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.
Freiberg A, 'Non-Adversarial Approaches to Criminal Justice' (2007) 16 Journal of Judicial Administration 205.
King MS, 'Therapeutic Jurisprudence in Australia: New Directions in Courts, Legal Practice, Research and Legal Education' (2006) 15 Journal of Judicial Administration 129.
O’Brien MT, ‘Facing Down the Gladiators: Addressing the Law School’s Hidden Adversarial Curriculum’ (2011) 37 Monash University Law Review 57.
Spencer P, ‘Legal Studies: Therapeutic Jurisprudence in the Mainstream’ (2014) 39(4) Alternative Law Journal. Available at SSRN: http://ssrn.com/abstract=2550171