Key Points
- Empathy is more than feeling—it can involve thinking about and understanding others’ thoughts and emotions
- Lawyers can better serve clients and support colleagues by knowing when to exercise different types of empathy, including emotional, cognitive, and stoic empathy
- Different practice and workplace situations will call for lawyers to balance both emotional awareness and analytical thought
- In an increasingly AI-driven world, lawyers can use empathy to distinguish themselves and enhance their relationships
When you hear the word empathy, does feeling or thinking come to mind?
If you are like most people, you associate empathy with feeling. I recently learned, however, that there are multiple types of empathy, and that knowing when to exercise each type can help lawyers better serve clients and support colleagues.
Emotional vs. cognitive empathy
If you attended the Commission’s recent Future Is Now: Legal Services conference, you heard Shermin Kruse and Dr. Larry Richard discuss empathy.
Emotional empathy is what comes to mind for most people when exploring the concept of empathy. This is feeling or experiencing another person’s emotions.
A second, and perhaps less commonly recognized type of empathy, is cognitive empathy. This is thinking about and understanding another person’s thoughts and emotions.
Dr. Richard, an expert on the psychology of lawyer behavior and founder of LawyerBrain, has studied the personalities of thousands of lawyers and found that we tend to score lower on the cognitive empathy scale than the general population.
In her book “Stoic Empathy: The Road Map to Influence, Leadership, and Integrity,” Kruse, who is also a law professor at Northwestern Pritzker School of Law, wrote, “empathy can and typically does include a mix of both cognitive and emotional components—it’s hardly ever an entirely binary choice. In any scenario, the choice of how much cognitive versus emotional empathy is appropriate depends on the specific needs of the situation.” [i]
(While this piece focuses on emotional and cognitive empathy, it is important to note that there are other types of empathy, including strategic empathy, compassionate empathy, and stoic empathy.)
When should lawyers exercise empathy?
As lawyers, we use empathy to build trust and better understand our clients, so we can develop a legal strategy that will achieve the best results. However, while some situations require that lawyers lean into emotion, others may benefit from a more analytical approach.
Here are some ways lawyers can use emotional and cognitive empathy in their practices.
1. Matters involving trauma or loss
When listening to a client describe a traumatic experience or loss, both emotional and cognitive empathy are essential. Initially, exercising emotional empathy will enable you to be emotionally present with the client. It will help you feel the emotional weight of their experience and respond in a way that demonstrates humanity.
But it is important to then consciously shift to cognitive empathy, setting aside your feelings. This will enable you to avoid becoming overwhelmed by emotion and help you assess your client’s perspective and the legal strategies that will be most impactful.
In an article on personal injury victims’ evaluations of their lawyers, which was published in the journal Psychological Injury and Law, the authors concluded that “the need for empathy could change during claims settlement,” as “some participants indicated that they needed their lawyer to be empathic at the beginning of the claims settlement, whereas later on in the process they were ready for more business-like communications.” [ii]
Indeed, one study participant said that “he really appreciated the fact that his lawyer acknowledged his feelings but at the same time took care not to lose himself in feelings of injustice against the insurance company.”
2. Disputes with colleagues
If you are having a heated disagreement with a colleague over origination credit, staffing of a matter, or a project leadership role, cognitive empathy can help you better understand your colleague’s perspective and reactions.
While this will not guarantee a mutually agreeable resolution, trying to understand your colleague’s emotions will enable you to more constructively assess what your colleague wants and why they want it.
It will also help you avoid emotional tripwires when communicating your position, thereby maximizing the likelihood of achieving your objectives. (These same principles can be employed in contentious discussions with opposing parties and counsel, helping you better understand the emotions animating the opposing party’s position.)
3. Colleagues facing personal challenges
When a colleague discloses that they or a family member are facing a significant health condition, before raising the HR or personnel implications of the situation, use emotional empathy to first try to feel what your colleague might be experiencing.
Allowing yourself to feel the emotions of fear, overwhelm, or sorrow will help you provide the emotional support or solace that is essential to bolstering their well-being. Moreover, engaging with colleagues in this way fosters a sense of belonging that is essential to employee retention and morale.
While empathy may not come naturally to some, it is more important that lawyers exercise it than ever. This is especially true as we move into an era that is increasingly being driven by remote environments and AI communications.
Perhaps empathy is a superpower lawyers can use to set themselves apart.
[i] Kruse, Shermin, Stoic Empathy: The Road Map to a Life of Influence, Self-Leadership, and Integrity, p. 37 (Hay House/Penguin Random House, 2025).
[ii] Elbers NA, van Wees KA, Akkermans AJ, Cuijpers P, Bruinvels DJ. Exploring Lawyer-Client Interaction: A Qualitative Study of Positive Lawyer Characteristics. Psychol Inj Law. 2012 Mar;5(1):89-94, 92. doi: 10.1007/s12207-012-9120-0. Epub 2012 May 8. PMID: 22866183; PMCID: PMC3407555.
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