Review – Richard Halpert
The Heart of the Problem: Dealing with clients’ emotional as well as legal needs can be very healing
Reviewed by Richard Halpert
ABA Journal/May 2001, pg 79
Until now, therapeutic jurisprudence has been a fairly well-kept secret. It may have something to do with the name itself; it’s somewhat intimidating, and to some people it might connote a body of scholarly work with questionable relevance to the world of day-to-day law practice
In fact, TJ, as it is commonly called, has implications that go straight to the heart of daily law practice.
For decades, lawyers have prepared carefully crafted documents or tried technically aesthetic trials only to have clients whose basic human needs remain unfulfilled. Some lawyers recognized this gap and began addressing the clients’ psychological and emotional needs.
But not until about a decade ago, when David Wexler and Bruce Winick formally introduced and labeled the concept “therapeutic jurisprudence” did it have a name, a shape and a definition.
Practical Practices
Since then, hundreds of articles have been written about the theory and importance of such a concept, but little practical advice for the practitioner had been provided. InPracticing Therapeutic Jurisprudence, that advice has arrived.
This collection of articles includes the theoretical basis of TJ, but most importantly, it shows how TJ — which Winick and Wexler have described as the study of the law’s healing potential — can be used in a variety of settings and practice areas.
Much of the theory can be applied in any legal context, but there are also specific pieces on the use of TJ in particular legal areas. In health law, for example, it can be used when drafting advance directives and when dealing with AIDS and mental health problems.
In family law, it can be used for such things as planning for unmarried committed partners and dealing with the effects of divorce on children. Other areas where it can be used include criminal law and, perhaps most surprisingly, litigation.
The reader is taken on a guided journey through each of these areas (and others), not from a technical/legalistic standpoint, but rather by constantly asking the ultimate TJ question: How can I help my client obtain the greatest happiness and peace of mind through identifying his or her emotional and psychological needs and then designing services to meet them?
In one of many examples from this compendium, a request for a simple will sets off a host of questions for a TJ-oriented lawyer to explore.
The Burkes are the elderly couple seeking the will. One of their children, Tom, has a substance abuse problem. His share of the inheritance could be put in trust, but the TJ lawyer must ask, “How will Tom react? Will such a bequest result in fights between him and his siblings?
“Will it cause damage to an ego that’s already compromised (‘Mom and Dad never trusted me’)? Will the Burkes feel guilty about what they have done and will it interfere with their relationship with Tom while they are alive?”
The TJ lawyer must discuss these issues with the Burkes and help them find solutions. Perhaps the solution is to talk to Tom about their concerns before completing the document. Maybe the parents can be encouraged to identify the problem with him, while at the same time assuring him of their love for him.
While this book on practicing therapeutic jurisprudence may be conceptually sound, does it meet the test of practicality? Does it work?
As a lawyer who has practiced TJ-style law in the personal injury context for more than 25 years, I can say unequivocally that it does. It works on several levels. First, it explains TJ in a simple, understandable manner.
Second, it provides the theoretical basis for its application. Third, through examples, it demonstrates how TJ works in practice, the nuts and bolts of application. Finally, it identifies problems in the TJ approach — roadblocks, as it were — and suggests routes around them.
While Practicing Therapeutic Jurisprudence can be read as a textbook (and should be by law student), it is also a reference work. An attorney who doesn’t have time to read the entire volume can select those chapters that provide specific help in his or her area.
The first chapter offers a good example. It is called “Integrating Preventive Law and Therapeutic Jurisprudence: A Law and Psychology-Based Approach to Lawyering.” Lawyers who read it will gain a basic understanding of how and why preventive law and TJ can help serve the client as a whole person, and not merely as a problem or a case.
The book also demonstrates how TJ helps lawyers with the frustrations of practice in a profession in which far too many “are extraordinarily unhappy and even psychologically impaired.”
Does this collection provide a complete analysis of all the legal problems that might benefit from TJ analysis? Of course not, nor does it try to.
As co-editor Dennis Stolle writes, “My hope is that this book will encourage practitioners, scholars, teachers and students of the law to take the application of these principles beyond the context presented in this volume and to more fully develop and apply them in such contexts as juvenile law, health law, commercial law and tort law.”
Reality Check
Practicing Therapeutic Jurisprudence dispels some of the myths that have grown around TJ, the most important of which is that it must be nonconfrontational. TJ is not necessarily “touchy-feely law.”
It is simply about identifying all of the client’s needs, not just the technical/legal ones. As Susan Daicoff points out in the chapter titled “The Role of Therapeutic Jurisprudence”:
“Finally, thre may be times that gladiatorial, adversarial and hostile lawyering is actually the most therapeutic and empowering approach for individuals involved in the dispute.
I have found that in some cases, such as the loss of a child to the recklessness of a drunk driver, an important therapeutic tool for the parent trying to survive such a tragedy is to enforce the criminal and civil law with all of its power against the defendant.
An important step in grief recovery is moving effectively through the anger stage. Failure to recognize, acknowledge and appreciate this stage can significantly interfere with the client’s overall recovery from a tragedy.
Enhanced Value
The ideas presented in Practicing Therapeutic Jurisprudence are not merely theoretically sound. We’ve tested many in our law office, ad find that they are unusually effective in enhancing our value to our clients. The also are professionally and personally satisfying to us.
Consider the woman who is hurt in an accident and in the course of discussions her lawyer learns that she is in a physically abusive marriage. Should the lawyer pursue only compensation from the tortfeasor or help the woman identify and address the abuse? If he is a TJ-oriented lawyer, he must do both.
The solution may be as simple as a referral to a psychological professional, but clients rarely pursue such counseling without clear guidance from their lawyers as to how helpful such counseling can be and how entitled they are to seek it.
What of the client who is depressed? Addicted? Engaging in high-risk behavior?
Surely the role of the therapeutic jurisprudence lawyer can extend to at least discussing these issues with the client. If the relationship is as sound as it should be, the lawyer will be in a position to help the person he represents reach a greater level of happiness regardless of the specific problem that brought that client into the law office. When therapeutic jurisprudence is so extended, the goal of the editors can surely be reached:
The practice of law can be transformed into an instrument for helping people, ultimately revitalizing the professional life of the attorney by making law practice more enriched and fulfilling.
Practicing Therapeutic Jurisprudence integrates the theoretical discussion of TJ with the practical application lawyers desperately need to serve their clients as human beings. It’s in that nexus that the deepest satisfaction can be found in law practice.
Practicing Therapeutic Jurisprudence: Law as a helping profession – Book Review by Warren Brookbanks
Introduction
Practicing Therapeutic Jurisprudence: Law as a Helping Profession’ is a major new edition to the rapidly growing literature on therapeutic jurisprudence. The book is essentially an anthology of essays, a number of which have already appeared in Review articles, which deal with a range of issues directly or indirectly associated with this rapidly developing school of social inquiry. As such it represents a valuable starting point for anyone interested in understanding both the theory of therapeutic jurisprudence and its implications for the practice of law and law reform.
In the forward to the book Edward Dauer, who also contributed to the opening chapter, suggests that therapeutic jurisprudence (TJ) has ” become a managing partner in the enterprise of fashioning the 21st century’s lawyer.” While this is a bold claim, there is a growing body of literature which suggests that TJ is already having a significant impact on the ways in which legal disputes are conceptualised and resolved. If the claims that the authors make concerning the importance of therapeutic jurisprudence and its allied “vectors” are validated, there can be little doubt that TJ is destined to be instrumental in revitalizing the practice of law and in providing a revolutionary construct for law reform.
What TJ offers, and is endorsed by various essays in this volume, is the promise of a fresh perspective on law through a truly interdisciplinary approach to legal scholarship and practice. However, as the authors are at pains to point out, TJis not merely a theoretical construct to be studied academically, but is also a valuable instrument for reforming law and legal processes by placing a significant focus on the psychological and emotional health of persons affected by the law and working to change those processes to achieve better therapeutic outcomes .
Structure
Practicing Therapeutic Jurisprudence is a substantial text of 492 pages. The book is divided into six parts containing 15 chapters plus an After word and Appendix. Its editors have contributed liberally to a number of chapters within the volume. In particular there are major contributions by both Bruce Winick and David Wexler, together the co?founders of the TJ school, and writers whose work has had a profound influence in the conceptualisation of this radical new approach to law. Their contributions to eight of the 15 chapters are complemented by the works of other authors whose original writing is also well attested within the “comprehensive law” movement.
The Text
A theme of this book is that law, for all its social benefits, is an inherently damaging mechanism of social contro, whose negative effects are, nonetheless, amenable to modification and mitigation. This truth is expressed in many diverse ways, demonstrating both the fragility of established legal method and the optimistic possibilities of systemic reform. Importantly, as Dennis Stolle notes in the Introduction, TJ offers the possibility of a ‘bottom?up ‘approach to law reform by considering not only how laws might be changed to be more therapeutic, but also how existing laws could be more therapeutic in application . To that end Practicing Therapeutic Jurisprudence may be regarded as a handbook to guide initiates in TJ thinking into consideration of practical ways of altering current modes of practice, and thinking about practice issues, in order to achieve more psychologically beneficial outcomes.
The first chapter, entitled ” Integrating Preventive Law and Therapeutic Jurisprudence: A Law and Psychology Based Approach to Lawyering” by Stolle, Wexler, Winick and Dauer, is really the flagship chapter within this volume. It brings together a number of sub ?themes which are developed in detail in later chapters. Furthermore, the themes of preventive law and therapeutic jurisprudence, which are brought together in a compelling synthesis in this chapter, are streams which run liberally through the text and inform the analysis of other approaches to such issues as legal planning for unmarried partners, the detrimental effects of divorce, the role of defence counsel at sentencing and the counsel’s role in litigation, to name a few.
It should be noted that this synthesis is a relatively recent development arising from pioneering work done over the last four years by the four authors. However, despite its relative novelty, preventive law has now been mainstreamed, at least in North America, as a pro?active approach to lawyering. As it is described in the book, preventive law emphasizes the lawyer’s role as a planner and ” proposes the careful private ordering of affairs as a method of avoiding the high costs of litigation and insuring desired outcomes and opportunities.” Central to its role is the idea and that clients should have regular ” legal check? ups ” in the same wav that a patient may have a medical checkup with a doctor.
TJ, for those unfamiliar with the concept, is an interdisciplinary approach to law which is founded on the understanding that law is social force that has inevitable consequences for the mental health and psychological functioning of those it affects. These”therapeutic” or “anti-therapeutic” effects of law may be studied with the tools of the social sciences with a view to reforming the law and legal processes to reduce the anti therapeutic effects and to maximize therapeutic outcomes. As later chapters will demonstrate, therapeutic jurisprudence serves to sharpen the public policv debate about law and law reform while preserving other important normative values.
In Chapter 1 the authors seek to synthesize the concepts of preventive law and therapeutic jurisprudence by showing how each construct mav work collaboratively to support and give colour to the other. Examples are given from ‘elder’ law, HIVAids law, family law and corporate and business planning law to demonstrate how the approach of TJ/preventive law might be made to fit within .a particular legal context. Although much of this discussion is speculative, in the sense that the examples are imaginary and not based on specific case studies, it should not be dismissed as improbable. The great strength of this publication is that it foreshadows developments in legal practice that involve a new paradigm in legal thinking and provides the language for interested practitioners to both debate and plan for these new approaches to legal problem ?solving. Although, as the authors note,(p 31 fn 84) TJ is an approach to creating a body of substance rather than a body of substance per se, the body of explicit TJ substance is growing as our understanding of law?related psychological distress is enhanced by social science research. The chapter concludes by examining different ways in which further co?ordination can be achieved between the two schools of thought with particular reference to legal practice, ongoing research and scholarship and teaching. The integration of therapeutic jurisprudence teaching into law school carricula s now well established in many North American Law schools, although the concept has yet to be assimilated into the mainstream thinking in other common law jurisdictions.
Integrating Therapeutic Jurisprudence and Preventive Law
In the second chapter, ” Practicing Therapeutic Jurisprudence: Psycholegal Soft Spot and Strategies”, David Wexler is concerned to draw TJ out of the academy into the market place where it may be “felt by practitioners”. As he observes, the movement from theory to practice is occuring as TJ begins to evoke a response from members of both the judiciary and the practising profession. Perhaps a defining limit to the practice of TJ might be that the area of law concerned must be amenable to application in a manner likely to promote psychological wellbeing. (p 46). While this may be feasible in relation to a broad range of areas of law already targeted as “TJ friendly” ( criminal law, family law, juvenile law, health law, employment law etc), it may be more difficult to imagine how it might apply in more technical areas of legal practice including securities law, intellectual property law, tax law and conflicts of law. However, it would be imprudent to limit the potential scope of TJ analysis. Areas which currently may seem to be unlikely candidates for the application of TJ principles may give rise to practice issues in some unexpected ways which prove to be susceptible to a TJ approach.
The chapter offers a range of case examples drawn from different areas of practice to explore a possible TJ/ preventive law approach. Each example highlights a particular “psycholegal soft spot” to which TJ principles may be applied in order to resolve particular issues. The concept of the “psycholegal softspot” is endemic to the preventive law model and essential to understanding the theory of preventive law. The concept was first coined by Dennis Stolle (see DP Stolle et al,”lntegrating Preventive Law and Therapeutic Jurisprudence: A Law and Psychology Based Approach to Lawyering, ” (1997) 34 Cal WL Rev 15) and refers to areas where legal intervention or procedures may not lead to litigation or legal vulnerability, but may produce anxiety, distress, depression etc and will need to be dealt with. The theory is that preventing psychosocial problems, in particular those which are law?related, may be more cost?effective than dealing with them once they erupt. As Wexler observes, ” the goal of the TJ preventive lawyer is to take the legal consultation a step further by considering not only the legal or economic ramifications of implementing a particular legal tool, but also to consider the psychological or emotional ramifications.” (p 50 ) This paradigm is thus applied to problems like the creation of family trusts, planning for future disability, HlV/family reconciliation, the psychological effects of divorce on children and incompetence labelling. Of particular interest, as Wexler notes, is the fact that the judiciary is an emerging source for the identification of psycholegal softspots and strategies for dealing with them. An outcome of The Annual Convention of the National Association of Women Judges held in Salt Lake City in 1997 was the creation of a Therapeutic Jurisprudence Judging Project, which aims to further the links between judging and therapeutic jurisprudence lawyering in the USA. It is anticipated that such initiatives, a llied with specific empirical research, will be instrumental in fostering improvement in the~humanistic functioning of the law.
In chapter 3, entitled ” Better Legal Counselling Through Empirical Research: ldentifying Psycholegal Soft Spots and Strategies”, the authors consider the problem that because most lawyers do not practice with an ‘ethic of care’ in dealing with legal matters, insufficient attention is paid to related ‘ psychological fallout’. The Chapter considers how the integration of preventive law and therapeutic jurisprudence can ease the task of predicting such psychological consequences and give substance to legal counselling. The concept of the “psycholegal softspot” is further explored . It is perhaps appropriate in this context to reflect on the fact and that in the same way that physicians are often be instrumental in producing physical of dysfunction or iatrogenic illness ( see Merrey, A. & McCallSmith, A . , Errors, Medicine and the Law (Cambridge: CUP 2001 ), legal actors may also be a direct cause of psychological dysfunction in their clients. The language of ‘juridogenic’ or ‘forensogenic ‘dysfunction may be apt to describe such negative legally ?caused disorder, which may equally be the product of a negligent omission to act in the clients best interests as much as deliberate malfeasance. In any event TJ/ preventive law presuppose the possibility of such legally?generated dysfunction as a mischief that TJ/preventive lawyers ought to be sensitive to and aim to avoid.
Civil Practice
Part 11 of the book, dealing with civil practice issues, opens with a discussion on advance directives, Aids and mental health from a TJ/ Preventive Law perspective. The importance of this section speaks for itself. As Dennis Stolle observes, a person who learns that he or she is HIV ?positive must not only deal with overwhelming health care issues related to living with a potentially terminal disease, but also “a myriad of legal and social issues “(p 83). The chapter recognises that in legal planning for an HIV? positive client, concerns of psychological and emotional wellbeing should be explicitly recognised as one priority among many; and that the promotion of autonomy and psychological wellbeing may be assisted by the use of mental health?care advance directives.
The unique character of HIV infection may produce in the sufferer a wide range of emotional reactions encompassing anger, fear, self?blame, hopelessness, fear of loss of mental capacity and fear of death. For this reason Stolle argues that a TJ analysis would suggest that such a psychological progression ought to be taken seriously by the legal system, at the macro level in legislative decision?making and at the micro level in the interaction between individual legal officials and HIVpositive persons involved in legal processes. Hence a preventive law approach would. focus on the lawyer’s role as a planer, counsellor and negotiator seeking to maximise the client’s legal opportunities in this difficult public/private interface. The discussion on advance directives, which constitutes the major part of the chapter, usefully outlines the distinction to be drawn between instruction directives (living wills), proxy directives( where a named individual makes health care decisions on behalf of a patient lacking decision?making capacity) and hybrid directives (combining features of both) in the context of the realistic concern of HIV? positive persons that they may at some point experience a form of cognitive/motor impairment.
The theme of legal planning is continued in chapter 5, this time in the context of a discussion of legal planning for unmarried committed partners. The chapter is a response to the fact that alternative domestic arrangements to traditional marriage and increasing rates of cohabitation among unmarried couples have given rise to a range of novel legal issues, including the question of the long?term property and health care planning of unmarried couples with which the chapter is principally concerned. These issues are analysed from a TJ/preventive law perspective. The issue, it would seem, is not primarily whether same?sex couples should be permitted to marry ( the authors point to significant resistance to that notion both from within and outside and gay and lesbian community) but rather how the law should treat those who cohabit but are not married, choose not to marry or choose to significantly delay marriage. The point is made that those who cohabit rather than marry are likely to find themselves in a position of uncertainty with respect to their legal rights. Although the courts will find the existence of implied contract or extend equitable remedies in appropriate cases, generally speaking, unmarried partners do not have clearly defined property rights in the absence of an express agreement. Similarly, in the area of succession, the intestacy laws in many jurisdictions recognise only marital, blood or adoptive relationships in defining the successors of someone who dies intestate, a situation which makes it essential for unmarried partners to execute a will or other estate planning arrangement if they wish to ensure that property will pass to their partner. ( Legislation providing for de facto and same sex relationships has recently been enacted in New Zealand. See The Property (Relationships) Act 1976 as amended by the Property Relationships Amendment Act 2001).
An important focus of this book is the potential impact of TJ and preventive law on the practice of the family law. Chapters 6,7 and 8 are devoted to this discussion and deal with the issues of the effects of divorce on children, ‘collaborative’ law and family law generally . Chapter 6 is a discussion of how preventive lawyering strategies may be used to mitigate the detrimental effects of clients divorces on their children. While it may seem to be a commonplace that divorce has devastating effects upon children, often the dynamics of the divorce process fail to adequately discern its actual effects upon
children. The author, Kathryn Maxwell, suggests that by taking a therapeutically orientated, preventive
approach, the divorce lawyer may be able to mitigate such effects. She surveys empirical research which points to the detrimental effects of divorce and identifies number of primary causes, including instability, inter? parental conflict and the absence of the effective parenting. While such legal constructs as the “best interests of the child “standard, joint custody and divorce mediation may be valuable in preserving children’s interests following divorce, Maxwell notes the fundamental difficulties associated with traditional adversarial advocacy models which may unnecessarily heighten acrimony between divorcing spouses. A problem which the author identifies is that while professional ethical codes mandate “zealous advocacy”(see, eg, ABA, Code of Professional Responsibility, Canon 7 (1969) ), in its purest form such advocacy may actually promote conflict and emotional difficulty and work against informal pressures to produce settlements. Accordingly, Maxwell suggests the use of TJ and preventive law principles which are less adversarial, in order to improve outcomes for individuals and families and, in particular, to mitigate the negative effects of divorce upon children.
This theme is continued in chapter 7 which discusses the novel concept of “collaborative law”. This is described as “a thoughtful, forward ?looking response to the current state of affairs in the area of family law.” Pauline Tesler identifies the fact that increasing numbers of Americans are distrustful of lawyers and avoid engaging their services because of dissaffection with adversarial advocacy and concern that ‘over?litigation’ actually exacerbates intrafamilial stress rather than calming it. The author recognises that a narrow interpretation of the duty of zealous representation often results in a lawyer focussing on measurable outcomes, while largely ignoring the corollary damage caused by a narrow focus. In addition, she notes that lawyer dissatisfaction is itself growing as practitioners themselves become victims of the stresses and “incivilities of litigation.”
It was out of this malaise that collaborative law emerged in the early 1990’s, as a reaction to conventional family law practice by a disillusioned Minneapolis family lawyer. The concept involves two clients and two lawyers working together towards the goal of reaching an efficient, fair, comprehensive settlement of all issues. The retainer agreement of each lawyer specifies that the lawyer is retained solely to assist the client in reaching a fair agreement, and that the lawyer will in no circumstances represent the client if the matter goes to court. In that event the lawyer’s role is to assist in the orderly transfer to adversarial counsel.
What is significant about this new model, which, to a certain extend, is already being practised in some jurisdictions, is that it requires lawyers to acquire a new constellation of understandings and skills in the nature of a professional “retooling”, addressing such issues as behaviour and attitudes, relationship with clients, relationship with other professionals and conduct of settlement meetings. The heart of this mode of dispute resolution is a formal written commitment made at the start of the process in which the parties commit to selecting counsel on both sides who will willingly bind themselves to pre?arranged ground rules. These pre?agreed terms encourage engagement in good faith problem?solving and discourage the casual election of litigation. The putative benefits of this model are that it incorporates vigorous attorney advocacy and advice with a highly sophisticated dispute resolution process which “engages the highest intentions and creativity of the participants.”
Although, as Tesler notes, collaborative law is not a panacea, its potential to preserve amicable and peaceful relationships post divorce and to engender enthusiasm and work satisfaction for collaborative practitioners, are obvious benefits that suggest its likely future adoption in a range of legal settings in the future.
Criminal Practice
Part 111 contains two chapters which deal with issues criminal law practice. Chapter 9 by David Wexler, entitled “Relapse Prevention Planning Principles for Criminal Law Practice” is the shortest chapter in the book. It looks at how behavioural science literature on rehabilitation and relapse prevention may be used by criminal defence lawyers and clients to propose plausible probationary dispositions. The chapter |
takes the approach that a therapeutic/preventive paradigm is equally applicable to criminal law practice. It suggests, perhaps optimistically, ways in which rehabilitative principles and relapse prevention plans in particular, may enable offenders , through observing their own thinking and recognising its (negative) consequences, to learn specific skills for controlling their thinking.
In chapter 10 Bruce Winick applies a therapeutic jurisprudence/preventive law model in redefining the role of the criminal lawyer at peal bargaining and sentencing. However, because of its focus on the 1991 amendments to the US Sentencing Guidelines, the chapter is likely to be of more interest to North American readers than a broader international readership.
Litigation
This section constitutes Part IV and contains only one chapter. This is a discussion by Winick on TJ and the role of counsel in litigation. It has a practical focus, examining such issues as the stress of litigation and how counsel can help to reduce it and developing strategies for achieving settlement of disputes. The chapter finishes with a useful discussion of the psychology of procedural justice, which is both a constitutive feature of TJ and a recognised “vector” within the comprehensive law movement. Winick’s point is that litigants greatly value the dignitary value of a hearing and that there is great value in giving clients ‘voice and validation’ in the selection of legal strategy and in settlement discussions. He suggests that clients who perceive that their lawyers understand them, their interests and values may experience greater litigant satisfaction even if the result is adverse to them and may comply more readily with the outcome of a hearing.
Attorney/client Communications
The theme of Part V of the book is attorney/client communications. This is, in one sense, the most challenging and perhaps the most controversial section in this text because it engages an area of discourse into which lawyers are typically not inclined to venture, namely, their emotions. As Winick oberseves in chap 12, dealing with client denial and resistance in the preparation of advance directives, ‘relational’ lawyers need to learn to be sensitive to the anxieties experienced by clients and to understand the psychological dimensions of the attorney-client interaction. This means an ability to empathise and be open to understand and identify with the emotional struggles clients may experience. Paradoxically, this greater openness and exposure to the affective elements in lawyering, Winick suggests, may accompany a re-examination of the way lawyers define their roles and lead to a better integration of their personal and professional lives. Conceivably, this new approach may act as a foil to the growing disaffection of many lawyers to professional legal practice.
Related concerns are addressed by Marjorie Silver in chapter 13. Silver emphasises the need for lawyers to be aware of problems of transference and counter transference in their dealings with clients. She notes the boundary violations that occur when, for example, a lawyer enters into a sexual relationship with a client and the ensuing risk of counter transference and sexual exploitation. Silver’s answer is that lawyers should learn to confront the emotional dimension in lawyering consistent with the Socratic aphorism that ” the unexamined life is not worth living.” She argues convincingly that there is no clear reason why lawyers should be characterised as “thinkers” rather than “feelers, as if the practice of law were possible within a framework devoid of emotional engagement.
Linda Mills takes up the theme of affective lawyering in chapter 14 and argues that the emotional aliention of lawyers, which is a product of their ‘formalist’ training, has blinded them from meeting the emotional needs of clients. Like Silver, she argues that this deficit in legal training might be remedied through “affective lawyering” which is an outgrowth of evolving psychologically-based approaches to lawyering. In a legal culture which is largely dominated by legal formalisn, the concept of utilising emotional skills and being more “therapeutically engaged” in legal practice may strike many lawyers as curious if not actually untenable. Yet the thrust of this book and the clear message of these chapters is that the practice of law is facing a ’sea-change’ and that an understanding of the wider implications of affective lawyering is necessary for effective legal practice.
Legal Culture
The final section of the book (chapter 15 and Afterword) is devoted to an examination of the relationship between TJ and legal culture. In the closing chapter ( “Therapeutic Jurisprudence and the Culture of Critique”) Professor Wexler contrasts the debate and dialogue methods of resolving conflicts. He argues that whereas the adversarial ‘culture of critique’ privileges argumentation and disparages other approaches of intellectual inquiry, the ‘dialogue’ model is said to move participants from an exclusive focus on rights to more of a focus on” needs, wants and interests.” Wexler’s position is that the ‘dialogue’ culture represents an opportunity to challenge the entrenched assumption that truth emerges from the adversarial conflict between two “polarised, warring extremes” and often requires participants to ” put aside their consciences and natural inclination towards human compassion.” (p 452).
TJ is portrayed as fitting within a new framework of “ameliorative measures” which are beginning to gain support within the legal profession and mainstream society. These are expressed, for example, in such measures as the role of apology in tort and other settings (eg medical law). Wexler concludes with the expressed hope that bringing an explicit ethic of care into law practice will better serve clients, humanise law practice, contribute to lawyer satisfaction and attract back to the profession lawyers dissaffected by the culture of critique.
In his concluding paragraph Wexler notes that growing dissatisfaction with the ‘argument culture’ has led to the emergence of new approaches to legal dispute resolution centring around the alternative dispute resolution (ADR) movement., but including TJ, preventive law, restorative justice, holistic lawyering and creative problem solving. He thus provides the link with the concluding Afterword, ” The Role of Therapeutic Jurisprudence within the Comprehensive Law Movement”. As Susan Daicoff explains, comprehensive law is the generic name now given to the new dispute resolution ‘vectors’ identified by Wexler . In Daicoff’s view they herald a ‘new era’ in the legal profession.
While this is a bold claim, it is nonetheless true that TJ and the other comprehensive law ‘vectors ‘are beginning to impact traditional approaches to legal practice and dispute resolution . At the Second International Conference on Therapeutic Jurisprudence held at the University of Cincinnati in May 2001 Natalie Des Rosiers, a legal academic and the president of the Law Commission of Canada, suggested that TJ is necessary to any enterprise in law reform. Ms Des Rosiers emphasised that TJ is capable of ‘capturing’ law as a living experience by applying insights as to how people behave, and through a multi-disciplinary, broad-based approach, exploring the indirect affects of law on the lives of people.
This claim for TJ is consistent with the overall thrust of this book. TJ is as much as anything a reform movement and as this book demonstrates, offers the potential to liberate legal practice and legal values from the constraints of ‘tabulated legalism’ through a mode of legal analysis which is at once dynamic and visionary while also intensely practical. “Practicing Therapeutic Jurisprudence” is an engaging and illuminating book and a most worthwhile addition to the growing literature on this developing school of legal discourse. Above all it is a text that offers hope to those who despair of the prevailing adversarialism in Western legal culture.
