Therapeutic jurisprudence and listening

Suffolk Law School hosted a workshop Friday, April 11, on “The Study and Practice of Law in a Therapeutic Key: An Introduction to Therapeutic Jurisprudence.”  Therapeutic jurisprudence has been discussed and debated since the 1980s, and a working formal definition has emerged, quoted here from Professor David Yamada’s blog post about the workshop at Suffolk:

Therapeutic Jurisprudence (TJ) concentrates on the law’s impact on emotional life and psychological well-being. It is a perspective that regards the law (rules of law, legal procedures, and roles of legal actors) itself as a social force that often produces therapeutic or anti-therapeutic consequences. It does not suggest that therapeutic concerns are more important than other consequences or factors, but it does suggest that the law’s role as a potential therapeutic agent should be recognized and systematically studied.

TJ has been applied in specific contexts such as mental-health diversion programs, juvenile-offender programs, workers’ compensation, medical malpractice, and other areas. Apart from specific areas of law and problems, therapeutic jurisprudence has been explored as an overall mindset for the practice of law. TJ founders professors David Wexler and Bruce Winnick have written (Hein sub. req’d) that TJ asks “whether the law’s anti-therapeutic consequences can be reduced, and its therapeutic consequences enhanced, without subordinating due process and other justice values.”

Listening seems inextricably linked with a therapeutic approach to anything involving other people. Here are some preliminary thoughts on therapeutic and anti-therapeutic approaches related to listening skills that one might see in law practice and legal proceedings:

Therapeutic Anti-therapeutic
Comfortable environment Threatening, high-stakes environment
Listeners use receptive body language Closed body language
Sufficient time for sharing one’s story Time constraints cutting off story
Listener demonstrates understanding such as by paraphrasing key points Listener responds immediately with advice and instruction
Listener has expertise or experience in the situation Listener doesn’t “get it”
Responses help identify solutions Responses are “gotcha” moments
Door is open for sharing further information Pressure to remember and include all points in one sitting

I’d love to hear from law professors and lawyers who have studied and applied TJ concepts and methods in their areas of practice. A quick look at the literature suggests that TJ has had the biggest impact on specific court systems designed to address specific problems. Can and should TJ concepts filter into the general court system and general law practice? Perhaps it should be something that lawyers are familiar with and can draw upon when a situation needs more than just dispassionate analytical investigation and solutions. Mediators trained in TJ would seem particularly valuable in certain cases calling for a therapeutic approach.

And one does not need to have an advanced law degree in therapeutic jurisprudence to understand that giving someone your attention and listening to his or her story is one of the most therapeutic gifts anyone can share. 

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