Professor Harold Lloyd publishes ‘Cognitive Emotion and the Law’ paper on SSRN, featured on Law360

Photo of Professor Harold Lloyd

Professor Harold Lloyd published his paper, “Cognitive Emotion and the Law,” on the Social Science Research Network on Aug. 1, 2016.   The paper, which discusses the integral role of cognitive emotion in law and legal analysis, was featured in the Law360 article, “Law Schools Should Be Teaching Emotional IQ, Paper Says,” published by Melissa Maleske on Aug. 3, 2016.  Maleske’s article follows.

The practice of law is often treated as a science in which logic rules and emotion has no place, but an academic paper posits that the profession has it all wrong. According to the author, emotion not only has a place in the law, it’s something that law firms and law schools would benefit from embracing.

In his paper “Cognitive Emotion and the Law,” which was originally published Monday in the Social Science Research Network, Wake Forest University School of Law professor Harold Anthony Lloyd says the legal profession is lagging behind modern neuroscience when it comes to understanding the utility — and necessity — of human emotion.

“The law tends to be insular and we often don’t look at developments and advancements in other areas, and this is something I’ve been fighting against in other things I’ve written,” Lloyd told Law360. “In emotion theory, a lot of psychologists and philosophers now recognize that emotion is cognitive — that we use it to evaluate and understand the world. And I think the law is behind on that, so I’m trying to address it.”

Researchers studying the frontal cortex have concluded that humans are not rational beings derailed by emotion; rather, emotion and reason are codependent, and we can’t make decisions unless emotion is there to arouse us out of a state of inertia. “We cannot make rational and voluntary choices that do not involve our preferences and thus do not involve emotions or other affective states,” Lloyd writes. They can also tell us about ourselves and the world around us — something that can serve lawyers well in understanding clients, issues and audiences, Lloyd says.

What does it all mean for lawyers? For one thing, Lloyd believes the bar’s disproportionate rates of mental illness and substance abuse can be partly traced to a lack of emotional intelligence — the failure to learn to distinguish between emotions and understand what emotions are appropriate. And that, he says, is underscored by law schools, which tend to frame the law as pure reason or science.

“Law firms should really be concerned about the mental health of people there,” Lloyd said. “We lawyers tend to look at ourselves as rational machines, and that’s dangerous. … A lot of people see lawyers and law itself like a machine: You input this data and turn the cranks and the right answer pops out. And that’s not the way lawyers and law function, because people don’t function that way.”

Understanding emotion can also help law firms better understand and serve their clients. Lawyers are in the business of representing the real interests of clients, Lloyd says, and those interests are driven by emotion. And it might end up that a client interest just isn’t worth the costs. The burden of protracted litigation may be too much for the client, and recognizing that also means understanding emotion.

Understanding emotions can also help lawyers become better persuaders. A big part of that is pathos, or appealing to emotion and how to sway people, in Lloyd’s view. And that requires parsing and understanding the various emotions. A plaintiffs attorney who wants to make a judge and jury feel anger for the injustice served on his or her client needs to understand what anger requires, what it provokes, the desires that are commonly associated with it.

Accordingly, Lloyd’s paper includes an appendix with some of the emotions lawyers commonly encounter — anger, fear, frustration, pity, pride and shame among them — and notes on how they tend to arise. The prototypical object of anger is “anyone or anything perceived as an agent subject to moral judgment,” for example, and its prototypical desire is to punish that object.

Lloyd also says new understanding of cognition and emotion should also lead law schools to rethink their curriculum. The case method is based on the discredited notion that law is a science, and it’s not a good approach, Lloyd says, to teach students to use appellate cases to conjure up a rule “like a scientist in a laboratory.” Lloyd hopes that as law schools evolve, they take this into consideration.

“I think legal education is now undergoing reform, and I’m excited to see that,” Lloyd said. “It’s going to take a long time but it’s happening. We’re seeing more practice-based forces going into legal education, but as a part of that reform we can’t forget the humanities we need to put in there too, like the emotions I’m talking about here.”