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Developing Empathy Through Observation and Imagination

This LPS post is by Kevin Coker, a 3L student at Vanderbilt Law School.



NOTE: Names have been changed in this post to protect the privacy of individuals involved.

In Chapter 7 of The Design of Business, Roger Martin lists the following as key tools of design thinkers: observation, imagination, and configuration. Of these three tools, observation and imagination are two that I believe will be the most valuable to my professional development and overall career as a litigator. Being able to understand the circumstances of a case and the thoughts of the client, witnesses, jurors, and judge, is an extremely valuable tool. This understanding is best achieved through detailed observation which requires a lot of time and patience. By focusing on observation and imagination, I will be able to develop a level of empathy and understanding that will make me a better advocate for others.

Last summer, I was able to work on a self-defense case involving the shooting death of a former police officer. After my first week of work, my supervising partner told me to google “James Anderson.” He said, “He’s coming to the office today and you’re going to meet him.” Since the case involved an attempted “stand your ground” defense, one year after George Zimmerman’s acquittal in the shooting and killing Trayvon Martin, there was a decent amount of media attention floating the web. Talk about a time you need empathy. I had never met someone whom I knew was undeniably involved in the death of another person, let alone had a duty to help with their legal representation.


Out of nervousness and fear of not knowing what to say, I frantically googled everything I could. Though he was in his mid 30s at the time of the incident, the photos of him looked nearly 10 years younger. I read through a few articles and jotted down some notes when the partner called me into his office. When I walked in, I saw the partner sitting behind his desk and James standing in front of him wearing a t-shirt, shorts and sneakers. Although he was about to be on trial for murder, I had a heavy heart when I saw him. I cannot explain it, but he looked innocent. The partner introduced us and told him I would be working with them through the duration of the trial. I still did not know the exact circumstances of the incident, but I knew that I would need to be empathetic in my approach to learning about it.

The best litigators know the details of their cases very well. They know the holes in both sides’ arguments and have an understanding of who their client is and how to fix their problem. This is only possible through observation. Litigators achieve this by having face-to-face client meetings, depositions of witnesses, phone calls, and other personal interactions. Time constraints sometimes limit the ability to achieve in-depth observation and investigation, and we did not have much time.

Over the next few weeks, we did trial prep. James had been out on bond since 2014, the year the incident occurred, and since then, his attorneys had been in and out of court doing motion hearings, interviews and discovery. In addition to getting caught up on the case and performing legal research and writing, I wanted to get to know James and hear his side of the story. He found it easy to relate to me since we were not far in age, and our conversations felt more relaxed than a regular attorney-client relationship. He not only detailed the events of that night and how it made him feel, but we talked about our families, our upbringings, and how we both go to the point where we were at that moment. He had no criminal history, was a flower deliver at the time of the incident, and was focused on creating the best life for his son and daughter. If the facts of the case were not compelling, I figured his personal background would be.


While continuing to develop empathy, my imagination helped to reinforce my observations. In my conversations with James, he forced me to think of the situation as if I were in his shoes. He would often qualify statements with, “you know when…” or “you know how…” and although I did not share all of his experiences, I tried very hard to understand them for myself and for his reassurance. At the end of the day, he was the client and his perspective had to be valued. And more importantly, his perspective needed to be valued by the jury.

Roger Martin draws a connection between iteration and imagination. In litigation, this often manifests itself during trial prep and how an attorney develops their trial strategy. It is important for attorneys to make inferences after their observations. These inferences help develop your theory of the case, which you want the jury to adopt. A litigator’s initial theory is usually not their final one. Developing a strong theory requires analyzing and reanalyzing the different facts, stories and evidence. One way litigators use iteration is through mock trials. By testing their theory and arguments on a random, diverse group of people, litigators can receive feedback from a sample population that is representative of an actual jury. And this exactly what we did.

We did not have James participate in the mock trial, but we did present the facts, opening arguments, and some of the evidence we expected to come out at trial. We wanted to see how people would imagine his story based on our theory of the case, the evidence we gave them, and their own life experiences. One of the main things we learned was that we needed to change the opening statement to focus more on the events of that night rather than the conflicting testimony from the prosecution’s witnesses. The mock jury also informed us that they would need to hear James testify if it was the actual trial. This was something we were on the fence about, but after this iterative process, we knew that it would be necessary.

Luckily, we did not get to the point where James would need to testify. After opening statements and one and a half days of trial, the prosecution offered a plea deal to drop the murder charges. Even though we believed our client was completely innocent, we had to take a client-centered approach to the decision. At the end of the day, we had to empathize with James and understand what he wanted. After hearing the pros and cons, James decided to take the plea and receive probation on a weapons charge (even though he had a license to carry). Through observation and imagination, I was able to empathize with James and I believe the prosecution empathized with him as well. Either that, or they just realized they had a terrible case. Although design-thinking was not an explicit part in our litigation process, we applied various mindsets which led to a successful outcome.

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