Therapeutic Jurisprudence founder, Professor David Wexler, calls on us to collect, disseminate, digest and employ creative TJ practices and techniques…
When we speak of TJ “practices and techniques”, we refer to the “roles” of legal actors—typically judges, lawyers, and others working within the legal realm. In other terminology, the practices and techniques can be seen as the “therapeutic application of the law”(TAL), in contrast to the “therapeutic design of the law (TDL), which relates to the operative legal landscape of rules and procedures.
To date, most TJ writing regarding “roles” occurs in the judicial context, typically in the criminal law and problem-solving court area (but recently also in the areas of child protection, public housing law, and more). The judicial role, in particular, has received the bulk of the attention (see for example this blog’s TJ Court Craft Series). More needs to be done, as we will see, but this area is fairly well-developed.
Not so when we turn our attention to lawyers and how they carry out their role. Here, there is another TJ conceptual framework. This framework flows from the perspective of “preventive law”, where a lawyer will discuss with the client whatever “legal soft spots” exist and need to be considered (eg, x number of witnesses for a will, etc). TJ comes into the picture by expanding our interest into what is called “psycholegal soft spots”, areas where legal issues, interventions or procedures may have negative (or positive) implications on clients’ psychological well-being. These will not invalidate a measure; instead, they are the possible emotional or psychological bag and baggage that may accompany the proposed legal action—they may create or accentuate hurt and hard feelings, jealousy, sibling rivalry, embarrassment etc
In what may be regarded as “zealous counseling” (thanks for Bob Ward for the term), the lawyer here will offer to discuss with the client the sorts of strategies that might be employed to avoid or lessen the pertinent psycholegal soft spots.
For example, a mother might, in her will, decide to leave more of her property to her struggling daughter than to her prosperous son. Or she might choose to leave property outright to one of her adult children but to leave it in trust for her other adult child, the one who has had a running battle with alcoholism and drug abuse. While these dispositions may be fully acceptable under the prevailing law (and thus not constitute true ‘legal’ soft spots), they may well ruffle feathers within the family. With a TJ orientation, the sensitive lawyer might thus want to raise with the client these ‘psycholegal’ soft spots, as well as possible ‘strategies’ for softening them, such as leaving a letter of explanation to the children.
These strategies can involve ‘opportunity’ spots as well — such as how an HIV positive client, now drafting a will, a living will and a health care directive, might use the preparation of those documents and the naming of a surrogate decision maker as an opportunity to contact and attempt a reconciliation with a fallen away family member. In this so-called “HIV family reconciliation case”, after raising this possibility with the client, the lawyer might say, “ If you’d like to think about this course of action, we can surely hold off on the naming of a surrogate decision-maker for a month or so, and we can decide how to proceed on your next office visit.”
We now have reached the point where a number of lawyers and judges are familiar with TJ and its conceptual frameworks, and some of those lawyers are indeed starting to counsel about “psycholegal soft spots” that are troubling or that may present opportunities. The problem then becomes how to capture this creativity and disseminate it.
With the first area discussed here—judicial roles—I have learned of the progress in a haphazard way—often by off-hand remarks during a conference when a TJ-oriented judge, participating in a panel, mentions a technique applied:
To hammer home the importance of giving voice to the young man about to be sentenced to probation, I invited him to sit next to me on the bench while we reviewed and discussed together the conditions about to be imposed.”
or “I didn’t want to compel him to enter a treatment program, but I sentenced him to do some work at the program as part of a community service order. My hope was that, after feeling comfortable there and with the staff, he might simply volunteer to participate.”
or “ I felt compelled to order a jail sentence, although a very short one. Since, during the hearing, he had mentioned that he hoped to tackle his addiction problem soon, I immediately wrote him a letter saying that, if he would like, I could have my trained staff visit him in jail and review with him some of the community treatment options.”
or: “To make sure she knew how to get to the program I was requiring as part of the probationary sentence, I had handy a map where she was able to mark her residence as well as the address of the program, and sketch out how she planned to get from point A to B.”
We need to devise a way to collect, comment upon, and distribute these sorts of creative techniques coming now very much from the world of practice. This will be especially difficult, but extremely important, when we move from the judicial role to the role of the lawyer working with “psychosocial soft spots” and opportunity spots. There, without careful probing or other techniques, we are unlikely even to learn of the interesting techniques being employed by particular practitioners.
If we are at all successful, I can someday imagine a new type of “ case law” with names like “the HIV family reconciliation case”, the “community service at the treatment program case”, and the like—illustrations that could be regularly sprinkled into law school casebooks/coursebooks following the standard judicial opinions and statutory provisions laying out the pertinent law in the area.
But that is someday. What about today??
Elsewhere—and nearly a decade ago(!)—I presented some options for encouraging the collection of such examples, such as at ‘captive audience’ events like continuing legal education programs.
The article in which all this was presented—in only a handful of pages in the Monash Law Review—is available here, and I hope interested readers will access and look over those few pages.
For now, I would like to suggest that this very TJ in the Mainstream Blog can operate to encourage the development and collection of the various techniques.
Let’s get started now!
TJ lawyers – share your practices and techniques by writing a blog that we will share via the TJ Lawyering Series or simply email firstname.lastname@example.org and we will compile the ideas we receive.
Other legal actors? Prosecutors, non-judicial decision makers, others?....share your TJ practices and techniques via email@example.com