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.

Resources

Birgden A, 'Dealing with the Resistant Criminal Client: A Psychologically-Minded Strategy for More Effective Legal Counseling' (2002) 38 Criminal Law Bulletin 225.

Curran L, 'Making Connections: The Benefits of Working Holistically to Resolve People's Legal Problems' (2005) 12 E Law - Murdoch University Electronic Journal of Law, http://www.austlii.edu.au/au/journals/MurUEJL/2005/5.html.

Daicoff S, ‘The Future of the Legal Profession’ (2011) 37 Monash University Law Review 7.

Douglas K, 'Steering Through Troubled Waters?' (2007) 81(5) Law Institute Journal 30.

Evans A and King MS, 'Reflections on the Connection of Virtue Ethics to Therapeutic Jurisprudence' (2012) 35 University of New South Wales Law Journal 717.

Evans A, 'Life and Death Matters' (2008) 83(12) Law Institute Journal 76.

Gutman J, ‘The Reality of Non-adversarial Justice: Principles and Practice’ (2009) 14(1) Deakin Law Review 29.

Hampel G, 'Therapeutic Jurisprudence - An Australian Perspective' (2005) 17 St Thomas Law Review 775.

King MS, 'Therapeutic Jurisprudence in Australia: New Directions in Courts, Legal Practice, Research and Legal Education' (2006) 15 Journal of Judicial Administration 129.

King MS, 'Therapeutic Jurisprudence and Criminal Law Practice: A Judicial Perspective' (2007) 31 Criminal Law Journal 12.

Potter D, 'Lawyer, Social Worker, Psychologist and More: The Role of the Defence Lawyer in Therapeutic Jurisprudence' (2006) 1 eLaw Journal (special series) 95, https://elaw.murdoch.edu.au/archives/issues/special/lawyer.pdf.