The Empathy Ladder: Translating Complexity to Understanding
Litigation is as much about clarity as it is about advocacy. As an advocate, you need to learn complex concepts, scrutinize them as critic and cross-examiner, and teach them as a persuader. You must cross and then bridge the chasm between sophisticated technical concepts and your audience’s everyday understanding to solve the problem of misunderstanding before it starts. This is certainly true when persuading jurors but applies just as much for understanding and examining expert witnesses, persuading judges, and more. Enter the empathy ladder, influenced by S.I. Hayakawa’s “ladder of abstraction,” a concept embraced in narrative storytelling and beyond. The empathy ladder is our applied take on how to use Hayakawa’s idea in litigation. It helps you make the complex clear, the unfamiliar familiar, and the abstract personal, while providing a way to build empathy and trust in three key roles as trial advocate.
What Is the Ladder of Abstraction?
At its core, the ladder of abstraction describes a spectrum spanning from general to specific at various positions on a conceptual ladder. At the top is the most general: abstract and universal concepts that communicate values, themes, or principles (e.g., “justice,” “safety,” “responsibility”). These are easy to understand, familiar if not universal at the highest level. They can be communicated in a single sentence. In the middle are explanatory statements and organizing information that explain the concept and how it works in more definite terms (e.g. archetypes, narratives, models, frameworks). At the bottom is the most specific. This is where concrete, vivid, and specific details make the concept and its explanation real and resonant for the people you want to identify with your positions.
Imagine defending a product liability claim against a consumer device. At the top rung your defense theme might be something like, “Responsibility is the sum of choices before harm.” At the middle rung you propose a four-step model that explains the defendant company’s product safety program: “Design review, lab testing, field monitoring, customer communication.” At the bottom you provide and describe the details: “On a Thursday morning in May, Sarah Davies is in the product lab. She is a long-time safety engineer enjoying her final review of the product checklist when she signs the product quality report to verify the product ‘passed’ all testing and is ready for manufacture. She hits send on the report and claps her hands twice, like she does every time she finishes this process.” Each step is key. Each rung of the ladder is helpful. The bottom rung is critical for building identification and empathy.
Details Build Empathy and Persuade.
Professor Korrina Duffy explains how neuroscience and psychology affirm two core lessons for persuasion. First, empathy emerges from specificity: When your audience knows what someone loves, fears, strives for, or is conflicted by, that character becomes “real”—and real people evoke empathy, even across divides in experience. Second, universal messages require grounding: Without specifics, broad claims can feel empty, especially in today’s climate of distrust and doubt around even the most straight-forward “facts.” Given sensorial, lived detail and nuance, even jurors outside your character’s reality see the dilemma, the emotion, or the principle at play.
Using the Ladder as Learner.
You can use the three rungs as a tool to help you and your team learn the key issues and develop a clear and supportable communication strategy during discovery.
For example, you listen to your key witness in early interviews describe a key moment or event in the case. This is the time to lean in for the bottom rung. Ask questions about their sensory perceptions. Build a four-sentence “bottom-rung” microstory (see example above) that you can use to develop the middle and upper rungs from that witness’ perspective. Then, translate those specifics to a broader model or narrative (middle rung), that you can eventually elevate to a principle or value (highest rung). This helps you learn the case, separate the critical moments and details from the excess, and focus your case. It also helps your witness understand what facts fit into the larger narrative and how to simplify when helpful.
However, it is important to avoid detail-dumping that results in getting lost in weeds or drowning in documents, details, too many characters, too many numbers, or too many facts. At the same time, avoid starting with broad (top rung) themes by over-abstracting. Resist framing your witness conversations with themes or universal statements and always aim to immediately pair themes with explanations via specific proof.
You want your highest level to be simple and straightforward, familiar and understandable, even though it likely will not be sufficient to persuade. That’s why you also want to clearly understand your middle rung that gives you a viable bridge between the specifics and the headline. We recommend our clients complete all levels of the ladder for each of the critical concepts you identify in discovery: (1) the product safety plan; (2) the product testing narrative; (3) the monitoring process; (4) customer communication practices.
Using the Ladder as Critic.
You can also use the empathy ladder as a critic of your own and your opponent’s expert witnesses and in the development of technical direct and cross-examinations. You want to understand the technical at all three levels of the ladder: When it comes to a product’s failure, a patent’s innovation, or the cause of a physical injury, what is the headline, high-level conclusion (highest rung)? What is the familiar but apt explanation for how the complex concepts work and why it matters (middle rung)? And finally, what are the details that make it human and relatable at a personal level (lowest rung)? Develop and identify the answers to these questions for you as advocate, for your experts, and your opposing experts.
Being conversant and ready to understand and challenge inconsistencies at all three levels will make you better with experts and in witness examinations. And obviously, we recommend identifying the key topic areas and events that benefit from a ladder analysis (e.g. the four main product safety areas identified above). Then, prepare yourself and your experts by explicitly identifying and communicating in clear and familiar language your version of each rung. This usually means you literally write your best rung statements for each issue in a document that you can record, use, and revise as the case unfolds. You may be shocked how they improve along the way and how much clarity and focus they can bring to your preparation.
Using the Ladder as Teacher.
The ultimate goal of using the empathy ladder to learn your case is to improve your ability to teach the key issues at the appropriate levels of detail or simplicity. To communicate details and engender empathy, you must get to the concrete. But you must get there by climbing appropriately up and down the ladder in a way that fosters the greatest clarity so jurors can use that clarity to feel empathy for your positions and your witnesses.
Use the tenets of jury economics to guide your teaching:
Persuasion is egocentric. Jurors embrace what they already know. Choose the best ladder rung to link to the familiar and allow your audience to access the other rungs of the ladder that are less familiar. For instance, before introducing an expert’s detailed testimony, first use metaphors rooted in common experience bicycle pedals, kitchen appliances, family routines. Then develop the details at the lower rungs to provide the detail and support for the larger theme. For fact witnesses, you may start at the lower level of relatable human experience by demonstrating how the complex relates to the familiar: “Sarah looked at this product’s encryption and it felt like a locked safe, not a way to hide product data.”
Persuasion is economical. A ladder analysis helps you keep things simple. For any given issue, no matter how complex, you may have just three direct statements that matter (one at each rung). For the explanatory middle rung, offer simple frameworks: “the three safety gates,” “the four-step process,” and use visuals and simple, self-evident graphics to help seal these frameworks in memory. Simplify the puzzle of your case. Don’t throw a thousand undifferentiated pieces at the jury. Show them the big picture, then provide support for the key pieces that fit: a timeline, a process flow, a short list of critical emails. Stop well-short of doing too much or you risk diluting what you need to do.
Persuasion is also social. Articulate the values at stake that jurors will be motivated to argue (“This is responsibility in action, before, not after harm.”) Tie back to themes throughout (“Every QA step, every fix, was a choice for safety over risk.”) These “top rung” statements are the types of statements jurors can argue and repeat in deliberations.
Persuasion is symbolic. Select central facts and moments that symbolize higher themes. This is your focus on the moment a product engineer approved a product’s design after careful review, the moment a product monitor recognized a pattern in product failures and acted immediately to raise the issue, and more. These stories, and focused narratives that support the larger themes, are memorable and repeatable.
How does the ladder engender empathy? Writer Korrina Duffy says it well: “The more a character becomes real, the more that a reader can empathize with that character, and the more a reader can empathize with a character, the more universal that character’s story becomes—even a story far different from their own.”
Using the ladder is an intentional discipline to help you and your witnesses move between “the street” of lived detail and “the sky” of universal ideas that apply in your case. Used wisely, it enables you to connect, teach, and guide so your audience can make decisions with complex information. Each rung—detail, explanation, theme—must support the next and allow you to move up and down the ladder based on your persuasive needs in the moment.
Thomas M. O’Toole, Ph.D. is President of Sound Jury Consulting in Seattle, WA. Kevin R. Boully, Ph.D. is Senior Consultant at Perkins Coie in Denver, CO.
