Empathy for pain

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Chapter 11 endnote 65, from How Emotions are Made: The Secret Life of the Brain by Lisa Feldman Barrett.
Some context is:

In a chronic pain case, it’s harder [to empathize with the defendant]: how do you see the invisible? There are no injuries to look at, and nothing to help your brain create the simulation, so empathy suffers and consequently so does compensation. [...] Note that the large majority of civil cases reach a settlement out of court.

For more on the difficulty of empathizing about pain, see these references.[1][2][3]

Although trials and their outcomes are important, it’s misleading to focus solely on trials, because the large majority of civil cases reach a settlement out of court, in the shadow of litigation. This settlement strategy leaves gaping opportunities for bias to creep in as lawyers try to guess (i.e., simulate) how judges and juries will evaluate the evidence in a case and perhaps, most importantly but more unfairly, the likability and demeanor of their respective clients. As we learned earlier in chapter 11, judges tend to rule in favor of likable people who play the victim role as prescribed.

Notes on the Notes

  1. Cohen, Milton, John Quintner, David Buchanan, Mandy Nielsen, and Lynette Guy. 2011. "Stigmatization of patients with chronic pain: the extinction of empathy." Pain Medicine 12 (11): 1637-1643.
  2. Singer, Tania, Ben Seymour, John O'doherty, Holger Kaube, Raymond J. Dolan, and Chris D. Frith. 2004. "Empathy for pain involves the affective but not sensory components of pain." Science 303 (20): 1157-1162. 
  3. Some people may be able to simulate the sensory aspects of other's pain if they, themselves, have previous experienced similar pain. See Derbyshire, Stuart WG, Jody Osborn, and Steven Brown. 2013. "Feeling the pain of others is associated with self-other confusion and prior pain experience." Frontiers in Human Neuroscience 7: 470. doi: 10.3389/fnhum.2013.00470