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Real Lesson Of Cambridge Moment Is Injustice Of Misapplied Empathy

August 12, 2009

 IBD            31 Jul 09

President Obama has said he intends to appoint Supreme Court justices and, it can be assumed, other federal judges, who bring a sense of “empathy” to the bench.

This emphasis on “empathy” (“the experiencing as one’s own, the feelings of another”) for many lawyers is the antithesis of blind justice that is the hallmark of the U.S. judicial system.

However, for others who have not been exposed to the real world of tort litigation, whether it involves a malpractice lawsuit against a doctor, or a product liability case against an auto manufacturer, the question often asked is why empathy is a bad thing when striving for justice?

And what would an empathetic judge look like when evaluating disputes? If you were watching the president’s July 22 nationally televised press conference, an empathetic judge — in the person of the president himself — was on display for everyone to see and evaluate.

In answer to a question, President Obama said he was not aware of all the facts involving the arrest of Professor Gates for disorderly conduct at his home near Harvard University. But then, notwithstanding this factual vacuum, he proceeded to indict the Cambridge police department by stating that he thought they had acted “stupidly” in arresting Gates.

Given the facts that have surfaced since the president’s press conference that appear to exonerate the Cambridge police department from any wrongdoing, and Obama’s statements at a hastily called follow-up press conference last Friday, we can conclude that he made judgments about culpability that were premature and intemperate.

It’s unfortunate that the president let his own empathy cloud his judgment, especially since he has taken an oath to uphold the Constitution that affords all citizens “equal protection of the laws” and “due process” rights whether an African-American professor or a white policeman.

We are missing the real “teachable moment,” however, if we limit the potentially destructive effect of the misapplication of “empathy” as demonstrated in this incident to race relations.

Empathy is important if you are a social worker, a pastor or a rabbi. And it has many forms — gender empathy, ethnic empathy, victim empathy, poverty empathy, etc.

On the other hand, what I took away from my legal education at the University of Notre Dame, a law school that clearly emphasizes moral imperatives in life, was that a lawyer should never conflate emotions (empathy) with the facts or law when reaching a legal conclusion so as to tip the scales toward one party or another.

It made a mess of the Cambridge police/ Professor Gates dispute and has no place in balancing the rights of litigants.

While public pressure caused the president to reconsider his rush to judgment and to temper his earlier “stupidly” characterization, that is not the norm in the litigation arena unless you are fortunate enough to convince an appellate court to reverse a pro-plaintiff trial court judge.

Every day in our tort system “empathetic” judges make decisions based on emotions or other non-relevant considerations that ultimately result in higher prices for just about every product and service in this country, including medical care.

This problem is stimulated and exacerbated by trial attorneys who do their utmost to help such plaintiff-oriented judges, through campaign contributions and other support, to get on the bench so that hopefully they will do just what they shouldn’t under our blind justice system — bend over backwards for plaintiffs in meritless cases.

The practical implication of the role of empathetic judges and their trial-attorney enablers to the current defensive medicine/medical liability debate couldn’t be more relevant and important.

Malpractice insurers and other deep-pocket defendants know full well that “empathetic” pro-plaintiff judges can make the difference in a frivolous case between winning and losing at trial or by driving up the settlement value with millions of dollars at stake.

And hopefully after the Cambridge lesson, the administration will also drop “empathy” from the list of judicial criteria for the selection of federal judges.

• Ball is former general counsel of American Suzuki Motor Corp. and a former member of the McCain-Palin civil justice reform advisory committee

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