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The business case for kindness in law

A kinder approach to the practice of law doesn’t mean trading commercial objectives for empathy. As a group of lawyers (together with industry backers) is advocating, a “paradigm shift” is needed.

user iconLawyers Weekly 14 September 2023 SME Law
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A movement about more than just being kind

The “kindness in law” movement, Balance Family Law co-founder and senior lawyer Jonathon Naef says, is a multifaceted one.

Mr Naef – who is a founding member and treasurer of The Kind Lawyers (TKL), as well as an adjunct lecturer at the College of Law – says it is about reflecting on the way lawyers practice and the effects actions have on all of those who may be affected – one’s self, the other lawyer, your client, their client, and any affected third parties.


“Kind lawyering is not about ‘playing nice’ all the time, or constantly making concessions in the pursuit of looking like the nice guy. You should still zealously advocate for your client; kindness is not synonymous with weakness,” he explains.

“Instead, think: ‘You catch more flies with honey than vinegar’. You can still raise all the points you want in [correspondence]. However, the way those points are phrased can have a massive difference in the progression of the matter and, ultimately, how soon the matter can be resolved.”

“In a recent mediation, an experienced barrister complemented this approach, noting that the matter could have gone down a different path if we had not written in such a kind and considered matter,” he recalls.

Even something as simple as noting in an affidavit that you are aware of the impact the evidence presented may have on the other party can impact the progress of the matter, Mr Naef continues.

“Kindness, in this context, can also be strategically advantageous – the other side might end up liking you better than their own lawyer,” he says.

Unfortunately, Mr Naef reflects, TKL feels that kindness is innovative in that reflective practices remain relatively new, and even with the increased focus on lawyers’ wellbeing in the last two decades, “we have not seen great change from how things have always been done”.

“In our view, adopting a kinder way of practising will be better for the health and wellbeing of the profession – it may lead to less burnout, as lawyers are not tired of constantly dealing with overly aggressive practitioners. It will also allow us to be more collegiate and collaborative with our fellow lawyers and, overall, assist in maintaining and improving the reputation of the legal profession,” he argues.

Fellow co-founder of Balance Family Law and director Perpetua Kish suggests that lawyers don’t necessarily set out to be deliberately unkind but instead immerse themselves in the technical complexities of cases, overlooking emotional and human dimensions.

“A kinder approach becomes not just a strategy, but a paradigm shift,” proclaims Ms Kish, who is also the chair and a founding member of TKL.

“It encourages lawyers to reconnect with our own need for empathy and understanding, which in turn enables us to better comprehend our clients and serve their interests.”

Adopting a kinder approach to legal practice “doesn’t entail a trade-off between empathy, practicality and commerciality; it combines them”, Ms Kish says.

“It benefits clients by offering emotional support and genuine understanding, but it also works to improve the reputation of the profession as one that is perceived as ethical, empathetic, and effective,” she says.

Benefits of a kinder approach

The inaugural Kindness in Law Forum was hosted last Friday (8 September) in Canberra, with the College of Law (COL) serving as a platinum sponsor for the event.

In conversation with Lawyers Weekly, COL ACT executive director Deborah Battisson outlines that the College shares TKL’s commitment to promoting kindness and positivity in the profession and that its partnership aligns with its own core ambition of leveraging innovation to drive continual improvement in legal service delivery.

Kindness as a movement, Ms Battisson lists, “connects in with many elements of lawyering”, including conflict, community, self, and diversity and inclusion.

Starting out in the law can be tough, she notes.

“With our perfectionist tendencies, we place huge expectations on ourselves to nail everything, and get it perfect the first time, even when we don’t have a lot of experience or guidance. Doubting our own abilities and feeling like a fraud is common among new lawyers. Kindness can go a long way to help new lawyers build confidence and manage this tricky time in their careers,” she says.

The benefits of adopting a kinder approach to how we mentor, support, and guide our new lawyers are diverse and far-reaching, Ms Battisson goes on.

“These benefits include the personal (wellbeing, happiness, self-esteem, empathy, and compassion), the professional (rewarding and enduring careers), the commercial (enhanced productivity and profitability and greater returns on training investments) and the community (contributing to a more sustainable profession),” she says.

On the commercial front, she says, showing kindness to new lawyers can help the bottom line in at least two ways.

“First, legal employers invest time and money in training and mentoring new lawyers. If new lawyers leave soon after completing their initial training due to a lack of kindness, support and nurturing, employers lose out on the returns of that training investment,” Ms Battisson posits.

“Second, new lawyers who feel confident and competent and supported are way more likely to be productive, hit the ground running and thrive in their new-found autonomy.”

Lawyers who adopt a kinder approach, Ms Kish says in support, “understand that clients carry emotional burdens and fears alongside their legal issues and when they acknowledge this ‘human element’, they are more likely to create an atmosphere of understanding that goes beyond the transactional aspects of legal services”.

Practical steps towards kindness

Ms Battisson details five ways that practitioners can be kinder (particularly to younger/junior lawyers):

  1. Encouragement: “When new lawyers hesitate to take on a new and challenging task due to a fear of failure or making a mistake, reassure them: ‘You’re not dumb; you’re new’ and ‘I will help you’. Encourage question asking – there is no such thing as a dumb question!”
  2. Support: “Be available to provide guidance and feedback. A scarcity mindset is when we believe resources are limited and causes us to focus on short-term coping instead of long-term problem solving.”
  3. Inclusion: “Identify opportunities for new lawyers to observe, learn and build experience and confidence.”
  4. Value: “Leverage their skills, such as in tech and generative AI, as they will be up to speed on the latest tech and can help you and your practice.”
  5. Role modelling: “Encourage lawyers to maintain interests outside of the law. Encourage lawyers to go home when they can (and not stay late for the sake of perception and satisfying assumed expectations).”
Taking proposed steps like these into account, Ms Kish suggests, it is slowly but surely becoming clearer that the kindness movement is not just about being outwardly courteous.

“It necessitates deep introspection and a commitment to self-improvement from everyone, whether you’re a new lawyer or have 30-plus years under your belt,” she says.

“Constructive transformation requires all lawyers to embrace humility, question assumptions, and actively seek opportunities for growth.”

The path forward involves not only advocating for kindness externally but also fostering it within one’s self, Ms Kish advises.

“By acknowledging the impact of behaviours on conflict escalation, recognising the power of humility, and consistently pursuing knowledge, lawyers can contribute to the movement’s momentum and shape a legal landscape that truly embodies the values it advocates,” she says.

Dangers of not adopting a kinder approach

COL, Ms Battisson, proclaims, plays a “pivotal role” in assisting lawyers shape enduring careers in the law.

“Our graduates, many of whom are Gen Z lawyers, and the profession more broadly are increasingly conscious of the benefits of aligning personal values – including kindness and work/life balance – with career objectives,” she says.

The pandemic has accelerated this more reflective and protective approach to building sustainable and enjoyable legal careers, she notes, arguing that new lawyers are seeking workplace cultures that value self-care, wellbeing, kindness, empathy, compassion, and mental health.

“Anecdotal evidence suggests there is a shortage of lawyers with two- to five-year experience. The market for legal talent is, therefore, tight. Employers who do not adopt kinder modes of developing and training staff, and creating collaborative and supportive cultures, may struggle to attract new lawyers to their workplaces,” Ms Battisson warns.

“Lawyers are often portrayed as sharks, cut-throat, dollar drivers, and even evil! We need to reshape these perceptions to attract and retain the brightest to the legal profession.”

Kindness, she submits, is a platform to help to achieve this.

Optimism moving forward, and progress still needed

If Flourish Family Law principal Kirsty Salvestro – another TKL co-director and founding member – had been asked, even just a few years ago, about whether she thinks the profession has the capacity to move towards kinder modes of practice, her answer would have been unequivocal: “not a chance, such change is not possible”.

With more than two decades under her belt as a practitioner, she explains, her perception has been that are entrenched in behaviours that are aggressive, harsh, and highly critical, especially of each other and even of themselves.

“Receiving criticism of your work, facing rejection of your approaches, even enduring snide or negative remarks about your performance, even in front of clients – all are part of this familiar landscape. Can we transition towards kinder practices? This notion seems far-fetched, right?” Ms Salvestro says.

However, the formation of TKL, and the hosting of its conference, has helped Ms Salvestro to “see the light at the end of the tunnel”.

As she puts it: her world, outlook, and practice have “completely changed”.

“Our goal when organising this conference was to spread the word on kindness in law, advocating for a gentler, calmer approach to practising and working in law. This is where I have found my renewed optimism and enthusiasm that we can make a difference, and we can change the way we practise,” she says.

On the question of how far the profession still must go, the path ahead “remains one of continuous effort and evolution”, concludes Ms Kish.

“The task of reshaping deeply rooted practices and cultural norms is a nuanced and gradual process. Achieving a profound integration of wellbeing and kindness into what it means to be a lawyer requires a sustained commitment,” she says.

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