Making practice more affective:  Emotional intelligence as a legal meta-competency

Emma Jones

Making practice more affective: Emotional intelligence as a legal meta-competency

Author: Emma Jones*

Abstract

This paper examines the emergent interest in the affective domain that has become evident both within facets of legal education and amongst the legal profession. It argues that emotional intelligence is an important meta-competency which encompasses a range of emotional competencies that are crucial for entry into, and success within, the legal profession. Acknowledging the importance of emotional intelligence, unpacking the abilities and traits it encompasses, and using it as the beginning of a more nuanced, detailed examination of emotional competencies will successfully integrate the affective domain into lawyering in a way which is both professionally and personally beneficial. Therefore, emotional intelligence should be included as an integral part of both legal education and training and also continued professional development for solicitors, barristers and other legal professionals.

1. Introduction

The final report of the Legal Education and Training Review (“LETR”) identified aspects of the affective domain as “critical to professional practice” (2013, para. 4.83). [1] Although not defined within the report, this domain is commonly viewed as comprising of emotions, moods, attitudes and preferences (Boekaerts, 2007; Schutz et al., 2006). In its earlier briefing paper (2012) the LETR had already identified emotion as a dimension that was missing from the current frameworks regulating legal practice in England and Wales. In contrast, the suggested list of professional competencies in its final report included emotional intelligence as one of the key components relating to the affective domain (LETR, 2013, table 4.3). [2] This was with the caveat that such non-cognitive elements may not be amenable to formal assessment (LETR, 2013, para. 4.140).

This emergent interest in the affective domain generally, and emotion in particular, is perhaps unsurprising given the overall popularity of emotional intelligence as a concept. A simple internet search provides a plethora of advice, guidance and measures relating to emotional intelligence, often quoting variants of the well-used line that it “can be as powerful, and at times more powerful, than IQ” (Goleman, 1996, p.34). There has also been longstanding interest in it as a tool for enhancing the performance and wellbeing of law students and legal professionals within the United States (US) (Kelton, 2015, Montgomery, 2008; Silver, 1999). Building on this, the LETR’s recognition of its role within legal practice seemed to provide a strong endorsement of the importance of emotional intelligence within legal practice.

However, for the LETR to simply list emotional intelligence as a legal competency in this way leaves a range of questions unanswered. Definitions of emotional intelligence vary significantly and the differing models available have each provoked vast amounts of academic debate, with Roberts et al suggesting that a number of them are “little more than laundry lists of desirable personal qualities” (2010, p.140). Despite the US interest referred to above, there is also only relatively limited literature available on the idea of its use as legal competency (most of which is very specifically US-focused). This arguably reflects the traditional attitude of the law to the topic of emotion as a whole, viewing it as, at best, irrational and, at worst, dangerous (Grossi, 2015; Maroney, 2006). Such an attitude has led to the role of emotion (and emotional intelligence) remaining largely unexplored in relation to both legal education and legal practice within England and Wales (Maharg and Maughan, 2011).

Outside of the LETR’s formal recognition of a role for emotional intelligence within legal practice, acknowledgment of its potential importance has also arguably been mixed. There have been a number of more informal indicators of its growing importance within England and Wales. This includes features in several trade publications and blogs (see, for example, Haywood, 2015), a report of it being used by a large city firm to ward off potential competition from robots (Aldridge, 2016) and a workshop in emotional intelligence being offered by The Law Society in England and Wales (2016). However, despite this interest, it is noticeable that the Solicitors Regulatory Authority (SRA) does not refer explicitly to the affective domain or emotional intelligence within its competence statement for solicitors (SRA, 2015). Similarly, it is not overtly referred to within the Bar Standards Board’s (BSB) Professional Statement which describes the knowledge, skills and attributes required from barristers from day one (BSB, 2015). Although it is worth noting that empathy (which forms a key part of some models of emotional intelligence) is explicitly referred to (BSB, 2015; Boyatzis et al, 2000).

This paper will begin by exploring the definitions and accompanying models of emotional intelligence that can be utilized within a legal competency framework and the potential benefits of acknowledging one or more of these. It will also consider some of the key benefits and challenges to the use of emotional intelligence in this way. It will then move on to consider specific ways in which emotional intelligence could be incorporated into both the academic and vocational stages of legal education, as well as into legal practice as a whole. At its heart is the argument that emotional intelligence is a meta-competency, in other words, the term encompasses a range of key affective competencies which are key to legal practice. Affect, particularly emotion, is an inescapable, but traditionally rarely acknowledged, part of the work of the legal profession. Using emotional intelligence as a way of acknowledging this and developing an understanding of the competencies required in this area will provide an explicit and more transparent framework for the incorporation and development of such competencies within legal education and training and also legal practice itself. However,in order to do this effectively the construct of emotional intelligence requires further research and unpacking to ensure that individual emotional competencies are fully understood and utilised.

2. What is emotional intelligence?

Although there was work done on social intelligence from the early twentieth century onwards (see, for example, Thorndike and Stein, 1937), it was not until the publication of Howard Gardner’s theory of multiple intelligences in the 1980s that the idea an individual could possess a range of different intelligences became more widely acknowledged (Gardener, 1983). This challenged the conventional definition, largely attributed to Spearman, of intelligence as “g”, a single, general, unitary faculty (Spearman, 1904). Such a view of intelligence commonly perceives it to be biological, inherited and largely unchangeable and forms the basis of IQ tests (Howe, 1997; Mackintosh, 1988). Gardener challenged this definition of intelligence by identifying seven different intelligences (subsequently increased to eight, with potential for existential intelligence to also be added) (Gardener 1999; Gardener, 1983). The forerunner of emotional intelligence can arguably be seen in his discussion of the “personal intelligences”, which consists of “intrapersonal” and “interpersonal” intelligences (Gardener, 1983, p.237). Significantly, Gardner also argues that such intelligences are not static, but can be strengthened and developed (Gardener, 2006, p.85).

Despite this earlier discussion, it was in 1990 that the term emotional intelligence first came to wider academic attention, through a paper by Salovey and Mayer (1990). Their definition has been refined and amended since its initial exposition, but can be summarised as follows:-

“We define El as the capacity to reason about emotions, and of emotions to enhance thinking. It includes the abilities to accurately perceive emotions, to access and generate emotions so as to assist thought, to understand emotions and emotional knowledge, and to reflectively regulate emotions so as to promote emotional and intellectual growth.” (Mayer et al, 2004, p.197)

The model that has developed based on this definition is one which is commonly referred to as an ability-based model (Mayer et al, 2016). [3] It identifies four key, inter-related emotional skills. Firstly, the ability to perceive or identify emotions; secondly, the ability to use emotions as a facilitator to influence and assist thought processes; thirdly, the ability to understand and analyse emotions and, fourth and finally, the ability to manage emotions in a way which assists reasoning and is appropriate in the context (Mayer et al, 2004; Caruso and Salovey, 2004). Mayer and Salovey suggest that other models appear “to have confused what we thought of as expressions of EI with the ability itself” (Mayer et al, 2008, p.504).

An example of how this model could apply to legal practice, adapted from a business management example given in Caruso and Salovey (2004, pp.xi-xii) is as follows: You are one of a team of solicitors preparing for a meeting with a large commercial client where you will advise it on a potential claim against a competitor. The client is keen to add several new particulars to your draft claim form. You feel these are fairly minor amendments and the team quickly agrees to them. However, when about move on, you suddenly have a fleeting feeling that something is not quite right. Although you only pause very briefly, the remainder of the team pick up on this and seem more attentive and serious. A junior solicitor raises a point about a possible inconsistency in the particulars, which has been discussed previously, but which now leads to others in the team raising similar concerns. You encourage this detailed analysis and it becomes clear that the amendments could potentially have a significant impact on the strength of the claim.

Although this may seem a fairly commonplace event, each of the four emotional skills is represented in it. By pausing before moving on you had identified a specific emotion and acted on it. You recognised that something was not right (perhaps because of emotional cues being given by other members of the team). This pause then led to both you and your team focusing on the issue in a more analytical and searching way – using the emotion you felt to influence and assist your thought processes. You discerned that the change in the attitude of the team was due to a potential issue, thus understanding and interpreting the emotion that was present. Finally, you did not ignore the emotion and move on, instead you gave your team time to uncover the issue by integrating emotion into, and managing, your response in a way which may well prove beneficial to both the team and your client. This scenario demonstrates that:

“A focus on emotion does not make you weak or vulnerable; instead, it allows you to be much more able to face up to, and successfully cope with, conflict and change.” (Caruso and Salovey, 2004, p.xiii)

The positive potential of emotional intelligence is also emphasised by the other models which are available. The second model of emotional intelligence, that which has captured the popular imagination, was proposed by Goleman (1996). This is commonly referred to as a trait-based model, as it draws on a much wider range of abilities and traits. For example, Goleman himself has equated it with both “character” (1995, p.285) and “maturity (1998, p.7). This has evolved from Goleman’s original suggestion of five clusters of competencies into four clusters – self-awareness, self-management (which includes motivation), social awareness (which includes empathy) and relationship management (Goleman, 2004; Boyatzis et al, 2000, p.355; Boyatzis, 2009). The twenty competencies contained in these clusters are wide-ranging, from “organizational awareness” to “trustworthiness” and “conscientiousness” (Hess and Bacigalupo, 2012, p.713; Boyatzis et al, 2000, p.355). This model has been heavily critiqued in scientific circles, for example, Matthews et al argue that, in essence, Goleman has labelled everything which is not accounted for by IQ as emotional intelligence (2002, p.5). They also argue that this appeals to, and reinforces, negative stereotypes of people with high IQ as “nerds lacking elementary social skills” (2002: 5). Gardner too has commented on Goleman’s formulation of emotional intelligence, suggesting that competencies such as empathy are outside the realm of intelligence and in the realms of “values and social policies” (1999, p.69).

Whilst there has been significant criticism of this model within academia, it has had significant influence within the business sector, with a wide range of “self-help manuals” being produced to encourage its incorporation into commercial practices (see, for example, Mersino, 2007 and Cherniss and Goleman, 2001) and reports that emotional intelligence is routinely assessed as part of the admissions procedures of various US business schools (Austin and Durr, 2016, p.388). Work on emotional intelligence and the legal profession in the US has also drawn on this model with Douglas arguing that it is the “most readily accessible model for EI in law” because of its focus on competencies that can be developed. (2015, p.56). However, she argues that all models share a focus on learned skills, rather than seeing emotional intelligence as innate and unchangeable (Douglas, 2015: 62).

An apparent third model of emotional intelligence is that originated by Bar-On. However. Matthews et al (2002, p.16) suggest it has little content as its focus is largely on an instrument for its measurement (the Emotional Quotient or “EQ-i” test). Bar-On describes emotional intelligence as:

“An array of interrelated emotional and social competencies, skills and behaviors that determine how well we understand and express ourselves, understand others and relate with them, and cope with daily demands, challenges and pressures.” (Bar-On, 2013, un-numbered)

Mayer et al characterize both this and Goleman’s model (together with other, less well-known variants) as examples of a “mixed model” due to their inclusion of both abilities and personality traits with an arguable “mixing in of related and unrelated attributes” (2008, p. 504; 2000, p.402). They argue that, in contrast, their model “operates in a region defined by emotion and cognition” (2000, p.403). Matthews et al support this, suggesting that other models tend to give the impression of “little scientific worth….merely jumping on the EI bandwagon (2002, p.20). Unsurprisingly, this is disputed, with Goleman arguing that Salovey and Mayer’s categorisation relies on an overly-narrow conception of intelligence (2004, p.20-21). It is arguably this schism in the field (Mayer et al, 2008, p.504) which has intensified the criticism of emotional intelligence and led to its dismissal by critics as “invalid” with “no intelligible meaning” (Locke, 2005, p.425; see also Waterhouse, 2006a and 2006b). However, in their meta-analysis, Van Rooy et al (2005, p.457) suggest that both concepts may have validity in different settings, for example, they suggest that the ability model may be best suited to employee development programmes because it focuses more on cognitive abilities which can be more easily evolved than personality traits. There is certainly still strong support for emotional intelligence amongst some areas of the scientific community, with Brackett et al arguing (in relation to the ability model) that:

Although research in this field is in its incipient stages, what we have learned thus far is promising: emotional intelligence can be measured objectively, it predicts important life outcomes, and it appears that the skills that comprise the construct can be learned.(Brackett et al, 2012, p.99; see also Ashkanasay and Daus, 2005)

3. Benefits of emotional intelligence

Despite the theoretical debates and schisms in the field, a recent meta-analysis of various types of emotional intelligence indicated that each form (ability and trait) did add value in terms of predicting job performance (O’Boyle et al, 2011, pp.807-808). This is illustrated well by an empirical study of 44 analysts and clerical employees at a US insurance company conducted by Lopes et al which found that the ability model of emotional intelligence was associated with “important positive work outcomes”, including company ranking (2006, p.137; see also Brackett et al, 2012, p.99 and Ashkanasay and Daus, 2005). Dana et al suggest that there is something of a “paradox” in that the trait model is theoretically underdeveloped, but in fact has been found to have stronger predictive validity in terms of workplace performance (in this case, defined as a supervisor’s rating of an employee’s behaviour), because it in fact draws on both ability-based emotional intelligence and a range of other traits and competencies (2012, p.299; see also Joseph and Newman, 2010, p.69).

Specifically in relation to legal practice, a number of commentators argue that incorporating a model of emotional intelligence potentially has significant benefits. Douglas suggests that:

“Emotional intelligence provides a conceptual framework from which to give space to the reality of human emotional experience. It is a framework that is developed, relevant and practice-oriented.” (Douglas, 2015, p.67)

The US literature, which largely applies Goleman’s model, broadly divides the benefits of emotional intelligence into two categories (Austin and Durr, 2016, p.387). Firstly, in relation to its potential to improve performance in the workplace (Douglas, 2015 and Martin, 2014) and, secondly, with regard to its potential for improving the wellbeing of lawyers (Martin, 2014; Daicoff, 2012). Although there is also some recognition of its role in relation to self-reflection too (Douglas, 2015, pp.63-64). In terms of improving performance, the most easily identifiable benefits appear to be those relating to standards of client care in legal practice. Both the SRA and BSB identify this as crucial, for example, the SRA’s competence statement requires solicitors to “establish and maintain effective and professional relationships with clients” and also “other people” (2015, C2 and C3). The BSB’s statement refers to the need to “Respond appropriately to those from diverse backgrounds and to the needs and sensitivities created by individual circumstances” (2015: 3.3). Bermingham and Hodgson found, in an earlier survey of recruitment literature by solicitors’ firms, that social compatibility with clients ranked 6^th out of 11 desirable attributes, empathy ranked 7th and social compatibility with colleagues ranked 8^th (2001, p.20; see also LETR, 2013, para. 4.84). More recently, a report by Peppermint Technology found that the quality and promptness of customer service is becoming increasingly important to law firm private clients (2014, p.12).

There is arguably an element of emotion present in any interaction between a legal professional and client. Barkai and Fine (in the context of empathy) refer to this, suggesting that clients will visit a lawyer when they “feel” they have been wrongly or unfairly treated and have a legal issue, rather than when they “think” they do (1983, p.509). In some cases, the subject-matter of a client’s issue may be inherently emotional, for example, in relation to family law where significant life events such as divorce are involved (Melville and Laing, 2010, p.287). However, even in less obvious emotional scenarios, such as a corporate transaction or construction dispute, there is still emotion involved. For the client, the very act of consulting a legal professional will involve an affective response, be it worry about the outcome or embarrassment that some form of error or oversight has created this situation (Barkai and Fine, 1983, p.509).

Although an often unacknowledged role, it is part of the legal professional’s job to understand, interpret and manage the emotion that is present in their interactions with clients to ensure they understand the client’s position and effectively represent them. In other words, to employ the emotional competencies involved in emotional intelligence (Douglas, 2015; Kelton, 2015; Blatt, 2015). Whether this is calming an upset divorcee, reassuring the disgruntled business owner or simply putting someone at their ease, building the form of rapport generated by the application of emotional intelligence is key (see, for example, Binder et al (2004, p.57) discussing the role of empathy in “active listening” when interviewing clients). Kelton illustrates this well by giving the example of a two lawyers, who act for mental health professionals, meeting a new client for the first time. One lawyer, Amanda, greets the client with a handshake, but appears not to notice his hand is shaking slightly, as she is busy texting another client. When the more senior lawyer, Rick, arrives she moves to sit outside the client’s view. Rick then provides a monologue relating to the claim, glancing at his watch before leaving abruptly. Amanda shows the client out but fails to notice his sharp intake of breath in response to the suggestion that she will be in touch by email (Kelton, 2015, p.461-462). It seems almost common sense that this is not an effective way to manage a client interview, but underlying this is the need for emotional competencies in the everyday life of practice.

Although emotional competencies are key to client care, they are also relevant in other, wider ways. Team work is another area of competency highlighted by both the SRA (2015, C3) and BSB (2015, 3.2) as fundamental to legal practice. In many ways, the same skills that underlie a successful relationship between a client and legal professional are also relevant within collaborative activities. Maughan and Webb, in their guide to legal skills, suggest that “Newly formed groups will create effective working relationships if each individual is sensitive to the feelings of the other groups members and recognises that anything he says or does will have an effect on everybody else” (205, p.93). Similarly, Hanson refers to the need for “competent inter-personal skills” to ensure the success of the project (2010, p.339).

Related to this is the approach and attitudes which legal professionals bring to their interactions with the opposing party or parties in contentious issues. Daicoff argues (in the US context) that lawyers lacking in emotional competencies will tend to “fill in the blanks” in their practice by behaving in an overtly adversarial manner and demonstrating “hostility, sarcasm, anger, criticism, threats, belittling, and other hostile behavior towards opposing counsel” (2012, p.834). A number of other commentators have also linked the perpetuation of adversarialism in law to traditional notions of “thinking like a lawyer” which focus on a narrow, analytical form of legal reasoning whilst attempting to disregard or suppress any form of emotion or any link to personal qualities and values (James, 2011, p.227; James, 2008, p.92; Sturm and Guinier, 2007, p.534).

This form of legal thought does a disservice to law by prizing a perceived form of rationality in a way which denies the impact of affect, particularly emotion, on reason. It is also contrary to the weight of contemporary scientific evidence which suggests that, in fact, it is impossible for emotion and reason to be separated and attempts to do so are likely to lead to “emotion that is undisciplined, unexamined, and unowned, as well as thinking that is hard and shallow” (Harris and Schultz, 1993, p.1779; see also Bandes and Blumenthal, 2012: 163-4; Damasio, 2006). James argues that:

“It is irrational to critique emotions for being irrational, because emotions do not eschew cognitive influence. It is only the 'hijacked' eruption of intense emotion that is irrational in that sense. It is also irrational to try to deny emotional input in our decisions, as all decisions involve both cognitive and emotional influence. It would seem wiser, in legal practice for example, to be aware of how we feel about our client, the witness, or the judge, so we can know the influences on the decisions we make about the case.” (James, 2005, p.135)

In other words, at the most fundamental level of legal practice, emotion is present within the reasoning, decisions and interactions that take place. Therefore, to seek to ignore and suppress this seems, in itself, irrational. Instead, there is the potential to cultivate and utilise its presence in an effective and healthy manner, through the cultivation of particular emotional competences that are included within emotional intelligence.

In relation to the wellbeing of lawyers, it has been well documented within the US that lawyers suffer from higher levels of psychological distress and depression than the general population and greater instances of alcohol and substance abuse (see, for example, Peterson and Peterson, 2009, p.358 and Seligman et al, 2001). In a 2010 meta-analysis of US empirical work on lawyer satisfaction and dissatisfaction from 1984 to 2008, Organ noted that there is something of a dichotomy in that lawyer’s professed relatively high levels of job satisfaction, however, there is “separate empirical data that indicates lawyers disproportionately experience alcoholism, depression, and other mental health issues” (2010, p.268). He concluded the reasons for this discrepancy may lie in a form of denial or lack of self-awareness amongst lawyers (Organ, 2010, p.268). In Australia, in 2014, a survey of 384 full time lawyers in different areas of practice by Bergin and Jimmieson also concluded that a “high percentage” of participants had experienced psychological distress (Bergin and Jimmieson, 2014, p.387; see also Kelk et al, 2009). Within the UK, less large-scale empirical work has been done on this topic. However, there are indications that solicitors and barristers do experience a range of psychological pressures, including high levels of stress, with the charity LawCare reporting that half of the calls made to it during 2016 were in relation to workplace stress and depression (Walters, 2017) and initiatives such as the Legal Professions Wellbeing Taskforces for England and Wales and Scotland [4] , and the Wellbeing at the Bar project [5] being launched.

The empirical work undertaken on emotional labour within the legal profession also supports the idea that legal professionals in the UK may have to utilise a number of emotional competencies which, if dealt with inappropriately, can have deleterious effects on their wellbeing. [6] Westaby’s 2010 empirical study of immigration solicitors in the Yorkshire Humber area dealing with asylum claims found that participants experienced a tension between a genuine emotional involvement and rapport with clients and the need to preserve a form of professional detachment. The work involved in achieving this emotional balance could potentially lead to “burnout, decreasing task efficiency, as well as depression” (Westaby, 2010, p.170). Melville and Laing’s 2010 survey of family solicitors also highlighted that they found the emotional demands of clients to be draining, leaving them with a feeling of not being “on top of the file” (2010, p.287). Harris’s earlier survey, focused on barristers in the UK, also indicated that they found the emotional labour involved to have “some negative effects” while at the same time indicating that using emotion played a “fundamental and crucial aspect” of their role (2002, p.574). These studies imply that, at least in some areas of legal practice, forms of training and awareness-raising relating to the emotional aspects of the work are important to enhance practitioners’ understanding and ensure that they have sufficient emotional resilience to carry out their practice effectively (LETR, 2013, 4.84).

A final way in which emotional intelligence is linked to legal practice within the academic literature is through its role in promoting reflective practice (Douglas, 2015, pp.63-64). This involves:

“A conscious and deliberate analysis of a lawyering performance can provide the new lawyer with insights into what choices were available, what internal and external factors affected the decision making process, and what societal forces affected the context of the representation.” (Casey, 2014, p.319)

It is arguable that utilising emotional competencies in this process, and also reflecting on the emotional components of practice, are important to ensure an appropriate reflective practice (Douglas, 2015, p.64). This can link to both the effectiveness of legal practice and also wellbeing by enabling legal professionals to fully process, consider and learn from events that occur. It is also possible that such reflection can foster an appreciation of values and an “ethic of virtue” (Loder, 2012, p.461).

4. Key critiques of emotional intelligence

Having identified the major models of emotional intelligence that are available, and the potential benefits (if not necessity) of incorporating elements of emotional intelligence into legal practice, it is necessary to consider some of the key critiques of models of emotional intelligence in more depth, in order to evaluate the advantages and disadvantages of applying emotional intelligence as a legal meta-competency. The key issues which are identified in the psychological literature include the debate over conceptualisations of intelligence, the suggested convergence of emotional intelligence with personality traits, difficulties in measurement and its relationship with values and morality.

(a) Conceptualisations of intelligence

As discussed above, emotional intelligence challenges the conventional scientific wisdom which holds there to be a single, general faculty of intelligence. Whereas Salovey and Mayer have focused on arguing that emotional intelligence does meet the standard requirements to be classified as an intelligence (see, for example, Mayer et al, 1999), Goleman has drawn on Gardener’s work to challenge the restrictive nature of these requirements and appears to conceptualise emotional intelligence as a new, entirely separate form of intelligence (Goleman, 2004, pp.20-21; Goleman, 1996, p.28).

Gardner himself suggests that there is “nothing magical” about the use of the term “intelligence” but suggests that he used it to challenge the pre-eminence of “logic and language” in Western culture and its intelligence tests (1993, p.35). It is arguable, therefore, that a theory of “multiple abilities” could have equivalent value without creating such potential theoretical schisms (Jensen, 2008, p.97). If this is the case, referring simply to emotional abilities or competencies could be one way forward to avoid the theoretical challenges posed by the term “intelligence” in this context.

In applying emotion to certain fields, the term “intelligence” has certainly proved contentious. For example, in developing a social and emotional programme of learning for primary schools in the UK, Weare and Gray suggested that “the scientific connotations and expectations raised by the word ‘intelligence’ have aroused a great deal of controversy and some hostility” in a way which can detract attention from the importance of emotional and social competencies (2003, p.16). However, the use of this term by the LETR and the more anecdotal instances of its use amongst the legal professions are perhaps indicative of a level of acceptance for it within legal practice, akin to the way in which it has been embraced by the business world. The increasing pluralism of legal education has certainly shifted focus away from a peculiarly narrow form of “thinking like a lawyer” (Jones, 2015, p.3) in a way which leaves considerable potential for some form of emotional competencies to be acknowledged from the very beginning of the socialisation process, whichever terminology is used.

(b) Emotional intelligence and personality traits

A personality trait can be defined as an “internal psychological disposition that remains largely unchanged throughout the life span and determines differences between individuals” (Chamorro-Premuzic, 2007: 15). The commonly used model of personality traits is that of the “Big Five” factors which includes:-

“(I) Surgency (or Extraversion), (II) Agreeableness, (III) Conscientiousness (or Dependability), (IV) Emotional Stability (vs. Neuroticism), and (V) Culture. Alternatively, Factor V has been interpreted as Intellect….and as Openness.”(Goldberg, 1990: 1217).

It is arguable that that the large majority of traits identified by wider (“mixed”) models of emotional intelligence can be located within this taxonomy (McCrae, 2000: 263). Indeed, Goleman’s reference to emotional intelligence as “character” suggests a form of convergence. However, in the same writing he also describes emotional intelligence as a “ meta-ability” [author’s italics] determining how well raw ability and other skills are used (Goleman, 1996: 36; see also Boyatzis et al, 2000: 357). This implies that it goes beyond a collection of personality traits whilst also incorporating them. Petrides and Furnham argue that trait models of emotional intelligence should be re-labelled as “emotional self-efficacy” rather than retaining the description of intelligence (2001, p.427). In other words, that they should accept and build on their relationship with personality traits, rather than seeking to align themselves with cognitive functions.

It is the Salovey and Mayer model of emotional intelligence which has made the clearest attempts to distance its abilities from forms of personality traits. In many ways, this is tied into the authors’ insistence that they are dealing with a form of intelligence – if it is an intelligence, it is clearly distinguishable from a personality trait. Hence they argue that an ability model of emotional intelligence should have “minimal correlations” with the “Big Five” personality traits, with a modest exception in relation to Openness, and suggest that their data supports this pattern (Mayer et al, 2008: 508).

In terms of the application of emotional intelligence as a legal meta-competency, it may be that the distinctions between intelligence and personality traits are largely viewed as a question of semantics. Many large firms already use a mixture of psychometric and other assessments, designed to test a mixture of cognitive skills, wider abilities and also personality traits, with all being seen as integral to success in the profession. For example, Eversheds state that they require as trainees:

“…Multi-faceted people who combine extreme professionalism with outstanding expertise, genuine approachability and real personality.” (Eversheds, 2016)

What emotional intelligence does offer, once the competencies it encompasses are unpacked, is a way of conceptualising the various emotional competencies often required by law firms, but seldom articulated in a manner which is accessible and clear to aspiring entrants and other “outsiders”. This is arguably of particular importance when both branches of the legal profession have been criticised for their opacity and barriers to entry (see, for example, Ashley, 2010, Sommerlad, 2007 and Nicolson, 2005). Sommerlad (2015) suggests that the prevailing, neo-liberal discourse for entry into the profession is one that prizes merit. While the concept of merit is presented as objective, in fact, she argues its definition is “fluid, contingent, and instrumental” and created by norms which reflect “dominant social relations and are thus shaped by category-based power hierarchies that have their roots in its history” (Sommerlad, 2015, p.2347). This leads to its use legitimising the “the hegemony of white, upper middle-class males” (Sommerlad, 2015, p.2347).

By explicitly utilising emotional intelligence as a valued meta-competency for entrants, and using it to develop a more sophisticated framework of required emotional competencies, it is possible that the legal profession could lessen such critique and demonstrate a more transparent approach. It could be suggested that prioritising emotional intelligence in this way is itself discriminatory to those whose neurological composition may make it harder for them to identify or process emotion, for example, aspiring legal entrants who are autistic (Silani, 2008; Frith, 2004) or within cross-cultural settings. However, emotional competency is arguably already implicitly required and, as discussed above, handling emotion is increasingly becoming identified as a part of professional life. Therefore, providing a clear and accessible framework for its incorporation could be beneficial to any applicant struggling to navigate the social and emotional minefields of the legal profession.

The fact emotional intelligence can be conceptualised as a set of competencies which can potentially be developed over time means it could provide a clear focus for education and training in so-called “soft skills” to facilitate entry to the profession, as well as providing a valuable legal competency once in practice (Martin, 2014). Emmerling and Boyatzis also argue that emotional intelligence works across diverse cultural settings, with a “universal” relationship to performance, although specific manifestations may vary (2012, p.12).

(c) Difficulties in measurement

The arguments relating to the convergence of emotional intelligence with personality traits has been largely played out in arguments revolving around the various measures of emotional intelligence available. Although a wide variety of tests exists, there are three which have achieved prominence (although not always acceptance) in scientific circles, each based on one of the three models of emotional intelligence discussed above. The first of these is the Mayer Salovey Caruso Emotional Intelligence Test (“MSCEIT”) formerly known as the Multifactor Emotional Intelligence Scale (“MEIT) (Mayer et al, 2000b). The second is the Emotional Competence Inventory (ECI) developed by Boyatzis, Goleman and others (Boyatzis et al, 2000). The third is the EQ-i developed by Bar-On (2000).

As indicated above, what the latter two are actually measuring has been queried. Roberts et al argue that they are actually measuring a composite of the Big Five personality factors (2001: 201).

“We believe these data suggest that the Bar-On Emotional Quotient Inventory is nothing but a proxy measure of a composite of Big Five personality constructs weighted most strongly toward low neuroticism.” (Roberts et al, 2001, p.201)

Roberts et al broadly divide the approaches to assessments of emotional intelligence into two – self-report based and performance-based (2001, p.200/1). [7] The MSCEIT is performance-based, the EQ-i self-report based and the ECI is largely self-report based but also includes an element of what Mayer et al term “observer rating”, involving a third party’s observations being sought (2000b: 321).

In relation to self-report tests, Davies et al (in a comprehensive survey) argue that they are “problematic” for two key reasons: Firstly, because some have “poor reliability” and secondly because those which are satisfactorily reliable “tend to load on well-known personality factors” (1998, p.1012). In terms of reliability, Roberts et al point to the reliance of self-report methods on self-perception, which may not necessarily be accurate or consciously interpreted and can be subject to a wide range of factors such as the desire to appear socially acceptable and the possibility of self-deception (2001, p.200). Mayer et al also acknowledge this issue suggesting that the results will “rely on the individual’s self-understanding” (2000b: 324); something which, as indicated by Organ (2010) above, may be lacking amongst the legal profession.

Davies et al’s analysis of performance-based methods suggests that there is a lack of objective measures for aspects of emotional intelligence other than “emotion perception” – people’s ability to discern emotion (1998, p.1012). Although they conclude that their studies did include some evidence to support the presence of such a factor, they are critical of the MSCEIT methodology stating:

"Most objective measures of the Emotion Perception factor have extremely low reliabilities and do not satisfy accepted psychometric standards" (Davies et al, 1998, p.1012).

They also criticise performance-based methods as a whole in terms of reliability. The reason indicated for this lack of reliability is the use of consensual scoring procedures (Davies et al, 1998, p.1012). This is a method by which the views of a large number of people are taken and used as the basis for a “correct” answer to the question. This ties into the broader issue of whether it is possible to obtain objective answers in order to use performance-based methods to measure emotional intelligence. Averill argues that using this method means that divergent and idiosyncratic forms of emotional intelligence can be devalued as what is really being measured is emotional intelligence that conforms to certain norms (2000, p.230). Roberts et al also suggest it could reflect gender or cultural beliefs, such as the traditional British belief in a “stiff upper lip”. At worst, they suggest consensus methods “may simply indicate the extent of agreement with cultural or gender-based prejudices” (2001, p.203).

However, Oatley speculates in relation to key contributors on the topic:

"Have they not, perhaps, become too concerned with psychometrics?" (Oatley, 2004: 216)

His argument is that an understanding of emotional intelligence can be based on the forms of expertise that can clearly be identified in everyday life, learning from literature and “narrative accounts” of individuals’ experiences (Oatley, 2004, p.221). Fineman also makes a similar point, suggesting that measures of emotional intelligence can be limiting and reductionist (2004, p.724). He argues (in terms of research into emotion) for the use of narrative and other qualitative methods of assessment. These arguments for a move away from the standard measures of emotional intelligence seem to easily translate themselves to legal practice where there are many opportunities, formal and informal, to assess a legal professional’s emotional abilities or competencies, including client feedback, the attitudes of co-workers and support staff and regular appraisals. For aspiring solicitors, the proposed shift away from the Legal Practice Course and towards a period of work-based learning also appears to offer potential for a broad range of measures of emotional competencies (SRA, 2016a). The recent movement away from the traditional CPD requirement for solicitors and barristers also supports this, with the new focus on individuals’ reflecting on their practice and learning and development needs (SRA, 2016b; BSB, 2016).

(d) Relationship with values and morals

The question of the relationship between emotional intelligence and values and morals seems particularly pertinent when fictional depictions of lawyers in literature, films and TV shows often seem to focus on the idea of an amoral, or even immoral, manipulative, Machiavellian figure (a recent example being Saul Goodman in “Breaking Bad” and “Better Call Saul”). Nagler et al sum up the relationship between these perceived traits and the affective domain concisely when they ask “Are social and emotional skills always used for good intentions?” (2014, p.47). Gardner was at pains to point out that his original concepts of intra and interpersonal intelligence were both morally neutral (Gardener, 1999, p.69). However, he has suggested that a lack of understanding of one’s own feelings and responses (and the behaviour of others) can lead to inappropriate interactions, leading to an individual failing “to secure his proper place within the wider community” (Gardener, 1983, p.254). Salovey and Mayer appear to have been somewhat ambiguous on the subject of the links between emotional intelligence and values or morality (see, for example, their discussion in Mayer and Salovey, 1993). They have acknowledged that if emotional skills are “channeled antisocially” they may “create manipulative scenes or lead others sociopathically to nefarious ends” (Salovey and Mayer, 1990, p.198). However, others have been less equivocal, with Austin et al suggesting that emotional intelligence has generally been associated with positive outcomes and associations (2007: 180).

This argument does not appear to have been covered in depth outside the psychological literature, but the general literature on affect also demonstrates this potential, with a well-known example provided by the Doctor Fox lecture” where an actor was coached to deliver a lecture in a charismatic and humorous manner, but without any knowledge of the topic or the inclusion of any substantive content. The feedback given by three audiences of postgraduate students and professionals was highly favourable, with comments such as "has a warm manner "demonstrating the importance of personality in the response of the participants (Naftulin et al, 1973, p.632). Specifically in relation to emotional intelligence, Kilduff et al (2010) have raised the issue of people using such competencies in the workplace to “advance their own interests even at the expense of others”, again suggesting antisocial ends. However, Austin et al's earlier study found that emotional intelligence has generally been associated with positive outcomes and associations (2007, p.180).

A more complex issue is the extent to which identifying emotional intelligence as a meta-competency places increased demands upon legal professionals.In his sociological discussion of emotional intelligence in business, Hughes does suggest that its use is part of a wider trend in which “the rules of work involve implicit demands upon, and expectations of, emotional and moral character” (2005, p.611). Such demands and expectations suggest underlying forms of control by employers which can be viewed as manipulative and incursive (Fineman, 2004, p.724), although Hughes suggests that it also legitimates employees in vocalising their own emotions in the workplace, including making their own emotional demands and resisting unwelcome practices (Hughes, 2005, p.617).

Overall, although the potential of emotional intelligence being manipulated by individual legal professionals or employers is an important issue to be aware of, there is no evidence to suggest that this should prevent its use as a legal meta-competency (or that avoiding its explicit inclusion will lessen the possibility of emotional manipulation on the part of individuals). However, what is perhaps of greater concern are arguments that a more pervasive manipulation of the affective domain is occurring within neo-liberal society, which may be replicated within the profession (D’Aoust, 2014, p.274; Kiersey, 2014, p.358). This issue becomes particularly pertinent when considering how emotional intelligence may be incorporated into legal education and training.

5. The impact of neo-liberalisation on the incorporation of emotional legal competencies

In terms of neoliberalism generally, Blalock argues that it has now become “hegemonic” (Blalock, 2014, p.83; Giroux, 2012: 30). Effectively, she is suggesting that it has moved beyond a form of policy and become “a set of principles and modes of governance so ingrained as to constitute the common sense of the age” (Blalock, 2014, p.83). She argues that these principles have become so embedded that they are no longer seen as contentious. Its assumptions become largely unchallenged because of its dominant position within contemporary society (Blalock, 2014, p.84; Lynch, 2006, p.10). Therefore, its approach to emotion has a potentially significant impact on how and to what extent it can be incorporated in legal practice.

In the literature on neo-liberalism and emotion there are some discussions of how individuals are shaped by a neo-liberal society which touch on this topic. McLean suggests that literature on education identifies typical neo-liberal subjects as displaying “hyperindividuality, flexibility, and a strong sense of personal autonomy and responsibility” (2015, p.200). Lupton develops this further by suggesting that this individuality requires the individual to engage in “self-reflection and self-improvement” activities designed to enable them to achieve their goals and maximize their potential (1999, p. 289; see also Freeman, 2011). This involves a focus on the regulation of the self and self-esteem which implies a recognition of, and role for, emotion and, on the face of it, fits well with the direction the SRA (2016) and BSB (2016a) appear to be taking.

However, this is emotion being used for the neo-liberal ends of equipping citizens to become self-reliant and entrepreneurial and thus able to “participate responsibly and effectively as citizens” (Lupton, 1999: 297; see also Clegg and David, 2006: 155). D’Aoust supports this suggesting that neo-liberalism includes “highly emotional components, ranging from consumption desire to workforce management. Feelings as varied as love, anxiety, anger and desire are integral to neo-liberal processes” (2014: 269). However, she suggests that these are being used to create attachments to neo-liberal ideology, and hence dissipate resistance to it (D’Aoust, 2014: 274). Kiersey suggests that, not only is emotion used to generate attachment and commitment to neo-liberal goals, but its wider value has also been acknowledged as part of the “human capital” required for economic productivity (2014: 358). The creation of workers who have affective capabilities such as empathy is now viewed as providing greater economic productivity (Kiersey, 2014: 358).

Lynch appears to take a different view, suggesting that neo-liberalism continues the liberal tradition of the rational, autonomous subject and prizes self-regulation and governance. She suggests that this is done by replicating the “Cartesian man” (2006, p.5), arguing that:

"It is disregarding of the role that emotions play in our relationships and our learning, and correlatively indifferent to the central role of care and love relations in defining who we are". (Lynch, 2006, p.5)

Burke also echoes this in stating that the neo-liberal concept of the person “denies the inevitability of our relational existence in and with the world” (2015, p.389). Although seemingly contradictory, it is arguable that the views of Lupton (1999), D’Aoust (2014) and Kiersey (2014) are in fact compatible with those of Lynch (2006) and Burke (2015). In neo-liberal ideology emotion is being used to regulate a person’s behaviour and strengthen their ideological ties. It is not being used or valued as a way to develop and nurture relationships or in a manner which challenges forms of Cartesian dualism which relegates emotion to an irrational impulse which can be manipulated for economic means.

"Neoliberalism incites us to feel certain emotions, to suggest normative rules for their outward expression, and define the scope of their legitimacy". (Pilkington, 2016, p.273)

In terms of emotion within legal practice, this means that emotion could be viewed in neo-liberal terms as a useful soft skill for increasing employability and productivity. However, this is likely to be within a narrow conceptualisation which views relational aspects as irrelevant or worthless unless they can be demonstrated to have economic value. In an era where the market dominates as the “leitmotif” of neo-liberalism (Thornton, 2012, p.365) and the focus is largely on law as a business, rather than law as a public service (Wallace and Kay, 2008; Sommerlad, 2007; Boon, 2001), this may seem unproblematic. Nevertheless, there has been increasing concerns raised about the decline, or even crisis, in professionalism generated by this commercialized approach (see, for example, Wallace and Kay, 2008, p.1030). The lack of focus on the values imported to future legal professionals within legal education and training has also been criticized (see, for example, Burridge and Webb, 2009 and 2007) and has arguably contributed to the concerns around professionalism in legal practice. The LETR is strikingly clear in this respect, stating that:

"It is suggested that all approved regulators review the treatment of ethics and professionalism within their education and training regimes to ensure that the subject is addressed with the prominence and in the depth appropriate to the public profession of law". (LETR, 2013, para. 4.66)

6. Integrating emotional intelligence into legal education and training

The question of whether emotional competencies should be portrayed as so-called “soft skills” or linked to a humanistic approach intertwined with legal values has a significant influence on the stage of legal education and training at which it should be introduced. The UK’s division of legal education into academic and vocational stages, followed by a period of “on the job” training seems likely to survive the current debates on the future of qualification routes (Solicitors Regulation Authority, 2016a; Bar Standards Board, 2016b) making this a key issue.

The explicit focus on the development of legal competencies during the vocational stage of training has an obvious synergy with the introduction of emotional intelligence. This is demonstrated in the US context, where the postgraduate, vocationally orientated nature of the law degree has arguably contributed to a greater level of interest in emotional intelligence and a focus on its role in preparation for legal practice (James, 2008, p.87). The academic who originally bought this idea to prominence, Silver, argues that students need to prepare for the emotional effects practicing law can have on themselves and their clients, and that emotional intelligence can equip them with the tools to identify and manage these effects (Silver, 1999, p.1203; see also Montgomery, 2008 and Davis and Francois, 2005). Cain makes a similar argument and describes a weekly class on emotional intelligence he ran as part of a University of Denver College of Law internship (work experience) programme (2003, p.6). Two of the key goals of this class were encouraging students to apply emotional intelligence to their internship and, subsequently, their legal practice, as well as considering its application at an institutional level (Cain, 2003, p.7). Cain concludes that it was a “successful and rewarding” experience, although the small numbers involved (11 attendees with only 4 responding to an evaluative survey) make it difficult to draw any wider conclusions (Cain, 2003, p.17).

In England and Wales, the current requirement for Legal Practice Course students to demonstrate an understanding of the principles and techniques of interviewing, including being able to “listen actively” (SRA, 2011, p.16), has some links to the notion of empathy and the idea of developing a rapport with the client (Binder et al, 2004, p.49). However, it is arguable that the focus in relation to such listening skills has been on an instrumental use of the cognitive element of empathy and the notion of perspective-taking, rather than demonstrating a great deal of meaningful engagement with the affective domain (Margulies, 1999, p.609; see also Gerarda Brown, 2012). In practical terms, the tight timescales and detailed outcomes required from the vocational stage also appear likely to militate against emotional intelligence being introduced in any form of broader, richer manner at this point.

A more fundamental objection to leaving the introduction of emotional intelligence to the vocational stage of legal training (or beyond) is that it is arguably too late for those students who have already been through a lengthy law degree and early socialization to perceived “norms” of the profession, which may well not have included any form of acknowledgment of emotion (on socialization see, for example, Sommerlad, 2007, Stanley, 1998). To expect students on a pressurized and competitive vocational course to eschew established perceptions of law and emotion as largely antithetical and give themselves time to reflect on the concept of emotional intelligence as a meta-competency seems unrealistic, to say the least. Therefore, the question is whether and how the construct can be integrated into the undergraduate law degree in the UK.

Although undergraduate legal education has traditionally prized a somewhat narrow range of skills perceived as academic or intellectual in nature (Committee on Legal Education, 1971, para. 102; ACLEC, 1996, p66), in recent years it has followed the general trend within higher education and moved further towards the incorporation of a wider range of competencies. In 1997, Harris and Jones, in their survey of UK law schools, indicated that there was “widespread agreement” that “lawyering skills” such as “library research, legal reasoning, case analysis” should be included in the undergraduate law degree (1997, p.49). However, they suggested there was “much less of a consensus” over the extent to which vocational skills should be incorporated (Harris and Jones, 1997, p.49). Their findings from responses to surveys by 76 law schools was that 56.6% (43) did incorporate such vocational skills. 79% (30) of these were new university law schools. Of the law schools which included such skills, 30% (13) provided stand-alone skills units, 14% (6) embedded them into the overall curriculum, 51% (22) used both methods and two primarily used case studies and mooting (Harris and Jones, 1997: 50). Their conclusion was that there was “substantial diversity” in whether or not such skills were incorporated and, if so, how this was implemented (Harris and Jones, 1997, p.97).

A subsequent survey of law schools in 2004 found that out of 58 law schools who responded, 26% (15) had a compulsory module (or part of a module) relating to “lawyers’ professional responsibilities”. Another 8% (5) offered this on an optional basis. A total of 55% (35) offered mooting on either a compulsory or voluntary basis and 40% (23) offered courtroom skills. Overall, 80% of respondents (46) offered some form of “practical skills” module (or part thereof). The new university law schools were found to be more likely to offer the former four and only 3% (1) did not cover other “practical skills”, whereas 14% (4) of old university law schools did not cover these (Harris and Beinart, 2005, pp.309-310). Harris and Beinart conclude that this “diversity of practice” may represent a lack of coherency over the purpose of the undergraduate law degree (2005: 365). It could equally demonstrate a range of purposes in different university settings. However, it is clear that overall in the 8 year period between these two settings skills, in particular vocational skills, were becoming more prominent within law schools (particularly, it seems, within new universities).

Since 2005, the increasing neo-liberalisation of higher education, with its focus on the need to develop the employability skills of graduates and provide human capital for the knowledge economy suggests that this trend has continued. The advent of the Teaching Excellence Framework, with its reference to “acquisition of attributes such as lifelong learning skills and others that allow a graduate to make a strong contribution to society, economy and the environment” (Department of Education, 2016, p.19) as one of the assessable outcomes under it seems likely to foster this further, rather than reversing the trend, although the LETR did acknowledge that the question of which skills to incorporate at undergraduate level remained contentious (2013, para. 2.103-2.104).

The QAA's benchmarking statement [8] states that a law graduate should be “a well skilled graduate with considerable transferable generic and subject-specific knowledge, skills and attributes” (2015, p.4). However, rather than the term “generic” referring to vocational or soft skills, it is defined as meaning skills that “are imparted by most degree programmes in the humanities and social sciences” (QAA, 2015, p.7). The list of twelve “skills and qualities of mind” that a law graduate should possess does appear to focus heavily on legal and academic skills, such as critical analysis and evaluation. However, the reference to “self-management” and “engagement with their own personal and professional development, and academic integrity” do both suggest a place for wider skills (although the definition of self-management focuses largely on the idea of reflective learning) (QAA, 2015, p.7).

This contention over which skills should be included at the undergraduate stage is reflected in academic debate of the matter. For example, Bradney argues that it is appropriate for legal academics to research, at a theoretical level, any conceptual or other issues that arise in relation to professional legal skills. This, he suggests, would be an appropriate part of the legal academy’s mission to increase knowledge about legal practice. In doing this, members of the legal academy may also learn more about these skills (1987, p.131). However, he also states that “law schools cannot be involved in training people in such skills. Training as an end is inimical to the pursuit and acquisition of knowledge” (Bradney, 1987, p.130).

In contrast, Bridges (writing in relation to higher education generally) suggests that integrating skills into liberal forms of education is essential if education is to fulfil its aim of providing students with a positive freedom (1993, p.45). He argues that the aspirations which are now framed as skills are those which enable students to transfer their knowledge and understanding to the social, political and economic worlds thus empowering them in these spheres (Bridges, 1993, p.44). In the context of legal education, Ragavan develops this argument, suggesting that “the ability to apply particular skills in specific contexts will contribute to student success in the diverse environment they will encounter, especially in a globalised market” and arguing that this is an appropriate part of a liberal legal education (2012, p.16 and 20). Bell has also made a similar argument, suggesting that the language of “transferable skills” is necessary to communicate to employers and others the intellectual achievements of students receiving a liberal form of education (2000, p.178).

It appears that there is a widespread acceptance of the need for law students to develop academic or intellectual skills which can be applied to law. Although there appear to be differences between universities, it is likely that most institutions do implement these as part of their strategies for developing effective learners. However, the acceptance of the need for skills which are vocational in nature at the undergraduate stage is more qualified and the use and implementation of such skills in the undergraduate law degrees is likely to be more variable and diverse.

Therefore, whilst to argue that emotion should be incorporated into undergraduate legal education in England and Wales solely as a form of soft skill is appealing, because it correlates neatly with the neo-liberal ideology that is now so pervasive within the higher education sector, and its acknowledgment of emotion as a potentially useful tool within the knowledge economy (D’Aoust, 2014: 274; Kiersey, 2014: 358); at the same time, it is problematic for precisely that reason. Within the law school, there are still schisms between those who argue for a vocational form of legal education and those who view it as a liberal degree (Twining, 1995: 93). To label emotion as a soft skill could alienate those members of the legal academy who are seeking to resist neo-liberal ideology and those who wish to avoid vocationalism becoming an increasing part of undergraduate legal education. Its use in this way is not ideologically neutral and could be viewed as supporting, or even promoting, a neo-liberal agenda that is contested by many.

Taking into account the difficulties with incorporating skills perceived as vocational, and given the LETR’s emphasis on the need to embed legal values throughout legal education overall, incorporating emotional intelligence solely as an instrumental, vocationally-focused soft skill is arguably not a complete or wholly satisfactory role for it. Failing to acknowledge the broader importance of emotional intelligence can lead to such soft skills being dismissed as “a waste of time” or “too touchy feely” (student comments reported in Cain, 2003: 11-12). To avoid this it is necessary to take a more holistic approach to its incorporation which explores it in the context of, not only legal practice, but also ethics, values and wellbeing.

Ideas to incorporate emotional intelligence in such a richer, more holistic way could involve integrating it within the existing law school curriculum by providing opportunities such as encouraging reflection on feelings and emotion in small groups, requiring students to keep a reflective journal, incorporating emotionally intelligent techniques into forms of collaboration and problem-solving, providing appropriate mentoring and using mindfulness training (James, 2005, p.138-148; Silver, 1999).

7. Conclusion

"First and foremost, EI centralises emotion. It recognizes the emotional dimension of human experience and endeavour and as such confirms its relevance to the business of legal practice". (Douglas, 2015, p.63)

The phrase “emotional intelligence” has reached the level of popularity and usage that enables it to be quickly recognised as a form of shorthand for a range of emotional competencies. Therefore, as a form of meta-competency it has value as a term that is commonly recognised and (to a certain extent at least) accepted within general business practice and some forms of legal practice. It also has significant potential benefits for legal practice in terms of its effectiveness, the wellbeing of legal professionals and the development of reflectivity amongst legal professionals (Douglas, 2015; James, 2005).

Digging deeper into the meaning of emotional intelligence as a construct leads to a more complex picture of multiple models and varying reliance on abilities and personality traits, notably between the theories developed by Salovey and Mayer (1990) and Goleman (1996) respectively. Questions of what constitutes an intelligence and how emotional intelligence can be measured have also generated much debate. There is also a notable lack of engagement within much of the literature on emotional intelligence in relation to the broader discussion of the inter-relationship between emotion and cognition, which arguably adds to the confusion (Averill, 2004, p.229). Whilst these questions emphasise the need to begin to unpack the construct in much more detail, they do not appear to invalidate its potential use. Instead, they simply require a much greater attention and focus in relation to legal practice than has previously been afforded.

The relationship between emotional intelligence and values and morality has also been under-explored to date. Were a neo-liberal, instrumental view of emotional intelligence to be subscribed to, this may be excusable (or even welcomed) (D’Aoust, 2014; Kiersey, 2014). However, at a point in time where legal professionalism has been called into question and a clear need for values to be integrated into legal education and training has been identified (LETR, 2013) this is neither sufficient nor appropriate. Instead, this article proposes that the phrase emotional intelligence should be used as a starting point for a deeper, more nuanced analysis of the emotional competencies which underlie it and which are key for legal practice; together with an evaluation of their relationship with legal values, ethics and morality and the humanistic approach to legal education some are now beginning to take (see, for example, Krieger (2008) in the US context).

This form of enquiry requires a significant amount of empirical research to discern the legal profession’s current perceptions of the role of affect and emotional intelligence, the models of emotional intelligence that are most relevant and the measurements that can and should be applied. Alongside this, it requires both an understanding and appreciation of the theoretical frameworks governing both emotion and law. It is possible that one day there will be a framework, akin to the QAA (2015) for emotional competencies within the legal profession. However, before that level of clarity can be reached, there is much work to done in both legal practice and legal education and training to ensure that it is developed within a context where the role of affect (including emotion) is accepted, valued and respected as integral and vital, not merely economically expedient or a useful adjunct.

*Lecturer in Law, The Open University, UK. My thanks to my colleague, Keren Lloyd Bright, for her comments on an earlier draft of this paper. Any errors and omissions remain, of course, entirely my own.

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[1] This was a review set up by key stakeholders in the legal profession to examine the routes and requirements for entry into the profession.

[2] The term “competence” was defined by LETR as “An ability to perform the tasks and roles required of a lawyer to (at least) a minimum standard of effectiveness”. A specific “competence” or “competency” was defined as “A sub-category or component of competence, defined in terms of a task to be performed or attribute to be demonstrated”. (LETR, 2013, table 4.1). This broad definition has also been adopted for the purposes of this paper.

[3] Petrides et al explain that an ability-based model in this context refers to “one’s actual ability to recognize, process, and utilize emotion-laden information” whereas a trait-based model refers to “a constellation of behavioural dispositions and self-perceptions concerning one’s ability to recognize, process, and utilize emotion-laden information” (2004, p.278).

[4] http://www.lawcare.org.uk/wellbeing-initiatives

[5] https://www.wellbeingatthebar.org.uk/

[6] Emotional labour is a concept originated by Hochschild (2003) which suggests that employees in public-facing roles are required to perform emotionally as part of their work. Depending on the nature and extent of emotion labour involved, this can have deleterious consequences for the employees.

[7] Self-report measures rely on the participant’s self-perception, whereas performance-based measures assess the participant’s answers against set criteria.

[8] This defines what is expected from a law graduate, at the end of their studies.

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