Hastings Law Journal

Article Title

Empathy and Approval


Stephen Ellmann


Professor Ellmann's Essay suggests that the positive judgment latent in empathy need not remain so veiled. On the contrary, clients often need, and lawyers should be able to offer, a more wholehearted confirmation of client feelings-a positive judgment and endorsement, of part or all of the client's world view, that he calls approvaL The functions of such explicit approval are somewhat different from, and potentially inconsistent with, those of empathy. Lawyers can effectively make use of both these techniques, but they are not interchangeable, and a recognition of the potential value of approval not only adds a technique to lawyers' repertoire but also requires lawyers to consider the difficult tradeoffs between these two powerful forms of client communication. In Part I of the Essay he analyzes the functions that approval can serve. Part II examines the tradeoffs its use may entail, and the ways that this technique can, and should be, integrated into sound client-centered lawyering.

Professor Ellmann's object in this Essay is not to dislodge empathy from its central role in client-centered practice, but rather to resurrect approval as another legitimate element in such lawyering. He argues that approval can be a valuable lawyering technique; he suggests that despite its lack of prominence in accounts of client-centered practice, lawyers will find it is a technique they have been using all along. But if approval is indeed a valuable lawyering tool, then lawyers must recognize it as such and begin to focus on the values and pitfalls in its use. Professor Ellmann has sought to show in this Essay that a wise and effective use of approval is possible, and hopes to contribute to the recognition and study of this lawyering technique in order to enable us to realize its potential.

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