Academic journal article St. Thomas Law Review

Therapeutic Jurisprudence, Professionalism, and "Spikes" for Lawyers

Academic journal article St. Thomas Law Review

Therapeutic Jurisprudence, Professionalism, and "Spikes" for Lawyers

Article excerpt


Lawyers, whether advocating in court, negotiating deals on clients' behalf, or writing advice letters and briefs, use words to make a living. Their aim is to use these "words" to problem-solve for clients and to deliver an outcome the clients consider positive. In reality, however, there are times in each lawyer's career when he or she is not able to help clients achieve the results the clients are looking for. When this occurs, lawyers must deliver "bad news" to the client. For the purposes of this article, I define "bad news" as being "any information which adversely and seriously affects an individual's view of his or her future." (2)

The analytical skills required to assess the strengths and weaknesses of a client's legal position to determine whether their desired goal is attainable are different from the skills required to effectively convey that determination to the client. To a great extent, "thinking like a lawyer" demands a dispassionate assessment of "material facts" in light of relevant legal principles. Jeffrey Lipshaw, using the term "pure lawyering" (3) describes it as "a mode of converting real-world narratives into a logical progression of rules and facts." (4) "The heart of legal training is learning how to argue persuasively that the situation in dispute bears the greatest analogical resemblance to a case precedent in which the if-then rule just happens to generate a result favorable to that lawyer's client." (5)

For the purposes of this article, I do not debate the value of traditional analytical reasoning. My point is, however, that a lawyer's task is not complete when the analytical work is finished. (6) Rather, the lawyer must consider how best to deliver the results of the analytical reasoning in a manner that takes into account the likely emotional impact of the information. As Lesley Townsley has noted, while emotion has traditionally been viewed as undesirable in the legal domain, there are several cognitive theories of emotion that suggest understanding emotions can foster a better understanding of the positive and negative influences of emotions on judgment. (7)

Consider this hypothetical: "I have reviewed all of the evidence and the law in this area. Given that you are addicted to drugs and have no support system, your child will likely become a Crown ward (8) and be adopted by another family. This will mean that you will no longer be recognized as a parent to Sam."

I am not suggesting that most lawyers would use such cold language in delivering the message above. What I do suggest, however, is that while the profession is increasingly becoming aware of the importance of dealing with clients in a more compassionate manner, we have additional work to do. (9) On a view of professionalism that sees the lawyer as needing to act with "intelligence, maturity, and thoughtfulness" (10) to minimize the harmful emotional impact of the law and legal process where possible, (11) bad news delivery must implement an empathetic strategy that facilitates clients' abilities to cope most effectively with the information and make informed decisions about how to best move forward. (12) In addition to better serving clients, this approach can have positive effects for lawyers.

The articulation of professionalism animating this article is consistent with the core concepts of Therapeutic Jurisprudence ("TJ"). (13) Not only does TJ search for ways to foster more healthy emotional outcomes for parties, (14) it also embraces learning from other disciplines. (15) In the context of the current discussion, medical literature focusing on the development of therapeutic patient-doctor communications has much to offer lawyers.

I am certainly not the first to make this observation. For example, in 1998, Linda Smith wrote an article titled Medical Paradigms for Counselling: Giving Clients Bad News. (16) And more recently, Marjorie Corman Aaron's Client Science: Advice for Lawyers on Counseling Clients through Bad News and Other Legal Realities (11) makes these connections as well. …

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