Art Samuels

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I worked at Legal Outreach this past summer


Final Essay

Back in October, we wrote empathic arguments about an issue of importance to us. My friend Jordan and I had just engaged in a series of discussions—at times, heated arguments—about the pro-Bono requirement at Harvard, and so I decided to write about that. Attempting to channel the arguments that I thought Jordan would make, I wrote a 1500 word essay explaining why it was unfair for Harvard to make law students complete forty hours of pro-bono work in order to graduate. I could not help but smile to myself when Professor Nesson asked me “who are you trying to convince.” I knew exactly who I was trying to convince—I was trying to convince me.

This was an appropriate beginning to Jordan and my project, as the fact that we both knew our “opponent”—indeed, the opponents are good friends—played a large role in the direction the project took, in the subjects that we covered, and in the final product that emerged. From watching presentations by other students, I gather that our project is very different from most of the others. I think that these differences make our project a success and a failure at the same time.

Unlike most of the projects, ours is not a concerted piece of advocacy, at least not transparently so. While the other projects focus (sometimes quite ingeniously) on advocating for innovations such as a required elementary school speech class or a relaxation of liquor sales laws, it is not entirely clear what our project is arguing for. We initially conceived of it as the two of us advocating to each other our respective sides of the pro bono issue—Jordan for dropping the requirement, I for maintaining it or increasing it—but as we talked more, we found the conversation moving away from the question of pro bono and more towards an attempt to find common ground with each other and understand why the argument got so heated in the first place.

Thus, as a piece of advocacy, our podcast fails. They do not enjoin the listener to take up any cause or contribute to any movement. They do not ask the listener to do anything at all. In fact, someone listening to them without knowing the background of their origin would be hard pressed to determine exactly what it is that Jordan and I are advocating for.

The podcast has this quality for a few reasons. First, because we are such close friends, it was harder for us to envision a straw “opponent” against whom we were set. Even if the goal of most people’s projects is empathic persuasion, it was persuasion nonetheless. The purpose of the projects seems to be not to persuade my opponent to join my side, but rather to enlist an anonymous group of “undecideds” that my issue is worth fighting for. I do this by demonstrating that I understand the other side’s issue, that I am not unreasonable, but in the end, my side is more persuasive. This was a hard task for Jordan and me, because “the other guy” was there to answer the objections. Each of us knew and had great respect for our opponent in this debate. Thus, it became hard to imagine what he might say and formulate an empathic, but persuasive, response.

The other reason our podcast does not have this quality was because our project originated with a different goal in mind. Jordan and I did not have a clear argument we wanted to make. Rather, we hoped that by exploring the issue that had divided us and attempting to empathize with each other, we would arrive at…something. Most other projects appear to have known exactly where they wanted to wind up—having convinced several other people of their point of view. Jordan and I simply wanted to go on a journey.

This uncertainty is reflected in our podcast. The discussion is at times halting and unsure. On numerous occasions, Jordan and I felt that we had better conversations and a more productive dialogue when we were “off-mic.” Our discussions at the computer led to more substantive discussion over dinner or a beer. These are not persuasive arguments—they are closer to therapy sessions.

But at the same time, I feel like our project was a success. During the course of our conversations, Jordan and I truly came to understand the other person’s perspective, and we reconciled our differences. As he comments in his write-up, we realized that we both felt alienated from the law school in a way, and we each identified the other person with those forces at the law school that we felt oppressed by. It is ironic that two friends who felt put upon by and alienated from the law school would chose to take out their frustration not on the oppressive institution, but on each other instead. Realizing that irony enabled us to move past it and salvage our friendship. If this had been a traditional persuasive forum, I do not think we would have been able to accomplish this.

This brings me to a larger thought about empathy. I do not know if this is what Professor Nesson intended, but right now, empathy still seems like a tactic, a trick. A lawyer who projects empathy with the other side appears reasonable and likable to a jury, who in turn finds for her client. It is not that the attorney actually accepts the position of the other side; rather, she just makes the jury believe that she has.

The podcast that Jordan and I put together, however, seems to be an example of genuine empathy. It is not just that Jordan and I can understand where the other person was coming from—we truly came to feel what the other person felt. This, however, did not lead to persuasion, but rather to compromise. Jordan and I discovered similarities that allowed us to reconcile our positions.

I do not believe this was the intended goal of the project, but I think it was worthwhile nevertheless. What emerged was an exercise in genuine empathy. The public value that our project has is not as a persuasive tool for a particular viewpoint, but as a documentation of the journey to empathy. We have talked much about empathy this semester, but almost never seen it in action. I think our podcasts provides a success story in this respect.

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One final note—the lingering problem with our project is how to get others interested. As the class pointed out in the feedback session, people tune in to watch a fight, not a love-fest. If Jordan and I had video of our initial argument, that would have been a good lead-in, but such video does not exist.

I do not know the answer to this question. Staging a fight seems crude, and I doubt that a short lead-in to the podcast will have much of an effect. I also think that the conflict we end up talking about has little to do with our original argument. Rather, this podcast is probably appealing to those who feel alienated from the law school—who feel somehow oppressed or misled by this place. I regret that we have not come up with an effective way to reach these people.