditional approach to legal problem solving is mostly focused on skills such as written and oral communication and analytical skills such as analogical, deductive and inductive reasoning. Academics are now starting to focus on and expand the range of cognitive processes and analytical frameworks that underpin ‘thinking like a lawyer’.[23] Some of these expanded frameworks include less traditional forms of intelligence and the role of emotion. This scholarship is useful because it addresses issues that arise from a conception of professionalism which ignores or represses emotion and expands the concept of ‘thinking like a lawyer’ to include emotion. For example, Alexander Scherr recognises that cognitive processes are important but advances the role of emotion and narrative in practical judgment. He argues that lawyering involves both legal and non-legal realities but ‘little work has gone into what those non-legal realities might be.’[24] Similarly, Burton contends that there has been a disproportionate focus on some lawyer intelligences, like rule-based inductive, deductive and categorical reasoning processes.[25] To counteract this tendency Burton focuses on ‘multiple lawyering intelligences’. This pedagogical construct is ‘designed to expand the terms of reference for what it means to ‘think like a lawyer’ and thereby foster good judgment in students.[26]

Burton proposes the following lawyering intelligences model, summarised below, which is said to be ‘a set of distinct yet interconnected intellectual capacities that animate every kind of legal work.’[27]

  1. Linguistic Intelligence;[28]
  2. Categorising Intelligence;[29]
  3. Logical-Mathematical Intelligence;[30]
  4. Narrative Intelligence;
  5. The Personal Intelligences;[31]
  6. Strategic Intelligence.[32]

All six of the above intelligences are intellectual capacities and all are necessary for the ability to undertake legal problem-solving, reasoning and judgment. Narrative intelligence involves ‘structuring facts in the context of stories rather than in the context of legal rules, in an attempt to discover or demonstrate the meaning of the situation.’[33] For example, narrative reasoning permits consideration of contextual factors like moral, political and social considerations. Because of this narrative reasoning embraces facets of human reaction and judgment such as emotion and empathy and issues of right and wrong.[34] Therefore, lawyers use narrative reasoning to contextualise problems beyond legal rules, to gain an understanding of the perspective of their clients and others, and to construct stories that convey facts persuasively. Narrative intelligence has both cognitive and emotional content. The cognitive content of narrative provides a way of organising, interpreting, evaluating, elaborating, remembering, learning and communicating information. Scherr observes that in law, narrative ‘has a dense pedigree... narrative centres lawyering.’[35] Like Burton, Scherr states that narrative provides ‘a cognitive frame for data’ and ‘a tissue of language through which decision-makers discern the certainty necessary for action.[36] Similarly, Lorie M Graham and Stephen M McJohn state that stories are ‘almost an ideal data structure for human cognition’ particularly in relation to learning and memory.[37] Graham and McJohn also contend that moral reasoning is involved in legal reasoning and that this form of reasoning involves narrative intelligence.[38] This is consistent with the research of the cognitive psychologists David A Rettinger and Reid Hastie who arguethat when making morally salient decisions people undertake narrative processing (create stories) to identify, comprehend, evaluate and integrate material into a complex mental representation.[39] This suggests that the narrative analytical framework employed in ‘thinking like a lawyer’ is relevant to legal-ethical judgment. Narrative reasoning provides coherence and is essential in the process of judgment leading to legal and ethical decisions.

III THE EMOTIONAL CONTENT OF NARRATIVE INTELLIGENCE

Although Graham and McJohn, Burton, and Scherr recognise the role of emotion in narrative intelligence none of them elaborates on it. For Burton, narratives embrace facets of human reaction and judgment such as emotion.[40] Graham and McJohn observe that narratives convey emotive content effectively. They argue that cognitive science supports the contention that the emotive aspects of narratives make them easier to remember and it also makes them more persuasive.[41] For Scherr, narratives contain and express emotion and motivate the decision-maker toward choice and commitment to action.[42] Scherr briefly considers cognitive philosophy, in particular Martha Nussbaum, to demonstrate that beliefs and emotions are related and are open to assessment and criticism.[43] He concludes that awareness and appraisal of emotion forms a natural activity of practical judgment because it recognises that emotion influences choices.[44] This article will expand on two of these aspects of narrative intelligence: analysis of emotional narratives and the persuasive role of emotion in narrative intelligence.

The capacity of narrative intelligence involves the ability to recognise and evaluate emotional preferences, perspectives, beliefs, values and dispositions because these factors can influence judgment. Emotion is involved in the process of evaluation, for example empathy gets narrative judgment underway. The perceptive capacity to see the suffering of another is said to precede ‘the analytical, reflective and deliberative components of moral judgment.’[45] In cognitive neuroscience empirical studies have identified the neurological basis for narrative understanding of self.[46] According to Nussbaum, narratives contain and express emotion and are essential in the process of practical reflection.[47] Narratives evoke emotional activity and reveal the structure of an emotion allowing for the analysis of the emotional experience. Emotions can be appropriate or inappropriate and can influence judgment positively and negatively. It is necessary to examine the judgments contained in emotion to understand how they influence narrative judgment and choice.

At the heart of contemporary cognitive theories of emotion is the notion that emotions are intellectual and following the Stoics, cognitive theorists generally identify emotion with judgments or appraisals meaning affirmations or denials of propositions or appearances.[48] Cognitive theorists contend that the mental evaluative process involved in emotion produces thoughts.[49] According to Nussbaum the thought of the object, the belief about the object and the recognition of the object’s salience enables a person to identify with the emotional experience and the object of the emotion.[50] Emotional beliefs if true justify the emotion, if false invalidate the emotion, as such they can assist or impede judgment.[51] Whether an emotion is deemed appropriate or inappropriate depends on whether a person ‘gets the appraisals right, using a defensible theory of value.’[52] Accordingly, cognitive theorists refute the view that emotion is antithetical to reason and seek to establish emotion’s role in rationality. These aspects of Nussbaum’s theory will be elaborated on and applied below.

A Ethics and Professional Conduct – analysing emotional narratives

Ethics and Professional Conduct is a vocational subject in the Practical Legal Training component of the degree.[53] Under the recent curriculum review this subject will become a first year foundational subject called Ethics, Law and Justice beginning in 2014.[54] The ethics program at UTS Law actively encourages students to consider legal ethics broadly, including the role of emotion and personal values in ethical decision-making. All of the subject learning objectives in Ethics and Professional Conduct embed the ethics graduate attribute and one of the subject learning objectives directly relates to emotional content in legal ethics.

Upon successful completion of this subject students should be able to:

This learning objective is the same for the new subject Ethics, Law and Justice and the content targeting the impact of emotions remains largely the same. The following teaching and learning strategy was devised for Ethics and Professional Conduct and the discussion here will focus on how it was initiated in that subject. There are several topics within this subject where the emotional content of ethics is explored. For the purpose of this article the topic ‘Professional and Personal Conduct’ will be used to provide an example of how law students can be educated about the impact of emotion on ethical judgment and decision-making. The lecture for this topic considered when conduct can be both professional and personal and the resulting professional responsibility issues that can arise. In relation to personal conduct and emotion the case of Legal Practitioners Board v Morel[55] was used as an example of where love and personal relations with clients led to a criminal lawyer being struck off for professional misconduct. Other emotions are involved in legal practice but rarely are emotions like love considered in the context of professional judgment and practice.[56]

Morel was also used as an exam question where students were asked to discuss the case with reference to values, emotions and morals and to explain how different standards and perspectives influence the ethical behaviour of lawyers and the decisions of courts and tribunals. This was consistent with the seminar materials where other cases that involved love were discussed. The following questions pertained to the cases of Legal Practitioners Complaints Committee v Pepe[57] and Garde-Wilson v Legal Services Board:[58]

  1. What was the basis for the determinations?
  2. What values, emotions and moral codes were present in the Tribunal’s determination?
  3. Do you think the determinations were reasonable?
  4. Where there any alternatives to the Tribunal’s decisions?

The purpose of having students read and discuss the cases is so that they understand the factors the disciplinary tribunals considered relevant and irrelevant to their determinations including values, emotions and moral codes. However, question two does not adequately prompt consideration of how love can be analysed within those legal narratives and how it impacts on ethical judgment. The question encourages surface learning about the emotional content because it is framed in terms of identifying the emotions that were present. The questions place more focus on the Tribunal’s determination rather than the broader ethical issues. In the foundational subject Ethics, Law and Justice there is less focus on professional responsibility, as such these questions can be changed to refocus the discussion toward broader ethical issues, including emotion, and how these affect ethical judgment. Examples of proposed seminar questions follow the discussion of the seminar content below.

In order to illustrate the emotional content of narrative intelligence and how emotional content can be analysed the case of Morel will be used. This particular disciplinary case elicits a narrative of love and discloses how ethical judgment can be influenced by emotion. Morel was a criminal lawyer in South Australia who was struck off the Roll of Practitioners for deceptive and dishonest conduct. In 1989 she began a professional and personal relationship with a prisoner named McFarlane, they were married in 1990 and she ceased being his lawyer. They divorced in 1996 whilst McFarlane was still imprisoned. In 1997 she began a professional and personal relationship with another prisoner Paul Page. Morel lied to prison authorities stating that she urgently needed to speak with Page on legal matters whereas in fact, she wished to talk on personal matters. The prison authorities began monitoring Page’s conversations with Morel during which he admitted assaulting another prisoner. Morel was banned from visiting Page because the prison authority considered that she was using the privilege of legal visits to further her personal relationship with him. Despite this Morel continued to act for Page in a professional capacity.

This is an example of personal and professional boundary violations and the analysis here is not concerned with the breach of disciplinary rules. What will be illustrated is how love within this narrative can be analysed for the purpose of demonstrating the influence of emotion on ethical judgment. There is limited information about the personal emotional narrative of Morel. However the psychologists report provides some insight into the narrative of love and a salient aspect is extracted here.

She described in the past either not trusting people or trusting them too much. Ms Morel told me she is aware that she is a person who has a large capacity of empathy for others, a tendency to absorb other’s feelings and that this is what she has to be more careful about.

Ms Morel told me she now realises she got into trouble with these boundary issues as she did not know herself well enough to have a definite set of protective values.[59]

The report discloses that Morel had a relationship with another prisoner who resided with her whilst he served a sentence in home detention. This took place after she was removed from the roll.

In cognitive philosophy narratives can reveal the meaning of the emotion.[60] Exposing emotional narratives to analysis can lead to better judgment when assumptions, beliefs, dispositions and perceptions are scrutinised. Accordingly, narrative is the way we examine, evaluate and make sense of the emotional experience. Love is implied in the above narrative because of the intimate relationships Morel engaged in. Nussbaum states that love is an emotion but it is also a relationship and cannot be understood unless it is examined ‘as part of the complex fabric of a story that extends over time.’[61] Understanding this ‘complex fabric’ exposes the habits and dispositions towards engaging in certain kinds of relationships and thinking about love in certain ways. The case provides an incomplete narrative of love and there is no way of knowing the full historical and psychological features of that narrative and therefore the emotional habits and dispositions of Morel. As such, the following analysis does not purport to represent Morel’s actual motivations, thinking and feelings. The application of emotion theory provides a reading of the case that is speculative, but which illustrates the kinds of analysis that emotional narratives can be the subject of and which are suggestive of dispositions to think and act in certain ways.

The philosopher Robert Solomon contends that complex emotions such as love ‘involve process and story’ and that the stories we tell are ‘important to the nature of love itself.’[62] Different stories dictate different meanings of love and if ‘love is a narrative, many of the wrong stories are told.’[63] There could be unacknowledged reasons for love in relation to Morel’s relationships with prisoners. Solomon claims that unacknowledged reasons can be amongst the worst reasons for love.[64] For example people can enter into patterns and Solomon observes that there are several reasons for doing this. One reason is ‘the safety of such a relationship, the fact that it has built in limits of time and commitment.’[65] This is arguable; Morel did marry McFarlane suggesting commitment to that relationship but Morel knew that she could not conduct both professional and personal relationships at the same time, thus placing limits on the ability to commit and the longevity of future relationships. The tendency to choose partners in prison whilst also providing legal representation suggests a certain safety in the knowledge that the men are dependant both professionally and personally. Morel eventually acknowledged this stating

I understand I am responsible for both creating such dependencies and the damaging effect this need has had on my life and the life of the other person involved.[66]

Another unacknowledged reason for love is that the loved one satisfies ‘more neurotic needs – the need to be punished or martyred, the desire to take care of a truly pathetic human being, the need to play God with someone.’[67] This provides a way of understanding Morel’s ‘large capacity’ for empathy and absorbing the feelings of others and her own dependency in such relationships. The psychiatric review reported that Morel ‘tended to act in the role of a "rescuer" in relation to three prisoners’[68] indicating a misguided sense of empathy, sympathy or compassion which led to unethical behaviour. Empathy and sympathy are seen as other-suffering emotions.[69] However, these emotions are not about absorbing the feelings of others[70] and this highlights the need to develop appropriate emotional boundaries and detachment.

Characteristic of sympathy is a belief that the suffering of the other can be alleviated but acting in the role of rescuer suggests the possibility of Morel’s emotional needs surpassing the needs of the men she was involved with. Applying Nussbaum’s explanation of the evaluative properties of emotion demonstrates this point in theory.[71] The perception of the object of the emotion (a person, thing or event) is intentional, in that the thought of the object results in the emotion and the way the object is thought of depends on the person’s interpretation of it. Emotions are further characterised by beliefs about and the value attached to the object. Nussbaum argues that emotional judgments are a subclass of value judgments[72] and not all beliefs are emotional. Emotional beliefs are those that define the emotion and if true justify it.[73] Thus according to Nussbaum, the defining elements of an emotion are evaluative judgments based on intentionality, belief and value as related to the object of the emotion.

In Morel the objects of sympathy and love are the prisoners. The objects are intentional; they could be simultaneously perceived as helpless (sympathy) and desirable (love). Underpinning sympathy is a belief that the men are suffering and their suffering can be alleviated. The suffering possibly pertains to their confinement and lack of intimacy. Love is based on beliefs about the qualities of the object and the qualities of romantic relationships. On the evidence above, the relationships could be characterised by beliefs about care of the vulnerable and dependency. However, in relation to the possibility of Morel’s emotional needs, the most important aspect is the value attached to the intentional perception and belief characteristics. The value perceived in the prisoners and the relationship means that they were important for the role they played in the practitioner’s life. This value relates to the perception and thought of the object: the perception of the prisoners as helpless and thoughts based on beliefs of dependency. In terms of helplessness the value is the thought that she is the one that can alleviate the suffering by being the rescuer. In this account the value of those relationships could be to the practitioner’s ego because dependency implies power and this also relates to the object’s desirability. The dependency seemingly allows Morel to trust the person she is having a relationship with, a significant issue stated in the first quote above, also making them more desirable.

It appears that the ‘wrong story’ about love is being told. In Morel the potential unexamined reasons for love and misguided sympathy had a negative impact on Morel’s professional judgment leading to unethical behaviour. Emotional self-awareness in this example means the ability to evaluate the emotional narrative in order to better understand how emotion influences ethical judgment and choice. In the quotes above there is some evidence of the practitioner evaluating her own emotional narrative, but overall it could be concluded that she lacked emotional self-awareness and as a result both her personal and professional judgment was impaired leading to boundary violations. Morel identifies a large capacity for empathy as a reason for the boundary violations. Empathy is not a discrete emotion it is an emotional process which can manifest in any emotion.[74] Empathy involves understanding and evaluating the emotion and experience of another person through an affective connection. However there needs to be a balance between having a sufficient degree of empathy (engagement) and a sufficient degree of detachment (objectivity).[75] When there is too much objectivity empathy can be inhibited leading to a lack of understanding of the other person. When there is too much engagement boundary violations can occur.

The balance between engagement and detachment is necessary in order to prevent problems such as counter-transference. Counter-transference is a Freudian concept and means ‘unharnessed emotions – emotional responses gone awry... counter-transference may manifest itself in a variety of ways, as positive (love) or negative (hate).’[76] In the current context it means the misplaced emotions of a lawyer on a client[77] and occurs when there is an insufficient degree of detachment. Morel appears to be an example of counter-transference where too much empathic engagement manifested as love and led to boundary violations. Having emotional self-awareness enables a balance to be struck between engagement and detachment. Emotional self-awareness is the ability to recognise emotional responses and account for them in the lawyer/client relationship.[78] Emotional self-awareness is not only acknowledging feeling a certain way. Perception of feelings is important but emotional self-awareness is also about acknowledging traits, habits of thought and action, examining the beliefs that underpin emotion, and educating emotional capabilities.[79] This is why it is important to emphasise the emotional aspects of legal practice with students and to provide them with opportunities to consider their own emotional capabilities with respect to ethical judgment.

The seminar questions or discussion points that arise out of the material above include:

  1. Morel knew that she could not enter both professional and personal relationships with clients. What do you think her motivations were for entering these relationships?
  2. Apart from empathy, love is implied in Morel. What does the legal narrative reveal about the meaning of empathy and love in this situation?
  3. The psychiatric review reported that Morel ‘tended to act in the role of “rescuer” in relation to the prisoners.’ How are sympathy and love related in this case? What does this indicate about having empathy or sympathy for clients?
  4. A balance needs to be struck between empathic engagement and emotional detachment. Do you agree or disagree with this statement? Why / why not?
  5. What is emotional self-awareness? What does the case of Morel indicate about emotional self-awareness? Is emotional self-awareness related to personal and professional judgment?
  6. What are the implications when practitioners do not account for their emotion in ethical judgment?

These proposed seminar questions and discussion points are intended to elicit the relationship between appropriate emotional detachment and self-awareness, how emotion can affect the lawyer/client relationship, how emotion can be analysed and how emotion that is unaccounted for can lead to boundary violations. In participating in a seminar discussion students are engaging narrative intelligence and exposing the emotions within the narratives to analysis. Students would be required to read the case and unless students are required to read some of the theoretical material, academics would need to guide and participate in the discussion by providing background information or asking further questions.

Emotional self-awareness assists in striking the balance between empathic engagement and detached objectivity.[80] Legal education should therefore encourage and develop the capacity of empathy in students but also encourage students to develop appropriate detachment in order to avoid problems such as counter-transference. Analysing legal narratives such as Morel is one way to expose students to emotional analysis. This example shows that the capacity for narrative intelligence also requires a capacity for emotional self-awareness and with these capacities, people are more likely to approach and make judgments in a more rational and ethical manner. The content of this is teaching and learning strategy is consistent with the learning objective because the aim is to develop awareness and skills that equip students to understand the impact of emotions on ethical judgment. The danger however, is that this will reinforce attitudes that discount emotion leading to its repression or denial when making judgments. This is why it is important to emphasise the importance of emotional self-awareness. Appropriate emotional detachment does not simply mean acknowledging emotion and then attempting to exclude it from judgment. Appropriate emotional detachment requires emotional self-awareness and the ability to acknowledge, moderate and account for the negative and positive influences of emotion on judgment.

B Evidence and Criminal Procedure – using emotion persuasively and ethically

From 2014 the core subject Evidence and Criminal Procedure is embedding the ethics graduate attribute. Following is a proposed teaching and learning strategy that pertains to the ethics of using emotion persuasively and whether emotional judgments are morally justifiable. The subject learning objective that embeds the ethics attribute is:

Upon successful completion of this subject students should be able to:

The learning objective focuses on the roles of lawyers and this provides the opportunity to discuss the ethics of advocacy and how lawyers use emotion to influence juror decision- making. This learning objective is not explicit about the role of emotion in legal ethics however the subject matter is wide enough to incorporate that knowledge. For example, this subject allocates a seminar to privileged communications such as client legal privilege, the professional confidential relationships privilege and the sexual assault communications privilege.[81] In relation to the latter two privileges the subject matter involves the history leading up to the enactment of those privileges and the law itself. There is ample scope within that material relating to those two privileges to discuss legal ethical content and the related emotional content. One aspect of the emotional and ethical content is discussed below but this material also raises other ethical issues such as the moral character of lawyers and role-detachment.[82] The learning strategy proposed below has three purposes: to understand the evaluative properties of emotion, to understand how emotion is used persuasively and strategically by lawyers, and to consider whether the use of emotion is morally justifiable and ethically defensible. In doing so, students are engaging narrative intelligence by critically analysing and reflecting on the role of emotion in legal-ethical judgment through an aspect of how lawyers may enact their role in the administration of justice. Proposed seminar questions follow the discussion of the seminar content below.

Currently one of the prescribed readings for the seminar is an article by Mary Rose Liverani[83] explaining the circumstances and the reasons why law reform was needed in relation to the subpoenaing of sexual assault counsellors notes. Lawyers in New South Wales were subpoenaing the notes in order to gain information that could be used to undermine the credibility of sexual assault complainants. Liverani discusses how some lawyers subverted the rape shield laws prior to the sexual assault communications privilege. Rape shield laws disallow lawyers from adducing evidence of the sexual reputation of the complainant to discredit them.[84] In order to subvert these laws some lawyers started to subpoena counselling notes for the purpose of indirectly introducing evidence of the complainant’s moral character.[85] The purpose of this strategy was to discredit the credibility of the complainant and to affect juror judgment.[86] In relation to using emotion to affect juror judgment and decision-making, lawyers could use information from counselling notes to support stereotypes and encourage jurors to act on biases. For example, Liverani quotes research by the academics Annie Cossins and Ruth Pilkington[87] who found that jurors

were less likely to believe in a defendant’s guilt when the victim had reportedly engaged in sex outside marriage, drank or used drugs, or had been acquainted with the defendant – however briefly.[88]

This research was published in 1996 and whilst some stereotypes and myths pertaining to sexual assault complainants have been exposed, it remains that some people who could be jurors adhere to those stereotypes or, in the least, are biased by the suggestion that the moral character of the complainant is dubious. This is why some lawyers have wanted access to counselling notes because they contain information including ‘past sexual history, the existence of illegitimate children, drug, alcohol and psychiatric history’ and self-blame.[89] Lawyers could use this information to support stereotypes, to distort the factual nature of the sexual assault and to impeach the moral character of the complainant .[90] In doing so they created a narrative[91] and used the persuasive influence of emotion to direct the attention of jurors away from the moral obloquy of the defendant and toward impeaching the moral character of the complainant . If jurors think that the complainant has a dubious moral character they may sympathise with the accused and disdain the complainant. Emotions commonly attached to disdain are contempt and anger. For brevity only contempt will be considered here, also because it arises in the content and it promotes consideration of the ethical justifiability of using emotion persuasively.[92]

Contempt is related to anger and moral disgust.[93] Some theorists argue that contempt is a blend of these emotions whilst others argue that they are distinguishable from contempt.[94] Contempt involves a judgment about a moral or character defect in another person. As such contempt involves ‘looking down on someone and feeling morally superior’ and is ‘elicited by the perception that another person does not measure up’.[95] This can result in the object of contempt being treated with less respect and consideration or with derision or disregard.[96] Contempt is not always a negative emotion. The philosopher Michelle Mason argues in some situations contempt is understandable and morally justifiable. Mason prefers to refer to contempt as an attitude because of its quality as a form of regard which also involves an affective stance toward the other.[97] Feeling contempt involves perceiving and regarding the object as a person who ranks low in their worth because they fall short ‘of some legitimate interpersonal ideal’ and the affective quality is feeling pained in the presence of the object thus making the object a source of aversion.[98] According to Mason the conditions necessary for contempt’s proper focus and moral justifiability are:

  1. It is directed at a person or persons (objects) as a response to violations of a legitimate interpersonal ideal. The object does not have to commit a personal offense against the person; the offense can be based on a belief about a class of people.
  2. The violation stems from a morally evaluable character trait.
  3. The object can appropriately be held responsible for the expression of the character trait.
  4. There is a legitimate expectation or demand that the object can approximate the interpersonal ideal.
  5. The attitude toward the object emanates from an agent who does not possess a similar fault otherwise they are also contemptible.
  6. The agent is responsive to evidence that the object has repented or changed for the better thus being open to forgiveness or some other change in attitude. To be blind to that evidence would be a morally objectionable attitude.

All of the above conditions and justifications contain evaluations. Conditions 1-4[99] relate to the conditions necessary for the proper evaluative presentation of the object of contempt. Conditions 5 and 6[100] relate to the moral justifiability of contempt. The agent evaluates the object in relation to their actions, character traits and responsibility. In doing so the agent is also evaluating their standards, how the object does not meet them, and their beliefs toward the object and situation. To demonstrate the evaluative properties of contempt and its moral justifiability consider the following hypothetical.

The defendant (D) contends that they had consensual sexual intercourse with the complainant (C). A juror (J) thinks that D could have made an honest mistake about a belief in consent because C engaged D in conversation, was dressed provocatively, had allowed D to buy drinks, had been flirting with D, and accepted a lift home with D. Additionally, C did not scream or struggle during the alleged sexual assault. D’s lawyer has deliberately introduced this evidence with the aim of influencing the juror’s perception of C. As a result J feels contempt toward C.

In relation to Mason’s first point above, in order to ascertain whether there has been a violation of a legitimate interpersonal ideal it is necessary to examine the possible beliefs that underpin the interpersonal ideal and the perception of C. The beliefs that could arise are that C invited the advance or if C did not want to have sexual intercourse C would have objected by screaming or struggling. The evaluations involved in these beliefs lead J to conclude that C is either lying or D has a reasonable belief in consent. Contempt toward C is attached to these evaluations. Further evaluation of the beliefs underpinning the emotion could reveal that the beliefs are based on stereotypes or a biases and this would invalidate the contempt. This however, requires the honest appraisal of one’s beliefs. Without this kind of examination J considers that C has violated an ideal. The interpersonal ideal could be the thought that C is lying, or that C should not have invited the advance or that it was reasonable in the circumstances for D to believe there was consent. The interpersonal ideal could be based on misconceptions about sexual assault complainants and perhaps normative standards and perceptions related to the gender and the sexuality of the complainant. This calls into question the legitimacy of the ideal and the moral systems and norms that it is based on.

In relation to Mason’s second and third points, J considers the violation has stemmed from a morally evaluable character trait. This would be the beliefs that C invited the advance or if C did not want to have sexual intercourse C would have objected. This element depends on the personal morality and perspective of J and the acceptance or rejection of information which contradicts the beliefs above. If C is lying then C would appropriately be held responsible for the expression of the character trait. However, whether the other beliefs raise morally questionable traits and whether C should be held responsible is debatable. The above beliefs could be based on stereotypes and attitudes that blame the complainant. Similarly in relation to point four, J may consider that there is a legitimate expectation or demand that C can approximate the interpersonal ideal. That is, people shouldn’t flirt, accept drinks, dress provocatively, accept lifts home, and should communicate non-consent clearly, otherwise they are blurring boundaries. In those circumstances it is reasonable that D believed there was consent and this offends the interpersonal ideal. But again this ideal is problematic for the reasons above and because it adopts a moral standard that is not reflected in the law. For example in New South Wales, when determining whether consent was ‘freely and voluntarily’ given, submission or a lack of resistance does not constitute consent.[101] Moral standards do not have to be reflected in the law and people apply different norms and standards of behaviour depending on their moral and cultural perspectives. This is why some lawyers try to invoke negative emotions like contempt by reinforcing stereotypes in order to bias juror decision-making.

Whether the emotion is morally justifiable depends on Mason’s points five and six above. J could argue that the attitude toward the complainant is justifiable because they do not possess a similar fault. However, this depends on whether the evaluations J has made, based on their beliefs, are correct. If J’s evaluations are questionable or incorrect because their beliefs are biased or based on stereotypes, their attitude could be considered contemptible particularly if they are unwilling to change. J also needs to be responsive to evidence that the object of the emotion, in this example the complainant, has repented or changed for the better thus being open to forgiveness or some other change in attitude. To be blind to that evidence would be a morally objectionable attitude. In the hypothetical this will again depend on whether J gets the evaluation right and if wrong, is willing to accept that C does not need to repent or change. If J's evaluations are wrong it means that the contempt is not morally justifiable.

Following are some suggested seminar questions based on the above content the purpose of which is to elicit an analysis of contempt and the ethics of using emotion persuasively.

  1. What was the purpose of subpoenaing sexual assault counsellor notes?
  2. How was the information in the notes used?
  3. How might this information affect the way the jury perceives the complainant?
  4. Apply the six evaluations in Mason’s theory of contempt to the hypothetical (see above), to determine whether the juror’s attitude toward the complainant is proper and morally justifiable. Based on your analysis, do you think what D’s lawyer did by introducing the evidence was ethical? Why / why not? Is that situation different from using information in counselling notes? Why / why not?

Questions 1-3 require students to identify and contextualise the problem of using the information in counselling notes to induce emotions such as contempt in the jury. The analysis above demonstrates how an answer to question 4 could be addressed by applying Mason’s theory of contempt. In relation to question four Mason’s six evaluative points should be shown to students so that they can work through them in the class discussion. The purpose of these questions is to engage students in an analysis of contempt, to increase understanding of the evaluative nature of the emotion and its moral and ethical justifiability.

The idea for this teaching and learning strategy came from two student responses on an internet discussion board for this subject. In this subject students are actively encouraged to engage in discussion based on books[102] about the criminal trial process in Australia and documentaries, such as ‘The Staircase’ and ‘The Staircase 2: The Last Chance’. ‘The Staircase’ documents the trial of Michael Petersen who was charged and convicted for the murder of his wife in the United States. ‘The Staircase 2’ documents his appeal and his subsequent release from prison pending a new trial. Student A commented on ‘The Staircase’ and student B on ‘The Staircase 2’. The students recognised that emotion plays a role in the criminal justice system. Student A explicitly discussed emotion and its influence on juries but found it ‘interesting/alarming’ that emotion and human psychology has so much to do with jury decisions. Student B acknowledged that ‘lawyers play on the emotions of juries’ and it is ‘hard for juries to isolate their emotion.’ It is assumed that student B meant that jurors should not let emotion affect their decision-making. But ‘lawyers play on emotion’ precisely because it is difficult for people to be unaffected by emotion for better or worse. This is why it is important to educate students about the responsibility of doing so and how it can be done ethically. If students continue to think that law, legal actors and legal judgment are free from emotion they are not learning about the reality of human decision-making or ethical persuasion.

The content of this teaching and learning strategy is consistent with the subject learning objective because it focuses on the roles of lawyers in the administration of justice. By using a concrete example of how a lawyer can enact their role in the administration of justice, this activity requires students to critique the fulfilment of that role in the context of ethical behaviour. Additionally students are engaging narrative intelligence through a consideration of how lawyers control and construct narratives. This activity exposes students to the reality of advocacy and the tactics, including the use of emotion to influence juror decision-making, employed by lawyers. The purpose is to encourage students to evaluate the impacts of employing these tactics and the potential harm it can cause and also to encourage reflection on appropriate ethical boundaries.

IV CONCLUSION

This article has argued that emotional, moral and humanistic concerns are not inconsistent with legal thinking and ethical judgment.[103] Emotion is situated within legal analytic and problem solving structures utilised in exercising legal judgment, in particular narrative intelligence and the personal intelligences. This article focused on aspects of emotion within narrative intelligence because this is a relatively neglected area in legal education scholarship. Additionally, this article has sought to address the perceived omission in legal education to include the subjective and humanistic concerns involved in legal ethics. In relation to this problem the legal academic James Gray suggests that the process of legal education and legal academics’ attitude to legal education requires new ways of thinking.[104] It is for this reason that this article has sought to demonstrate that emotion can be implemented in legal ethics education by utilising the existing analytical framework of ‘thinking like a lawyer’.

The capacity of narrative intelligence involves the ability recognise and evaluate emotional preferences, perspectives, beliefs, values and dispositions because these factors influence judgment. Accordingly a component of narrative intelligence is the way people examine, evaluate and make sense of emotional experiences. Emotionally self-aware people subject their emotional narratives to analysis to examine and evaluate their experiences.[105] The legal narrative of Morel was used to demonstrate how an emotional narrative could be analysed. Elements of Solomon’s narrative theory of love was applied to show how a lack of emotional self-awareness led to boundary violations and unethical behaviour. Nussbaum’s theory on the evaluative properties of emotion was applied to better understand how Morel’s need to be a rescuer and her prioritisation of this need exposed habits and dispositions to think and act on love in certain ways which led to the ‘wrong story’ of love being told. Morel is an example of how a lack of emotional self-awareness impaired the practitioner’s personal and professional judgment. Self-awareness can be developed through acknowledging and evaluating personal emotional narratives and acknowledging how and when emotion is involved in broader narratives. Understanding emotion within these narratives can reveal what is important, what is valued and how emotion impacts on judgment.

Contempt was used to demonstrate how lawyers use emotion persuasively and to ascertain whether emotional judgments are morally justifiable. Contempt involves the perception that the object has violated an interpersonal ideal and the object is evaluated as having a morally evaluable character trait. Further, contempt involves evaluations about moral and personal standards, expectations and responsibility. The object of the teaching and learning strategy is for students to engage in a structured and thorough analysis of an emotion. This has three purposes: to understand the evaluative properties of emotion, to understand how emotion is used strategically by lawyers, and to consider whether the emotion is morally justifiable and ethically defensible.

The Liverani article used in the subject Evidence and Criminal Procedure is not explicit about emotion, nor are many of the other resources used in legal ethics education. However, this example demonstrates that academics can use existing materials and with further analysis reveal emotional content. Incorporating emotional knowledge within legal ethics education also requires willingness on the part of academics, to become more informed about the different ways in which emotion is involved in ethics and to incorporate knowledge from other disciplines. The teaching and learning strategies outlined in this article are not especially innovative in terms of class discussions however, the emotional content of those strategies enable students to think about legal ethics more broadly. It is argued that integrating emotion into learning how to ‘think like a lawyer’ will improve analytical skills, ethical judgment and better equip law students for the reality of making ethical judgments in legal practice.


* I would like to thank the referees for their comments and suggested improvements. I also thank Professor Anita Stuhmcke for providing feedback on earlier drafts.

1 There are six graduate attributes: (1) Legal Knowledge; (2) Ethics and Professional Responsibility; (3) Critical analysis and evaluation; (4) Research skills; (5) Communication and collaboration; (6) Self-management. The attributes have been formulated to accord with the six Teaching and Learning Outcomes endorsed by the Council of Australian Law Deans in March 2012.

[2] See Robert C Solomon (ed), Thinking About Feeling: Contemporary Philosophers on Emotions (Oxford University Press, 2003).

[3] See Magda Arnold, Emotion and Personality (Columbia University Press, 1960); Nico Frijda, The Emotions (Cambridge University Press, 1986); Richard S Lazarus, ‘Cognition and Motivation in Emotion’ (1991) 46 American Psychologist 362.

[4] See Antonio Damasio, Descartes’ Error: Emotion, Reason and the Human Brain (1994); Antonio Damasio, ‘William James and the Modern Neurobiology of Emotion’ in Dylan Evans and Pierre Cruse (eds), Emotion, Evolution, and Rationality (Oxford University Press, 2004); Antoine Bechara, Hanna Damasio and Antonio Damasio, ‘Emotion, Decision Making and the Orbital Cortex’ (2000) 10 (3) Cerebral Cortex 295; Antoine Bechara, ‘The Role of Emotion in Decision-Making: Evidence From Neurological Patients with Orbitofrontal Damage’ (2004) 55 Brain and Cognition 30.

[5] See for example Kathryn Abrams and Hila Keren, ‘Who’s Afraid of Law and Emotions?’ (2010) 94 Minnesota Law Review 1997; Susan Bandes (ed), The Passions of Law, (New York University Press, 1999); Terry A Maroney, ‘Law and Emotion: A Proposed Taxonomy of an Emerging Field’ (2006) Law and Human Behaviour 119; Eric A Posner, ‘Law and Emotion’ June (2001) Georgetown Law Journal 1; Erin Ryan, ‘The Discourse Beneath: Emotional Epistemology in Legal Deliberation and Negotiation’ (2005) 10 Harvard Negotiation Law Review 231.

[6] See for example Paul Maharg and Caroline Maughan (eds), Affect and Legal Education: Emotion in Learning and Teaching the Law (Ashgate, 2011); Andrew H Benjamin et al, ‘The Role of Legal Education in Producing Psychological Distress Among Law Students and Lawyers’ (1986) 11 (2) American Bar Foundation Research Journal 225; Laurel Fletcher and Harvey M Weinstein, ‘When Students Lose Perspective: Clinical Supervision and the Management of Empathy’ (2002-2003) 9 Clinical Law Review 135; Kristen B Gerdy, ‘Clients, Empathy, and Compassion: Introducing First Year Students to the Heart of Lawyering’ (2008-2009) 87 Nebraska Law Review 1; Gerald F Hess, ‘Heads and Hearts: The Teaching and Learning Environment in Law School (2002) 52 Journal of Legal Education 75; Ann Juergens, ‘Practicing What We Teach: The Importance of Emotion and Community Connection in Law Work and Law Teaching’ (2004-2005) 11 Clinical Law Review 413; Lawrence S Krieger, ‘The Inseparability of Professionalism and Personal Satisfaction: Perspectives on Values, Integrity and Happiness’ (2004-2005) 11 Clinical Law Review 425; Alan Lerner, ‘Using our Brains: What Cognitive Science and Social Psychology Teach us About Teaching Law Students to Make Ethical, Professionally Responsible, Choices’ (2004) 23 Quinnipiac Law Review 643.

[7] Abrams and Keren, above n 5, 2033.

[8] Peter Goodrich, ‘Law in the Courts of Love: Andreas Capellanus and the Judgments of Love’ (1996) 48 (3) Stanford Law Review 633, 674.

[9] Ibid 675.

[10] Ysaiah Ross, Ethics in Law: Lawyers’ Responsibility and Accountability in Australia (Lexis Nexis Butterworths, 2005) 29. See also Dennis Turner, ‘Infusing Ethical, Moral, and Religious Values into a Law School Curriculum: A Modest Proposal’ (1998-1999) 24 (2) University of Dayton Law Review 283, 286; Caroline Maughan, ‘Why Study Emotion?’ in Maharg and Maughan, above n 6, 22-23.

[11] See Larry O Natt Gantt, ‘Deconstructing Thinking Like a Lawyer: Analysing the Cognitive Components of the Analytical Mind’ (2006-2007) 29 Campbell Law Review 413; Alexander Scherr, ‘Lawyers and Decisions: A Model of Practical Judgment’ (2002) 47 Villanova Law Review 161.

[12] Gerald B Wetlaufer, ‘Rhetoric and Its Denial in Legal Discourse’ (1990) 76 Virginia Law Review 1545, 1577. See also Hess, above n 6; Note, ‘Making Docile Lawyers: An Essay on the Pacification of Law Students’ (1997-1998) 111 Harvard Law Review 2027; Kennon M Sheldon and Lawrence S Krieger, ‘Does Legal Education Have Undermining Effects on Law Students? Evaluating Changes in Motivation, Values, and Well-Being’ (2004) 22 Behavioral Sciences and the Law 261.

[13] Fiona Cownie, ‘Alternative Values in Legal Education’ (2003) 6 (2) Legal Ethics 159, 159.

[14] Gerdy above n 6, 30.

[15] Ibid. See also Robert Granfield and Thomas Koenig, ‘“It’s Hard to be a Human Being and a Lawyer”: Young Attorneys and the Confrontation with Ethical Ambiguity in Legal Practice’ (2002-2003) 105 West Virginia Law Review 495, 519-521. The authors conducted empirical research with law graduates and found that legal ethics courses ignored humanistic and contextual issues, reduced cases to their technical merits, and reduced ethics to compliance with professional standards of conduct.

[16] ANU Law School Reform Committee, ‘Breaking the Frozen Sea: The case for reforming legal education at the Australian National University’ (Law School Reform ANU Law Students Society, 2010).

[17] Ibid x.

[18] Ibid v.

[19] Ibid 4.

[20] Ibid 30.

[21] John E Montgomery, ‘Incorporating Emotional Intelligence Concepts into Legal Education: Strengthening the Professionalism of Law Students’ (2007-2008) 39 University of Toledo Law Review 323, 323.

[22] See for example Paul J Cain, ‘A First Step Toward Introducing Emotional Intelligence into the Law School Curriculum: The “Emotional Intelligence and the Clinic Student” Class’ [2003] LegEdRev 2; (2003-2004) 14 Legal Education Review 1; Fletcher and Weinstein, above n 6; Marjorie A Silver, ‘Emotional Intelligence and Legal Education’ (1999) 5 (4) Psychology, Public Policy and Law 1173; Marjorie A Silver, ‘Love, Hate, and Other Emotional Interference in the Lawyer/Client Relationship’ (1999-2000) 6 Clinical Law Review 259; Barry Sullivan and Ellen S Podger, ‘Respect, Responsibility, and The Virtue of Introspection: An Essay on Professionalism in the Law School Environment’ (2001) 15 Notre Dame Journal of Law, Ethics & Public Policy 117.

[23] Gantt, above n 11.

[24] Scherr, above n 11, 229.

[25] Angela Olivia Burton, ‘Cultivating Ethical, Socially Responsible Lawyer Judgment: Introducing the Multiple Lawyering Intelligences Paradigm into the Clinical Setting’ (2004-2005) 11 Clinical Law Review 15, 15.

[26] Ibid.

[27] Ibid 25.

[28] Ibid 27. General characteristics of this form of intelligence include ‘sensitivity to the spoken and written word’ and ‘the ability to use language pragmatically’.

[29] Ibid 29. ‘Categorisation occurs when we order or classify concepts, people, things or events on the basis of significant generalisations or on patterns of difference and similarity.’ Cognitive psychologists see this and stereotyping as an essential way to process information and assign meaning

[30] Ibid 33. Here legal educators typically emphasise inductive, deductive, and analogical reasoning.

[31] Ibid 38-41. Intrapersonal and Interpersonal. These intelligences shape our understanding of ourselves and others and relate to sensitivity to issues of personality, motivation, belief, values and emotion.

[32] Ibid 42. Lawyers use this when they imagine and generate alternative plans and choose the most effective course of action

[33] Ibid 34.

[34] Ibid 37.

[35] Scherr, above n 11, 231.

[36] Ibid 232.

[37] Lorie M Graham and Stephen M McJohn, ‘Cognition, Law, Stories’ (2009) 10 (1) Minnesota Journal of Law, Science & Technology 255, 282.

[38] Ibid 258.

[39] David A Rettinger and Reid Hastie, ‘Comprehension and Decision Making’ in Sandra L Schneider and James Shanteau (eds), Emerging Perspectives on Judgment and Decision Research (Cambridge University Press, 2003) 175.

[40] Burton, above n 25, 37.

[41] Graham and McJohn, above n 37, 283.

[42] Scherr, above n 11, 233.

[43] Ibid 237.

[44] Ibid. For a detailed account of love and ethics see Martha C Nussbaum, Upheavals of Thought: The Intelligence of Emotions (Cambridge University Press, 2001).

[45] Leslie Paul Thiele, The Heart of Judgment: Practical Wisdom, Neuroscience, and Narrative (Cambridge University Press, 2006) 183.

[46] Ibid 15.

[47] Martha C Nussbaum, ‘Narrative Emotions: Beckett’s Genealogy of Love’ (1988) 98 (2) Ethics 225, 236.

[48] See Nussbaum, above n 44; Jerome Neu, A Tear is an Intellectual Thing: The Meanings of Emotion (Oxford University Press, 2000); Robert Solomon, ‘Emotions and Choice’ in Amelie Rorty (ed), Explaining Emotions (University of California Press, 1980).

[49] John Deigh, ‘Primitive Emotions’ in Solomon, above n 2, 10.

[50] Martha C Nussbaum, ‘Emotions as Judgments of Value and Importance’ in Solomon, above n 2, 27-31.

[51] Cheshire Calhoun, ‘Subjectivity and Emotion’ in Solomon, above n 2, 116.

[52] Nussbaum, above n 44, 372.

[53] The qualification on completing PLT is a Graduate Certificate in Legal Practice. The format of this subject is a one hour lecture and a two hour seminar each week for twelve weeks.

[54] The format of this subject is a three hour seminar each week for twelve weeks.

[55] [2004] SASC 168; (2004) 88 SASR 541 (hereinafter Morel).

[56] For example, the emotions of criminal lawyers have been considered in the context of resentment / forgiveness, outrage, pain, revulsion and joy. See David M Lerman, ‘Forgiveness in the Criminal Justice System: If It Belongs, Then Why Is It So Hard To Find?’ (1999-2000) 27 Fordham Urban Law Journal 1663; Derek A Denckla, ‘Forgiveness as a Problem-Solving Tool in the Courts: A Brief Response to the Panel on Forgiveness in Criminal Law’ (1999-2000) 27 Fordham Urban Law Journal 1613; Abbe Smith, ‘Too Much Heart and Not Enough Heat: The Short Life and Fractured Ego of Empathic, Heroic Public Defender’ (2003-2004) 37 Davis Law Review 1203; Susan Bandes, ‘Repression and Denial in Criminal Lawyering’ (2006) 9 (2) Buffalo Law Review 339; Abbe Smith and William Montross, ‘The Calling of Criminal Defense’ (1998-1999) 50 Mercer Law Review 443.

[57] [2009] WASC 39.

[58] [2008] VSCA 43.

[59] Legal Practitioners Board v Morel [2004] SASC 168 [33]-[34].

[60] Nussbaum, above n 47, 236.

[61] Nussbaum, above n 44, 473.

[62] Robert C Solomon, ‘The Passions: Philosophy and the Intelligence of Emotions’ Lecture Series Part One, The Teaching Company Limited Partnership, 2006, 14. http://www.teachersyndicate.com/documents/oct_2010/TTC%20Guidebooks/Passions%20-%20Philosophy%20and%20the%20Intelligence%20of%20Emotions.pdf (21/02/2011); see also Nussbaum, above n 47, 236.

[63] Solomon, above n 62.

[64] Robert C Solomon, About Love: Reinventing Romance for Our Times (Hackett Publishing Company, 2006) 156.

[65] Ibid 157. Solomon uses the example of a woman falling in love with married men.

[66] Legal Practitioners Board v Morel [2004] SASC 168 [22].

[67] Solomon, above n 64, 157.

[68] Legal Practitioners Board v Morel [2004] SASC 168 [41].

[69] Jonathan Haidt, ‘The Moral Emotions’ in Richard J Davidson, Klaus R Schere and H Hill Goldsmith, Handbook of Affective Sciences (Oxford University Press, 2002) 861.

[70] See Lauren Wispe, ‘The Distinction Between Sympathy and Empathy: To Call Forth a Concept, A Word is Needed’ (1986) 50 (2) Journal of Personality and Social Psychology 314, 314; Douglas Chismar, ‘Empathy and Sympathy: The important difference’ (1988) 22 The Journal of Value Inquiry 257; Julien Deonna, ‘The Structure of Empathy’ (2007) 4 (1) Journal of Moral Philosophy 99.

[71] Nussbaum, above n 44, 27-31.

[72] Ibid 30 (fn 21). Nussbaum explains that as a subclass of value judgment emotions ‘pertain to objects that figure in the person’s own scheme of goals and projects – and, in central cases, to objects that are seen as not fully controlled by the person. There will therefore be other value judgments that won’t involve emotion.’

[73] Calhoun, above n 51, 116.

[74] June Price Tangney, Jeff Stuewig and Debra J Mashek, ‘Moral Emotions and Moral Behaviour’ (2007) 58 Annual Review of Psychology 345, 362; Rand J Gruen and Gerald Mendelsohn, ‘Emotional Responses to Affective Displays in Others: The Distinction between Empathy and Sympathy’ (1986) 51(3) Journal of Personality and Social Psychology 609, 609.

[75] Nigel Duncan, ‘Addressing Emotions in Preparing Ethical Lawyers’ in Maharg and Maughan, above n 6, 268.

[76] Silver, ‘Love, Hate, and Other Emotional Interference in the Lawyer/Client Relationship’, above n 22, 271.

[77] Ibid 270. See also Susan Daicoff, ‘Law as a Healing Profession: The Comprehensive Law Movement’ (2006) 6 Pepperdine Dispute Resolution Law Journal 1.

[78] Silver, ‘Love, Hate, and Other Emotional Interference in the Lawyer/Client Relationship’, above n 22, 276.

[79] Peter Goldie, The Emotions: A Philosophical Exploration (Oxford University Press, 2000) 118. See also Amelie Oksenberg Rorty, ‘Explaining Emotions’ (1978) 75 (3) The Journal of Philosophy 139.

[80] Duncan, above n 75, 268.

[81] The format of this subject is a ninety minute lecture and a ninety minute seminar each week for twelve weeks.

[82] For a discussion of these issues see Donald Nicholson and Julian S Webb, Professional Legal Ethics: Critical Interrogations (Oxford University Press, 1999) 160-181.

[83] Mary Rose Liverani, ‘Confidential Communications: Support for new subpoena law and bouquets for the Attorney General from sexual assault lobby’ (1998) 36 (3) Law Society Journal 42.

[84] Criminal Procedure Act 1986 (NSW), s 293.

[85] Liverani, above n 83, 44.

[86] Ibid.

[87] Annie Cossins and Ruth Pilkinton, ‘Balancing the Scales: The case for the Inadmissibility of Counselling Records in Sexual Assault Trials’ [1996] UNSWLawJl 13; (1996) 19 University of New South Wales Law Journal 222.

[88] Liverani, above n 83, 44.

[89] Ibid.

[90] Ibid.

[91] For an examination of the sociolinguistic characteristics of storytelling in court, and how storytelling is managed and organized by lawyers see Diana Eades, ‘Telling and retelling your story in court: Questions, assumptions, and intercultural implications’ (Paper presented at Cultures and the Law, Australasian Institute of Judicial Administration, 25th Annual Conference, Melbourne, Sunday 14 October 2007). See also Diana Eades, Sociolinguistics and the Legal Process (Multilingual Matters, 2010) 42-46.

[92] For the defining features and moral justifiability of anger see Gabriele Taylor, ‘Justifying the Emotions’ (1975) 84 (1) Mind 390; Aristotle, Rhetoric, Book II Part 1, translated by W Rhys Roberts (The Internet Classics Archive) http://classics.mit.edu/Aristotle/rhetoric.2.ii.html (28/01/2014).

[93] As a basic emotion disgust relates to revulsion of contaminates in the environment and as a moral emotion it contains a judgment about the degrading behaviour of another person.

[94] For empirical research on the differentials of anger, disgust and contempt, and a review of the psychological literature see Cendri A Hutcherson and James J Gross, ‘The Moral Emotions: A Social-Functionalist Account of Anger, Disgust and Contempt’ (2011) 100 (4) Journal of Personality and Social Psychology 719.

[95] Haidt, above n 69, 858. See also Kate Abramson, ‘A Sentimentalist’s Defense of Contempt, Shame and Disdain’ in Peter Goldie (ed), The Oxford Handbook of Philosophy of Emotion (Oxford University Press, 2010).

[96] Haidt, above n 69, 858.

[97] Michelle Mason, ‘Contempt as a Moral Attitude’ (2003) 113 (2) Ethics 234, 239.

[98] Ibid 241; see also Macalister Bell, Hard Feelings: The Moral Psychology of Contempt (Oxford University Press, 2013) 57.

[99] Mason, above n 97, 250.

[100] Ibid 253.

[101] Crimes Act 1900 (NSW), s 61HA (7).

[102] For example Helen Garner, Joe Cinque’s Consolation (Pan Macmillan, 2004); John Bryson, Evil Angels (Penguin, 1986); Malcolm Knox, Secrets of a Jury Room (Random House, 2005); Paul Sheehan, Girls Like You (Pan Macmillan, 2006).

[103] Cownie, above n 13, 159; Andrew Boon, ‘Ethics in Legal Education and Training: Four Reports, Three Jurisdictions and a Prospectus’ (2002) 5 (1 & 2) Legal Ethics 34; Karen Barton and Fiona Westwood, ‘Developing Professional Character – Trust, Values and Learning’ in Maharg and Maughan, above n 6, 235-256; Duncan, above n 75, 257-282.

[104] James Gray, ‘Thawing out the Law School: Why we need legal education theory’ (2012) 37 (3) Alternative Law Journal 171, 174. See also Michael Coper, ‘Legal Knowledge, The Responsibility of Lawyers, and the Task of Law Schools’ (2007-2008) 39 University of Toledo Law Review 251.

[105] Silver, ‘Love, Hate, and Other Emotional Interference in the Lawyer/Client Relationship’ above n 22, 274-275. See also Michael Lacewing, ‘Emotional Self-Awareness and Ethical Deliberation’ (2005) 18 (1) Ratio 65.


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