Prof. Winick published A Legal Autopsy of the Lawyering in Schiavo: A Therapeutic Jurisprudence/Preventive Law Rewind Exercise 61 U. MIAMI L. REV. 595 -664 (2007)
Abstract:This article paper examines the lawyering in the Schiavo case. It examines not the quality of the arguments made or the procedures used, but the extent to which the lawyering was consistent with the emotional needs of the respective clients. The Schiavo case provides an opportunity to illustrate the therapeutic jurisprudence/preventive law model of lawyering. In many ways, the case was an emotional disaster for all parties. The litigation became the functional equivalent of a train wreck. Could it have been avoided? Could the lawyers have acted differently in the way they counseled their clients? Were there approaches other than high conflict litigation that could have been attempted that would have reduced the level of conflict or even resolved the controversy?
The article explains the therapeutic jurisprudence/preventive law model and conducts a sort of autopsy of the case, rewinding it back to several crucial points at its early stages to examine what the lawyers could have done differently. What techniques or approaches could have been used that were not? How should the lawyers have advised their clients concerning the risks and emotional costs of litigation? To what extent should rules of professional conduct or lawyering practices be changed to ameliorate the problems that this case so vividly illustrates? The article examines these questions, and in the process, analyzes lawyering generally.
