Q&A: The Psychologically-minded Lawyer

An interview with Bruce Winick, professor of law at the University of Miami School of law and author, with David Wexler, of Law in a Therapeutic Key: Developments in Therapeutic Jurisprudence.

Key Points: Everything we do in the legal system has psychological implications for those involved; understanding them enhances the likelihood of satisfaction for clients, lawyers and judges.

Q: Bruce, what is Therapeutic Jurisprudence?

Winick: Therapeutic jurisprudence is the study of law's healing potential. It's a mental health approach to law that uses the tools of the behavioral sciences to assess law's therapeutic impact and, when consistent with other important legal values, to reshape law and legal processes in ways that can improve the psychological functioning and emotional well-being of those affected.

Q: Can you give me a brief example or two of what that might look like?

Winick: One example is tort law. We've increasingly gone in the direction of no-fault in the tort area. This emphasizes compensation, but tort victims often crave other things, like apology and a process that puts the blame on the tortfeasor and relieves them [ie., the victims] from responsibility. The resolution of tort cases therefore should include some process that allows this to occur.

Another example is the "Don't ask, don't tell" policy adopted for the Armed Services. This has been a controversial policy, but one consideration rarely discussed is the impact it has on gay members of the military forced to remain in the closet and to suffer the psychological costs of living a lie. TJ would add this dimension to the public policy debate.

Q: Where would you say we are right now on a spectrum that goes from pure social science theory, on the one hand, to real-life daily application in courts and in law offices on the other?

Winick: TJ started out as an academic approach to reforming the law, and in the early days, as a result, was known mainly by scholars in law, psychology, and the social sciences. In recent years, however, the emphasis has been on how law is applied by various legal actors such as judges, lawyers, police officers, etc. Now TJ is getting increasing attention from judges and lawyers.

David Wexler and I have been lecturing throughout the country to judicial audiences, including the National Association of Women Judges, The California Judiciary, and the American Judges Association, which recently devoted its semi-annual meeting to the theme of therapeutic jurisprudence.

More and more, judges are recognizing that how they behave as judges can have an important impact on the psychological functioning and emotional well being of the people who appear before them. This is certainly true in the increasing number of specialized "treatment courts"--such as drug court, domestic violence court and mental health court. But it's true too for judges of general jurisdiction dealing with civil, criminal, family, and juvenile issues.

Q: And lawyers?

Winick: There has been a parallel development with lawyers. David and I have been speaking more frequently to lawyers' groups about how they can increase psychological sensitivity and interpersonal skills within the attorney/client relationship.

To lawyers who are experiencing increased professional burnout and anxiety, we offer an alternative vision of lawyering. It's one in which lawyers can practice preventive law, avoiding problems through legal checkups and the use of creative problem solving, legal drafting, and alternative dispute resolution techniques. It's a vision of lawyers as members of a helping profession who practice law with an ethic of care and a heightened sensitivity to the emotional aspects of the professional relationship. The result can be increased lawyer and client satisfaction, as well as enhanced mental health for both lawyer and client.

TJ has touched a responsive chord in judges and lawyers who seem increasingly interested in reframing their professional roles in a more humanistic and satisfying direction.

Q: Many people might think that in certain contexts and settings TJ concepts make sense and, indeed, might be relatively easily applied. But those same folks might assume that in litigation all bets would be off. After all, what role can "the study of law's healing potential," as you've defined TJ, have in the heat of battle?

Winick: I've just written a chapter for our new book on TJ and lawyering, called "Therapeutic Jurisprudence and the Role of Counsel in Litigation." Litigation can be an intensely emotional experience. Testifying at trial or in a deposition is enormously stressful. Clients don't understand how the legal process works, and their uncertainty alone provokes stress.

Lawyers can do much to reduce this stress by explaining to clients what is likely to occur and why, thereby giving them what the social cognition literature describes as "information control." When we understand what is likely to happen and can adjust our expectations accordingly, the stress is reduced and we can cope better with even the most stressful events.

The literature on the psychology of procedural justice shows that people involved in hearings and trials value "voice," the opportunity to tell their story, and "validation," having it taken seriously by the judge. They also value being treated with dignity and respect by judges and lawyers who they perceive as acting in good faith with good intentions.

When litigants are treated in these ways, they experience a much higher degree of satisfaction with the process, even if they lose, and comply more readily with the result. The trial lawyer can do much to help the client achieve these procedural justice values. Lawyers sensitive to these lessons can act in ways that will help to make litigation a more satisfying experience to their clients whatever the result.

In addition, lawyers can do much to help their clients understand the value of settlement and the different ways of achieving it. The client may be too angry or be laboring under denial or other psychological reactions that might prevent them from engaging in settlement discussions. Attorneys who are psychologically sensitive can help their clients deal more effectively with settlement discussions and the development of trial strategy should it become necessary.

In short, trial lawyers have much to learn from therapeutic jurisprudence that can be extremely useful to their clients in the litigation process.

Q: A central concept in TJ is that of psycho-legal soft spots. What does it take for a lawyer to become attuned to their existence and then spot them when they arise?

Winick: Lawyers need to be psychologically sensitive to the client's emotional reactions -- or likely emotional reactions -- to various issues and procedures occurring in the legal process or the attorney/client relationship. They need to understand a little psychology in order to be effective in interviewing and counseling their clients, just as lawyers practicing in the antitrust area need to know a little economics.

This doesn't mean that lawyers need to be clinicians or therapists, but they do need to be psychologically-minded, to be alert to their clients' emotional reactions, to understand psychological principles like denial and transference, to be good listeners, and to pay attention not only to their clients' words, but to their non-verbal forms of communication -- their tone of voice, facial expression, and body language.

They need to be relational lawyers, affective lawyers, and therapeutically oriented lawyers. They need better interpersonal skills and interviewing and counseling skills than they have traditionally been taught in law school. These are skills and techniques that can be taught, and in our view, should be part of legal education.

Q: How do the TJ implications change depending on whether your client (or the other side) is a company rather than an individual? Can one be therapeutically inclined toward a corporation?

Winick: When your client is a corporation or other organization, therapeutic jurisprudence possibilities still very much exist. I wrote a recent article that will be published later this summer entitled "Redefining the Role of the Criminal Defense Lawyer at Plea Bargaining and Sentencing: A Therapeutic Jurisprudence/Preventive Law Model," which contained an entire section on representing organizations.

The federal sentencing guidelines contain special rules on sentencing for corporations and other organizations that offer a substantial discount in the fine imposed if the organization has a compliance plan in place. This puts a premium on counseling such clients about the need for developing compliance plans and relapse prevention plans, a job for which the TJ preventive lawyer is well suited.

A corporation or other organization, we should remember, is composed of individual officers, directors, employees, or members. While the corporation or organization itself is just a legal entity, the individuals that direct and work in it are people with their own psychological needs and interests. As a result, the lawyer representing such an organization can and should act therapeutically when dealing with these individuals.

Q: What is your impression of how using TJ principles is affecting lawyers' and judges' sense of satisfaction in their work?

Winick: Lawyers who already use TJ in their practices report very enthusiastic results, both for themselves and in terms of their clients' emotional well-being and satisfaction. John McShane, whom you profiled recently in the ABAJ, is a leading example. John tells me that he now tries to limit his practice to therapeutic jurisprudence and preventive law, and that applying this approach has brought him immense personal and professional satisfaction.

Similarly, judges using TJ in their work also report a sense of reinvigoration, and credit it as an antidote to judicial burnout. They feel much better about the judging process as a result.