Q&A: Practicing Comprehensively Human Law

An interview with Susan Daicoff, associate professor of law at Florida Coastal School of Law. She has worked as a lawyer in private practice and also trained as a psychologist.

NUTSHELL: A movement is underway to bring together a variety of alternative approaches to law practice, all of which emphasize the human side of lawyering. It may prove to be just what is needed if we are to further reduce disaffection within the profession.

Q: Susan, until now you have been best known as the legal academic who has done the most work on the lawyer personality-- that is, what lawyers are like and how they got to be that way. Can you tell me a little bit about how you moved from that area of interest to your current focus on what you call Comprehensive Law? Is there a connection?

Daicoff: Around 1988, when I quit practicing law the first time, I was amazed at the number of my attorney friends who asked in hushed tones, "How did you find the nerve to do it? What are you going to do now?" suggesting to me how much they wanted to quit but felt they couldn't. So, when I was in graduate school in the late 1980's and early 1990's, I was determined to figure out why so many lawyers felt this way -- trapped -- wanting to quit but unable to do so.

That's what motivated me to investigate every piece of data I could find about the "lawyer personality." I thought that perhaps there were some personality characteristics that explained this phenomenon, along with other odd things I noted about lawyers.

In the course of doing this work, I realized that what I found out about lawyer personality suggested that many of the comments and suggestions of academics, bar leaders, and others about how to cure the "ills" of the legal profession (deprofessionalism, low public opinion, lawyer dissatisfaction and distress) -- were probably unworkable. Most of these suggestions conflicted directly with the traits that probably predominated among lawyers.

Around March of 1998, as a law and psychology professor, I attended a therapeutic jurisprudence symposium. My talk there argued that the traditional, adversarial practice of law was likely to be counter-therapeutic for many lawyers, meaning those with traits atypical of most lawyers. Specifically, empirical studies indicate that lawyers with a "feeling" decision-making preference or a moral decision-making style known as an ethic of care are likely to be in the minority in the legal profession. These lawyers also appeared to me to be the most vulnerable to dissatisfaction and mental distress, and also to have the most appropriate skills for practicing therapeutic jurisprudence.

At the same time, I realized that many other new developments in the law were sympathetic with the values and goals of therapeutic jurisprudence. I saw them as all moving in the same direction, towards a similar goal. I also thought that they all could benefit an atypical lawyer by allowing him or her to practice law in a way that fit with his or her decision-making preferences and by maximizing the value of his or her atypical proficiencies and sensibilities.

Since that time, I have been developing this seed of an idea into the thought that all these developments, moving in the same direction, or "vectors," really signified a deeper, more global shift in the legal profession towards what I am now calling "comprehensive law practice." It was through my identification of a group of lawyers within the profession who are in a psychological minority in the profession, my hypothesis that these lawyers are the most vulnerable to dissatisfaction and distress as lawyers, and my thought that therapeutic jurisprudence and the other vectors of the comprehensive law movement were extraordinarily appropriate for these lawyers, that I have moved from "lawyer personality" to the "comprehensive law movement."

It is my hope that the comprehensive law movement will quickly coalesce and become more visible to the many practicing lawyers who possibly have some traits atypical to the majority of the legal profession -- who might be dissatisfied with what they are currently doing. Even if these individuals are not dissatisfied or distressed with their current work, they may find a better fit between their particular strengths and abilities and the ways of practicing and administering law found in the comprehensive law movement.

Finally (and not incidentally), due to its emphasis and focus, the comprehensive law movement carries the promise of more courteous and respectful interactions between legal professionals and greater client satisfaction with lawyers and the legal system.

Q: It sounds like you see real reason for hope in what you're calling Comprehensive Law. Lets get more specific about these "vectors" that make it up. What are they, and what do they have in common?

Daicoff: I do indeed see real hope in the comprehensive law movement and its vectors, for law practice, judging, and legal education.

I'll get to the vectors in a minute, but let me first say what they all have in common. They all share two common characteristics, although most people intuit that they are all part of the same family. Bruce Winick makes a lovely analogy to a family here; he says that the vectors all share a family resemblance but are each distinct individuals. Still, when you put them all together for a group photo, they are obviously "related!"

The two intersections are (1) a goal to optimize human well-being and (2) a focus on what Pauline Tesler calls "rights plus," which means caring about things beyond the strict legal rights of the parties involved.

All of the vectors seek to provide an outcome to the legal matter that is positive, beneficial, and promotive of human well-being or personal growth -- in other words, moves towards optimal mental or emotional health as opposed to mental or emotional distress or dysfunction. Of course, people are going to quibble about what that is, but the psychologist side of me believes that it is easier to identify than we think. Second, in solving the client's problem, they all consider factors other than the strict legal rights, duties, and obligations of the parties; they look at things like the people's needs, resources, goals, strengths, weaknesses, relationships, beliefs, values, morals, economics, communities, feelings, etc. Those extra-legal concerns are factored into the strategies and outcomes that the lawyer and client -- together -- agree to work towards.

The vectors are (in alphabetical order):

• collaborative (divorce) law (practicing attorneys Pauline Tesler in California & Stuart Webb in Minnesota);
• creative problem solving (The McGill Center for CPS directed by Professor James Cooper at California Western School of Law);
• drug treatment courts and other specialized courts (associated with Judge Peggy Hora in Alameda County, California)
• facilitative mediation;
• holistic justice (the IAHL, Bill Van Zyverden of Vermont and John McShane of Dallas);
• preventive law (Professor and Dean Emeritus Edward Dauer at University of Denver College of Law; The Louis Brown Center for Preventive Law directed by Professor Thomas Barton at California Western School of Law);
• procedural justice (Tom Tyler's empirical work);
• restorative justice (Professor Mark Umbreit's Center for Restorative Justice at the University of Minnesota School of Social Work);
• therapeutic jurisprudence (Professor David Wexler of the University of Arizona College of Law and the University of Puerto Rico School of Law and Professor Bruce Winick of the University of Miami School of Law, and others);
• the integration of therapeutic jurisprudence and preventive law (TJ/PL - Dennis Stolle and others);
• transformative mediation (Professor Robert Baruch Bush of Hofstra University Law School and Joseph Folger of Temple University's communications department).

Many have suggested that I add vectors, such as the contemplative practice movement (the Fetzer Institute, the Yale meditation project, Professor Leonard Riskin at the University of Missouri-Columbia), law and socioeconomics (Professor Jeffrey Harrison of the University of Florida), affective lawyering and rebellious lawyering, Renaissance Lawyer trainings, law and religion, spirituality and law, and others. I have not yet investigated these suggestions but am open to hearing about vectors I've overlooked or not encountered yet.

Q: I know you have given talks about Comprehensive Law at various conferences and, I would imagine, to your students and colleagues. What has the reaction been?

Daicoff: Overwhelming. Most of the law students that hear about Comprehensive Law and the vectors are very interested, inspired, and hungry to hear more. They say things like, "Wow, I never knew anything like that even existed. What you describe is exactly what I want to do with my law degree." Perhaps not surprisingly, older students, well-established lawyers, and nontraditional lawyers are often the most receptive. And judges are extraordinarily open to it, having seen the dismal results of traditional law practice over and over again.

"What you describe is exactly what I want to do with my law degree."

Some lawyers are concerned about how such practice is actually done, within the context of our current models for and expectations of lawyers. Their concerns are usually helped by a good reference to one of the many comprehensive lawyers around the country who are not only successful at this form of practice, but successful and respected within the profession. Here, I think of Pauline Tesler, Stewart Webb, John McShane, Richard Halpert, Bill Van Zyverden, Judge Anne Kass, Judge Peggy Hora, Judge Randall Fritzler as people in the active practice of law or judging who embody the principles of comprehensive law.

Maybe it's not surprising that law professors are often the most resistant to the comprehensive law movement. They are convinced that practicing law this way runs afoul of the ethical codes' zealous advocacy mandate. However, the ethics codes actually pave the way for lawyers to advise their clients about extralegal concerns and bring their entire wisdom and experience to bear when advising clients. My esteemed colleague at Capital University Law School, Michael Distelhorst, and dean emeritus of the University of Denver, law professor Edward Dauer, expertly argue that not only is practicing law this way (comprehensively) consistent with the ethics codes, but that it is practically required.

Those critics who are not concerned about ethical codes then point to the primacy of legal rights and argue that lawyers should not ever create solutions to legal problems that do not maximize the client's legal rights. I assume this means regardless of the emotional or relational cost to the client of maximizing those rights. Here, I would refer to the documented public dissatisfaction with lawyers and the legal system, to procedural justice's empirical findings about what clients really are satisfied with in litigation processes, and to the societal consequences of adhering to entrenched, rights-based positions in all cases.

Certainly, comprehensive law is not appropriate for all cases, all clients, or all lawyers; in some cases, hard-ball, adversarial, rights-based litigation is psychologically, legally, and morally necessary. All comprehensive law offers is a broader spectrum of solutions and processes for resolving human conflicts and human legal problems.

Q: Do you see the "atypical" lawyer you've identified in your work -- these "ethic of care" people -- as embracing one of the vectors and working in that area, or somehow mixing several?

Daicoff: I have long believed, despite conflicting empirical data on this question, that lawyers with atypical traits are the most prone to mental distress and job dissatisfaction in the law. Alternatively, it is possible that lawyers with the most extreme decision-making preferences (e.g., those whose Myers-Briggs scores are extremely oriented towards Feeling or extremely oriented towards Thinking, rather than more evenly balanced between the two preferences) are the most likely to become distressed and dissatisfied.

Either way, I think it is imperative for lawyers with atypical traits (such as a preference for Feeling on the MBTI, an ethic of care, altruism, and/or non-competitiveness) to find a niche in the law that celebrates his or her atypical traits. These lawyers need ways of practicing law that utilize their traits as assets rather than hide them as liabilities. The Comprehensive Law model and its vectors provide an incredible opportunity for lawyers with one or more of these atypical traits to use those characteristics to be most effective in servicing clients and solving legal problems.

I think the comprehensive law model and its vectors are incredibly well-suited for lawyers who do not have the entire, typical "lawyer personality." If this is true, and if lawyer distress is indeed linked to atypical traits, then the comprehensive law movement has positive implications for the lawyer distress crisis we have in the legal profession today.

The atypical lawyer could choose to exclusively practice comprehensive law, could choose to use the approach in some of his or her cases, or could use the approach in some cases for some of the time, switching to the traditional approach if necessary. Or, law firms could decide to simply add a comprehensive law department in which the lawyers took this approach to solving clients' problems, and the firms could refer the clients or cases in and out of that department as necessary and appropriate.

Or, entire firms could practice law this way, referring clients to other firms for a more traditional approach when necessary and appropriate. Certainly, not all cases or clients need the comprehensive approach at all times. The traditional approach to law will still probably continue to dominate and the majority of lawyers are best-suited, personality-wise, to practice traditional adversarial law. However, I believe there is a permanent place for comprehensive lawyers and comprehensive approaches, in our profession.

Q: What's next for you?

Daicoff: I'll be teaching Comprehensive Law as a law school course for the first time next semester. David Wexler is teaching a similar course and so is Bruce Winick. We are just beginning to bring these approaches into the law schools, and so far the students' response has been one of relief, recognition, and welcome. We have to work against a backlog of traditional thought in the legal profession, but more and more people are becoming aware that there is a better way.