Therapeutic Jurisprudence for the family lawyer

Guest blogger Taylor LoSchiavo, Center for Families, Children and the Courts, Student Fellow (2016-2017) writes…

Any legal proceeding has the potential to be life changing; however, family law proceedings, in particular, can change the basic family structure for the parties.  One family can become two, which could then become three or more families.  This is not to suggest that such a division is always negative, as it may be needed for the health and safety of the parties, but it is nonetheless life changing in a way that differs from other civil proceedings.

The role of the lawyer/attorney in family law cases during a time of instability, physical division, and financial distress is vital.

Family law cases often involve emotional and mental battles that address child custody disputes, substance abuse issues, and domestic violence, to name a few.   The parties are not merely losing assets, they are losing the very structure of their family as they know it. This deterioration of a former way of life, especially for children and spouses facing contested cases through no fault of their own, is likely one of the most challenging experiences the families will ever face.

Therapeutic jurisprudence focuses on therapeutic and anti-therapeutic factors, including ways in which the legal system can be used to create a more positive role in people’s lives.  While therapeutic factors should not dictate legal outcomes, they should always be considered and factored into the legal equation.

The law almost always acts either therapeutically or anti-therapeutically for parties in the system, and this is no different in family law cases.

Using the law to create more positivity for the parties in any intense litigation can be a challenging but worthwhile endeavor.

Although all legal actors in the court system should promote ideals of well-being, the family law attorney often has the most interaction with the client and families. As a result, he or she is in the best position to utilize the restorative ideals behind therapeutic jurisprudence to better serve clients and truly make a difference.

In litigation that very often promotes outcomes with no clear-cut winners or losers, the family law attorney’s “bedside” manner is important, to say the least.

The way in which the family law attorney counsels and mediates can often be the single greatest determinant regarding whether the parties settle amicably or head to court for a nasty battle that may forever traumatize them.

The ability of the family law attorney to both successfully advocate for a client’s rights while considering the impact on children and the other party is an arduous task, and it should be conducted with compassion, respect, active listening, and an overall foundation in the notion of therapeutic jurisprudence.

About this blog:

Taylor LoSchiavo is a 2016-2017 Student Fellow with the Center for Families, Children and the Courts (CFCC).  Taylor has participated in a three-credit law school course where Associate Professor Barbara Babb teaches about cutting edge family law and family justice system reform, including the theories underlying the work of CFCC.  Since Therapeutic Jurisprudence is at the core of all the work of the CFCC, that is the first concept the students read about, discuss, and attempt to apply/incorporate into their thinking, lawyering, and writing.  One of the course requirements is that each student must write a blog related to something they have learned in the course

Resources for lawyers interested in developing their TJ approach:

Past blog:  Therapeutic Jurisprudence for defence lawyers

Article:  Brooks & Madden, Relationship-Centered Lawyering

Article: Exploring Law-Client Interactions

Book: David B. Wexler, Rehabilitating Lawyers: Principles of Therapeutic Jurisprudence for Criminal Law Practice (2008). Digital version also available on Kindle.