November 3, 2015
By Amy Singer, Ph.D. and Kemberlee Bonnet
In our prior article we discussed the sacred attribute of Chokmah, which translates to “wisdom” (Applied Kabbalah: 10 sacred attributes to integrate into litigation – Part three: Wisdom, June 17, 2015), and that the attributes of knowledge and understanding must be appropriately combined to form wisdom. Knowledge, understanding and wisdom are considered the three “intellect” attributes. Without the jury having knowledge, understanding and wisdom of your testimony, evidence and arguments: you lose.
Now we will move to the remaining seven attributes that deal with the emotional aspects of your case. The first emotional attribute in the Sephroit is Chesed, which translates to “kindness.” Chokmah and Chesed are connected, as wisdom provides us with the capacity to connect with our emotions intelligently, not making decisions on some arbitrary whim. This is how the Sephroit works- the attributes are not exclusive; rather, they work as a system.
Jurors are instructed to make decisions based on fact, but as humans, it is difficult to leave one’s emotions behind. We all have emotions, but in actuality, they have us. Although emotions are considered irrational when it comes to making a decision, they are useful in getting us in tune to a situation, but only if we are intelligent with them. Too much of any Sephroit attribute is not good- although it might sound odd to say there can be too much kindness, it is not. Imagine if a juror feels more kindness towards one side versus the other? In order for there to be justice, there must be kindness; kindness towards both sides equally.
So what is kindness? Kindness (Chesed) is a core ethical virtue.[i] It is much more than being pleasant and wishing someone well, it is associated with action, a pro-active virtue.[ii] The difference between kindness and “being nice” or empathetic is that kindness is associated with action. Chesed is properly described as an act that has no “cause”- it is a gift in which the receiver owes nothing in return.[iii] For example, you run out of gas and someone has a gas can and helps you. If it is truly a Chesed act, they will expect nothing in return for letting you use their gas can.
Kindness is different from compassion. In kindness, a person may feel sorry for someone but will not reflect the suffering person’s feelings.[iv] Compassion is a deeper and stronger feeling, as compared to kindness. An act of compassion would involve, for example, talking to a person and understanding their emotions and problems, delving much deeper into the situation at hand at a more personal level. This, of course would be impossible for a juror to do from the jury panel. Kindness is not sympathy. Litigators do not want sympathy, they want kindness in judgment. Justice can never be based on sympathy.
Kindness Must be Equally Felt Among the Parties
A juror must separate the head from the heart and follow the law. There is an expectation that the law be followed. It sounds contradictory to Chesed, where nothing is to be expected from one’s actions; however, justice is always expected- but to get to justice one must be impartial. One cannot expect a certain turnout because of his or her own beliefs, values or morals. So in order to dispense justice you truly have to expect nothing of benefit for yourself but the truth. To do otherwise would be unfair or unkind to one side of the law either to the state, the victim or even the defendant.
I consulted on a case where a young drunk driver killed an elderly woman. Obviously those individuals who felt sorry for one side more so than the other were excused for cause. The other jurors were kind in their judgments to both sides. They had the intellectual attributes of knowledge, understanding and wisdom for both sides. They understood the tragedy for both sides. In their minds, justice was awarding exactly what the plaintiff asked for in compensatory damages. Furthermore, they awarded exactly as much as the defense wanted in punitive damages. The verdict was not appealed. Both sides felt that justice was served.
Even a positive trait such as Chesed has undesirable spin-offs if it is not applied correctly. One should not want to have Chesed at the expense of another. Further, if a person does not have well-defined boundaries then he may find it difficult to avoid misrepresentation because honesty requires the ability to follow the boundaries of truth.[v] A juror might have the natural propensity for Chesed, but he cannot allow his natural dispositions to lead him instinctively. Rather, he must balance his Chesed when necessary.