5. Education

5.1 Legal and Judicial Education

Lawyers and judges have traditionally been trained for operation within a largely adversarial approach to the law. Students entering law school commonly have an adversarial conception of the law based on their experience of dramatic portrayal of court cases in popular literature and the media. Law teaching reinforces an adversarial approach through an isolated study of cases decided on appeal involving a dispassionate analysis of fact and law. Law teaching has not taught the role of emotions in the practice of law, teaching a dispassionate approach to the legal practice and judging. The teaching of interpersonal skills has also been largely lacking.

Therapeutic jurisprudence suggests that legal and judicial education should be more comprehensive. While knowledge of the law and analytical, writing and adversarial court advocacy skills are important, it asserts that interpersonal skills are also vital. The ability to listen, to be sensitive to the emotions of others, to express empathy, to be aware of body language, to be able to communicate effectively and sensitively with others are important interpersonal skills that assist in a therapeutic legal and judicial practice. They enable both lawyer and judicial officer to promote voice, validation and respect – which research has found promote litigant satisfaction and respect for the justice system.

Knowledge of the impact of court and other legal processes on wellbeing, of findings from the behavioural sciences as to processes that can be used to minimise a negative impact and promote a positive impact upon wellbeing, of principles underlying behavioural change and mechanisms that promote it, of the nature of problems that commonly underlie legal problems in specific areas – such as substance abuse and domestic violence – of cultural issues that impact upon participant participation in the legal system and their wellbeing should be important aspects of the education of judicial officers and judges.

For lawyers taking a therapeutic approach, the ability to work in multi-disciplinary teams, to take a creative, holistic, problem-solving approach, counselling and negotiation skills and an awareness of the broad range of options available to resolve disputes are important. Such knowledge would also assist judicial officers who wish to take a problem-solving approach.

Work in this area has focused on identifying skill sets needed for therapeutic judging and legal practice and the development of law school programs – including clinical programs – for the training of law students and on continuing education and training programs for members of the judiciary and lawyers in the theory and practice of therapeutic judging and legal practice.

5.2 Legal Practice

Therapeutic jurisprudence has significant implications for legal practice, offering an approach that promotes a more comprehensive resolution of legal problems and a more personally rewarding experience for both client and lawyer. It suggests that legal problems need to be considered in the context of the client’s overall wellbeing. Of course, the best interest of the client has always been a primary concern of lawyers and wellbeing is often a part of that consideration. However, therapeutic jurisprudence suggests that findings from the behavioural sciences can be used to enable a lawyer to take a systematic and comprehensive approach to promoting client wellbeing in all cases.

The most visible illustration of therapeutic legal practice is in the work of lawyers representing clients in problem-solving courts. However, client wellbeing is an integral part of a diverse range of legal problems. For example, family law litigation concerns not only financial and child issues but also the wellbeing of separating parties and their children and the need to promote healing.

A chronic drug user may secure an acquittal in a criminal case due to inadequacy of evidence or a deficiency at law. A civil litigant feuding with a neighbour may secure a win in a dividing fence case. But in each case, the client is likely to have ongoing legal problems if the underlying issues are not addressed. In some cases, the very litigation can amply points of difference and compound legal and associated problems. How can a lawyer help the client to resolve such issues? This area is a part of therapeutic jurisprudence.

Therapeutic legal practice overlaps with other approaches to advocacy such as preventive law – which seeks to identify and address sources of future potential legal problems – collaborative law – which seeks to resolve family law problems through non-adversarial, non-litigious, collaborative advocacy and holistic law – which seeks to address all dimensions of a legal problem.

Therapeutic jurisprudence also considers the adverse impact of legal education and adversarial legal processes and practices on lawyer wellbeing and suggests reforms to address problems in this area.

5.3 Court Administration

Courts consist of judicial and administrative sides working together to promote the objectives of the courts as defined in legislation. The judicial side of the court is mainly concerned with the determination of disputes through the ascertainment and application of the law to the facts, defined in court processes, to formulate a proper outcome.

With the advent of problem-solving courts and increasing interest in therapeutic jurisprudence in courts of varying jurisdiction, there are differing demands placed on court staff and on administration generally. Courts operate within financial constraints and must go through the usual government budgetary processes to secure funds needed for their operation. Securing funds for innovative therapeutic jurisprudence based programs in the presence of competing priorities is a challenge court administrators perennially face.

Some therapeutic innovations introduced by magistrates have required court staff to interact and work collaboratively with court stakeholders and community agencies. Some also interact more closely with court participants than before. For example, the Perth Drug Court’s judicial support officers conduct the information session for new applicants and also speak with participants in connection with court proceedings.

What is the impact (if any) of court staff/participant interaction on the participant and the goals of the court? What interaction should there be? What training should be provided to staff involved in a therapeutic jurisprudence based court program? What staff should be involved and what skills do they need?

Exploration of therapeutic jurisprudence and court administration in the Australasian context is in its early stages. For example, a preliminary study found that a therapeutic jurisprudence based court program promoted staff satisfaction. Given the importance of the work of court administration for the overall functioning of courts, it is an area that is worthy of further research.