Humanizing Legal Education Symposium/Conference – October 19-21, 2007
On Sunday, October 21st, Professor Winick will be presenting at a conference hosted by Washburn University University School of Law entitled “Humanizing Legal Education.” Professor Winick’s presentation is included in a session titled ” Therapeutic Jurisprudence, Restorative Justice, and Collaborative Law,” and the topic of his talk is “Therapeutic Jurisprudence in Legal Education.”
Abstract: Therapeutic jurisprudence (“TJ”) is a field of interdisciplinary legal scholarship with a law reform agenda. It sees law, legal processes, and the way legal actors play their roles as imposing psychological consequences for those affected. It seeks to measure these consequences and to minimize law’s antitherapeutic effects and maximize its healing potential. This paper will examine the use of therapeutic jurisprudence in legal education.
The paradigm can be used in substantive law courses to sensitize law students to the psychological dimensions of law and lawyering. It also can be used in legal skills training and clinical legal education. TJ has been combined with preventive law to create a new model of lawyering that has a more humanistic orientation and that seeks to lessen the profession’s adversarialness and to improve clients’ emotional wellbeing. The model moves beyond an exclusive focus on clients’ legal rights or interests, valuing their human needs as well. It represents a broadened conception of the lawyer’s role, calling for an interdisciplinary, psychologically-oriented perspective and enhanced interpersonal skills.
The TJ/preventive lawyer, working in collaboration with a client, seeks to identify the client’s long-term goals and to accomplish them through means that minimize exposure to legal difficulties and related emotional problems. Through creative problem solving, creative drafting, and the use of alternative dispute resolution techniques, the lawyer seeks to accomplish the client’s objectives and to avoid legal problems. The lawyer periodically meets with the client, conducting “legal check-ups” to receive updates on the client’s business and family affairs, to keep the client out of trouble, to reduce conflict, and to increase the client’s opportunities for success in life. This model calls for an attorney-client relationship involving increased psychological sensitivity, an awareness of basic psychological principles and techniques, enhanced interpersonal and interviewing skills, and approaches for dealing with the emotional issues that are likely to arise in the legal encounter.
The author will describe how he uses this model in teaching interviewing, counseling, and attorney/client relational skills. He also will describe how the model has been used in various clinical contexts – juvenile, immigration, criminal, and elder law, etc. He will suggest use of a preventive law technique – the rewind exercise – to acquaint students with the preventive and therapeutic orientation. The implicit message of traditional legal education is that the solution to legal problems lies in litigation. The rewind exercise is designed to allow the law student to analyze the alternative possible approaches that a lawyer can use to prevent a legal problem from occurring and to avoid or minimize the need for litigation. Let us “rewind” the situation back in time to the period prior to the occurrence of the critical acts or omissions that produced the problem. What could the client have done at this point to have avoided the problem? What can he or she do now to avoid its reoccurrence? What could the lawyer have done or suggested that might have prevented the problem or litigation? Cases in any substantive law course can be examined in this way. The professor can ask the student to rewind the controversy back to the time before the seeds of conflict were planted. This rewind technique can be employed throughout the legal curriculum to teach students the TJ/preventive orientation.
