In this blog Attorney Sofia Lizzio and Professor David B. Wexler explore how the principles of therapeutic jurisprudence can play a major role in the development of legal professional identity, a requirement introduced by the revised American Bar Association Standards.
Our work in Professional Identity Formation was inspired by an excellent article by Harmony Decosimo at Suffolk University “A Taxonomy of Professional Identity Formation”. Upon reading it, we realized that Therapeutic Jurisprudence can play a major role in the development of legal professional identity.
Therapeutic Jurisprudence (“TJ”) is an approach to law which highlights “wellbeing” as an important component of the legal system. In this blog we will show how applying law in a TJ manner is a simple and “ready to use” tool to fulfil the revised ABA Standards for the development of a professional identity in the legal profession. To this purpose we will present a set of TJ legal values creating the “lens” through which professionals can apply the law in a “better and more fulfilling way” and provide a collection of examples of different legal roles that can give tangible ideas of professional identity formation.
Professional identity formation is now not only encouraged but required by the American Bar Association. Its accreditation standards – specifically, Standard 303, which governs the law school curriculum – have now been formally revised to that effect. As a result, many schools will opt to create and mandate courses or programs to meet this requirement. Accreditation Standard 303(b)(3), provides that law schools “should provide substantial opportunities to students” for the “development of a professional identity”. The ABA’s Interpretation 303-5 of that Standard further provides that: “Professional identity focuses on what it means to be a lawyer and the special obligations lawyers have to their clients and society. The development of a professional identity should involve an intentional exploration of the values, guiding principles, and well-being practices considered foundational to successful legal practice”.
It is certainly shocking when practices that we ought to find disturbing become normal and we, as lawyers put aside our natural inclination towards human compassion. TJ has a mission: to infuse the human element into day-to-day lawyering and judging.
For the history, concerns for the lack of education in the field of a professional identity formation has long preceded the reform by the ABA. The National Taskforce on Lawyer Well-Being had expressed its concern on consequences of interactions between legal actors (that can have therapeutic or anti-therapeutic effects, in TJ terms): “Judges, regulators, practicing lawyers, law students, and professors continually interact with each other, clients, opposing parties, staff, and many others. Those interactions can either foment a toxic culture that contributes to poor health or can foster a respectful culture that supports well-being.” The Carnegie Report had already called for law schools to engage in professional identity formation, raising the problems that arise during legal education: “In their all-consuming first year, students are told to set aside their desire for justice. They are warned not to let their moral concerns or compassion for the people in the cases they discuss cloud their legal analyses.” Carnegie’s major recommendation was an integrated curriculum: To build on their strengths and address their shortcomings, law schools should offer an integrated, three-part curriculum: (1) the teaching of legal doctrine and analysis, which provides the basis for professional growth; (2) introduction to the several facets of practice included under the rubric of lawyering, leading to acting with responsibility for clients; and (3) exploration and assumption of the identity, values and dispositions consonant with the fundamental purposes of the legal profession.
The values applicable to the exercise of the legal profession (as distinguished from general values of being a good human being, or connecting them to any religion) are already offered by TJ.
In this blog we:
- Provide a brief introduction to TJ with some recommended further reading;
- Discuss the development of a professional identity through TJ as applied in different roles of the legal profession;
- Explore how TJ provides an opportunity to improve law student and legal profession well-being; and
- Suggest how TJ can be integrated into law school curriculum and law clinic work
TJ is a non political and non controversial as Professor David Yamada writes “interdisciplinary school of legal theory and practice that examines the therapeutic and anti-therapeutic properties of laws, legal systems, and legal institutions. In normative terms, TJ favors outcomes in legal proceedings and events that support psychological health, dignity, and well-being, while respecting considerations such as due process, individual rights, and economic efficiency.”
In legal events and transactions, TJ doesn’t want to go against the law but it wants to use the law with the purpose of favoring outcomes that advance human dignity and psychological well-being. Starting with original groundings in mental health and mental disability law, criminal law, and problem-solving courts, and with a geographic focus on the United States, TJ now embraces many aspects of law and policy and presents a strong international orientation.
Over the past three decades, there has been an extraordinary explosion of scholarly interest in TJ as a lens through which the entire legal system (and related forensic systems) can be viewed, and TJ has grown into a global community of law including judges, attorneys, scholars and practitioners from related disciplines. As Professor Wexler explains “Perhaps the most important point about TJ is that TJ is by and large a “method” — a method of thinking about the law. It is much richer than a body of knowledge to be memorized and then applied. Instead, it allows lawyers, judges and others to grasp a conceptual framework and to begin to use and contribute to it. Once grasped, areas in need of TJ infusion will more easily reveal themselves. Many will find that they are already using some TJ techniques without having a label for it. But when it has a label, a conceptual framework, a vocabulary, and a literature, those actors will see TJ opportunities in a more powerful and plentiful way.”
As Professor Wexler writes “One thrust of therapeutic jurisprudence is law reform, but another important dimension is in exploring ways in which the existing law may be more therapeutically applied. The latter aspect of therapeutic jurisprudence enables psychological insights to be effectively employed in judging and in the day-to-day practice of the law.”
As Sofia Lizzio notes “The characteristic of TJ that, to my modest opinion is “genius”, is that TJ recognizes that the law impacts people’s lives and wants to use the same law to produce better effects on our lives. TJ gives us a chance to see through its lenses and strive for psychological wellness of all parties involved, for example in a legal proceeding, as opposed to aiming for the personal satisfaction of adversarial triumphalism. It brings ethics to our profession and humanizes it. It is a wonderful feeling to know that we can use the law to improve our lives, on a daily basis, and to help other people’s lives as well. It has opened a window for me, which I maybe once thought would be utopic reality.”
For a recent exhaustive discussion of TJ and its reach, read David C. Yamada, Therapeutic Jurisprudence: Foundations, Expansion, and Assessment (2021). University of Miami Law Review.
It is important to note that procedural fairness or Procedural Justice (PJ) is a branch of psychology and is fully embraced by TJ as foundational towards achieving TJ goals. However, TJ is a broader concept. For example: PJ principles require us to “give voice”, while TJ asks “voice about what” and thus guides court conversation above merely “giving voice”. Read more about TJ and PJ in Professor Wexler’s article Guiding Court Conversation Along Pathways Conducive to Rehabilitation: Integrating Procedural Justice and Therapeutic Jurisprudence.
The development of a professional identity through TJ as applied in different roles of the legal profession
Below we describe a few different roles where TJ has been applied that students could find helpful for their inspiration to create their own professional identity. Efforts are underway to introduce TJ into academic and legal practice settings. The hope, of course, is that bringing an explicit ethic of care into law teaching and ultimately practice will better serve clients, humanize law practice for clients and lawyers, contribute to lawyer satisfaction and decrease lawyer distress, and begin to attract to the legal profession many who have opted out of practicing in a culture.
How do we reach such results? A useful heuristic is to think of TJ professional practices and techniques as “wine” and to think of the governing legal rules as “bottles”. Professor Wexler refers to “TJ friendly” and “TJ unfriendly” laws or “bottles” by considering the amount of TJ practice or “wine” that can fit into that bottle. For example, a stiff mandatory sentence or a life sentence without parole would be quite TJ unfriendly, whereas provisions authorizing problem solving courts would be highly TJ friendly. Another TJ friendly component of the law of probation is to permit the court, when appropriate, to call for the early termination of the originally imposed probationary period. Thus the legal availability of conducting periodic review hearings and of terminating probation early in successful cases would constitute a TJ friendly “bottle” of probation. Fitting ‘wine’ into ‘bottles’ is a description that fits well the statement, made by a Victoria Supreme Court Justice and former President of the Victoria Civil and Administrative Tribunal, that TJ practices may be regarded as “interstitial”, filling the spaces left open by the law governing proceedings. Sometimes applying the lenses of TJ is as easy as filling “the gaps” of law – or fitting wine into already existing bottles (“Interstitial TJ practices”), other times, the intervention of the legislator is required to change the law to expand the ability to apply TJ approaches (“Glass blowing of the law”).
Some examples of where TJ practices have been applied in legal practice:
- BETTER LEGAL COUNSELLING
A major problem faced by the legal profession is the public perception, unfortunately apparently grounded in reality, that lawyers typically do not practice with an ethic of care. In contrast, Therapeutic Jurisprudence is concerned with the law’s impact on emotional life and psychological well-being, and is interested not only in law reform, but also in how existing law may be most therapeutically applied.
As illustrated by Patry, Wexler, Stolle and Tomkins “…consider the situation of elderly parents with two adult children, one of whom functions marginally because of a history of drug and alcohol problems. If, in drafting a will, the parents leave funds outright to one child, but leave the money in a trust to the one with drug problems, the parents may be creating a situation of hurt (…) A lawyer combining the perspectives of therapeutic jurisprudence and preventive law will anticipate this situation, will regard the proposed testamentary disposition as a “psycholegal soft spot” (though not a “legal soft spot,” vulnerable to legal attack), and will discuss with the clients possible strategies of dealing with, and minimizing the law-related psychological distress.” For example possible strategies would be suggesting the client have an open discussion with the heir to explain why the step was taken (of not leaving them a whole lump sum), or writing a separate letter of explanation to the will, or including a brief explanation in the text of the will.
- FAMILY LAW
The example of Singapore is worth mentioning in the field of family law. Family Courts have acknowledged that the TJ approach is about adopting a “lens of care” to examine the extent to which the laws, rules and legal procedures, as well as the behavior of the participants in the family justice system, could produce helpful or harmful consequences. Family disputes can be non-adversarial even when litigation
is required: to this purpose lawyers’ role has an important role of counseling. Lawyers encourage the parties to focus on problem-solving instead of past hurts, and to come to workable and durable solutions for themselves and their children. The seeds of TJ were planted in the mid-1990s when mediation and counseling were incrementally introduced into the family justice system in Singapore.
- IMPROVING CIVIL LAW PRACTICE FOR CLIENTS AND LAWYERS
Concerning civil law office practice Associate Professor and Director Rhodes University Law Clinic Jonathan Campbell provides a good overview of the concepts of preventive lawyering, therapeutic jurisprudence and relational lawyering, illustrated with reference to examples of practical problems frequently presented by clients. He wrties: “A better understanding of a clients needs and context, improved rapport, and improved outcomes for the client, can provide for the lawyer a more rewarding and enjoyable way of practicing. It can therefore have positive benefits for the mental health and wellbeing of the lawyer as well as the client. Furthermore, if lawyers can practice with care, empathy, and greater sensitivity to psychological issues presented, putting their clients interests first, this could go a long way towards improving the image of lawyers, as well as lawyers’ own self-image.”
- LAWYERS ASSISTANCE PROGRAMS (LAP) ASSISTING CLIENTS WITH DRUG RELATED LEGAL PROBLEMS
It is often the case that lawyers who have experienced addiction and are in recovery or have witnessed family members or friends who have done so. They may be interested in getting involved with other lawyers, but also clients, giving back by helping others in that situation. Typically LAP volunteer lawyers participate as a support system for lawyers in active treatment for addiction and mental health problems. Additionally, they might be able to use their experience with other people as well and not only with other lawyers. Clients involved in drug related legal problems (for ex. about to lose children’s custody, to get evicted, to be deprived of a license) might find LAP lawyers’ assistance most valuable. LAP lawyers can help other lawyers with the same problem and help clients with drug related legal problems.
As ProfessorWexler writes: “After all, these LAP lawyers in long- term recovery possess a special strength (including important practical and relevant knowledge about the problems at hand) and, if they are comfortable talking about their personal stories, will likely also have enhanced credibility – with courts and with clients themselves.”
- JUDICIAL CONSULTANTS
In Elevating Therapeutic Jurisprudence: Structural Suggestions for Promoting a Therapeutic Jurisprudence Perspective in the Appellate Courts, Professor Wexler discusses judgement writing in Appellate Courts noting that the courts are often tempted to rely heavily on the wording of a well drafted brief by the winning party. As a consequence such opinions sound more like a congratulating letter to the winner, than a careful explanatory letter to the losing party. Wexler suggest that this could be addressed by a long term law clerk (or “Judicial Consultant”) whose main function would be to explain in a respectful and empathic way to the losing party details about the reasons why the Court came to such a conclusion.
- VICTIMS’ PROGRAM
One way that victims can better participate in the criminal justice system is if they are accompanied to court by a legally knowledgeable person who can explain the proceedings. In this artcle Professor Wexler proposes that students affiliated with a law school clinic could ably perform that function. In addition, that role could give the students some counseling experience and sensitize them to the needs of victims.
“The inquiry led me to focus on the formation of lawyers — on the process and content of legal education, particularly in the increasingly important area of clinical legal education. What better way to see things from a victim’s perspective than to have a lawyer in–training have personal contact with a victim and to accompany the victim to court proceedings? At the same time, the law student role should provide
emotional support to the victim as well and help dissipate the frightening mystery of the legal proceedings.”
- REENTRY MOOT COURT
This essay proposes that correctional institutions expose interested confined persons to programs involving elements of restorative justice, therapeutic jurisprudence, and relapse prevention planning, culminating in a transition and relapse prevention plan that can form the basis of a proposed parole plan. Then, the confined person about to be considered for parole can try out the plan before peers
in a Reentry Moot Court. Such an exercise should be of practical and rehabilitative use both to the confined person defending his or her plan and to the peer confined person who will hone their own problem solving skills by participating in the Moot Court process.
- TJ AND POLICY MAKING
Professor Yamada urged therapeutic jurisprudence to inform both the processes of policymaking and the design of public policy, […] on whether human dignity, psychological health, and well-being are advanced or diminished. Dignity and compassion should be the values, the pillars on which all legal actors should step when interacting with society, be it in a Courtroom, when talking to a victim, an offender, a witness or when exercising the legislative function.
- TJ AND COURTS ADMINISTRATION – THE INTERNATIONAL FRAMEWORK FOR COURT EXCELLENCE
The International Framework for Court Excellence is a Framework of universal core values, as well as concepts and tools by which courts worldwide can voluntarily assess and improve the quality of justice and court administration. For TJ asa tool that enables courts to improve the quality of justice and enhance the wellbeing of individuals and communities in which they operate, see Richardson, Elizabeth and Spencer, Pauline and David B. Wexler, The International Framework for Court Excellence and Therapeutic Jurisprudence: Creating Excellent Courts and Enhancing Wellbeing
How TJ can increase law student and legal profession well-being
The McKinsey Health Institute has identified the need to generate internal self-direction toward excellence to achieve a satisfying and meaningful professional life. We believe that a better therapeutic application of the law and the development of a more fulfilling legal career results in enhancing the wellbeing of the legal actors, solving the problem lf burnout at it’s source. This is distinguished from the recent development of
several wellbeing techniques and support programs, aimed to mostly relieve symptoms of a burnout and/or support situations of addictions stemming from a frustration connected with the way legal professions are currently carried out and taught in law school.
- LAWYERING DISCONTENT
Professor Bruce Winick has clearly developed the issue of “lawyering discontent” in his book “The Reimagened Lawyer” in which he wrote “the problem is the legal profession, which has been indicted for fostering a culture of self-serving, aggressive and unethical lawyers. The negative values cultivated and rewarded by the legal culture lead to anti-therapeutic behaviours and outcomes for all: clients, third parties and lawyers themselves. The good news is that the solution to this malaise also lies with the legal culture and the ability of lawyers to rethink who they are, what they do and why they do it.” Professor Winick goes on exploring the roles of a lawyer “as a problem avoider” in a preventive law key, “as a peacemaker” counseling clients to avoid litigation where possible and and promote settlements and, finally “as a healer” considering the role of the lawyer in the rehabilitation of the client and suggesting techniques of motivation. Professor Winick’s book was published in 2010, ten years after his death, and is a major contribution to TJ field still today, as it includes and presents much of his work in a simple and easily understandable way and deserves a really wide readership for people interested in TJ.
- WHOLEHEARTED LAWYERS: SUPPORTING LAW STUDENTS’ PROFESSIONAL IDENTITY FORMATION
What was once perhaps a minority concern in the law school curriculum has birthed multiple AALS sections, administrative positions, symposiums, and, increasingly, significant scholarship. Susan Brooks, Fostering Wholehearted Lawyers: Practical Guidance for Supporting Law Students’ Professional Identity Formation. writes “These groups are focusing on a broader set of values beyond those enunciated in our professional rules, including empathy, compassion, mutual connection, cross-cultural awareness and engagement, and social justice. In this essay, I reflect on the past twenty- five years and set out a number of core principles and practices gleaned from this movement thus far.” Professional identity formation of law students ideally encompasses both development of the necessary attributes of lawyers as well as a robust philosophy to inform the character of their engagement with the justice system throughout their career.
Based on Susan Brooks’ Wholehearted Lawyering teaching principles and practices, Dr Jennifer L. Whelan provides a sound basis for developing the complex core personal, interpersonal, and relational skills necessary for law students and lawyers to maximize constructive interactions within the legal system. The article explicitly includes the importance of TJ in the development of students’ professional identity in an Australian legal clinic established in 2020 at Western Sydney University in New South Wales, Australia.
The Comprehensive Law Movement includes therapeutic jurisprudence, collaborative lawyering, transformative mediation, and other approaches which aim to transform the practice of law into a humanistic and healing force rather than a confrontational and hurtful process. As Marjorie Silver writes “When lawyers find ways to practice law that optimize their own and their clients’ well-being they can recapture the moral vision that originally attracted them to the law, and in so doing, find joy and meaning in their practices”.
- A SATISFYING AND MEANINGFUL PROFESSIONAL LIFE
In TJ, we are not talking singularly of better treating litigants, offenders, or better supporting victims. We are also giving professionals involved in the legal process such as lawyers and judges a chance to feel more satisfied with their roles. Our goal is to motivate (young) lawyers who are often the first victims of the system, when their disenchantment takes place upon their first shock with the “rough” legal reality of a Courtroom as opposed to a Law School classroom. Professor. Wexler describes how the “Culture of Critique […] urges us to approach the world in an adversarial frame of mind” opposition and debate being the preferred methods of resolving conflicts. Focusing on controversial matters has a long term social cost: it encourages us to see the “big divisive issues”. Taking this consideration to the legal field, “the American legal system is a prime example of trying to solve problems by pitting two sides against each other and letting them slug in public”.
Conclusion, takeaways and contacts
TJ can be easily taught in law school. Indeed some examples already exist of TJ being taught as captured by Professor Michael Perlin in this article.
Ideally there would be a full-blown introductory course, as well as a TJ component in specific substantive areas, such as criminal law, disability law, family law, and the like. In recognition of the difficulty of capturing time for new courses in a law school curriculum, TJ can be introduced in a brief and basic manner — in a class session or two, ideally in an obligatory first year class such as Legal Profession, or Legal Writing and Analysis as proposed by Professor Wexler: “The underlying premise is that with a clear and basic understanding of the TJ method of thinking, students would be equipped to see the material of their other classes through a “TJ lens,” and they will similarly be able to approach their clinical work and later practice guided by paying close attention to how the role of the law and lawyering might promote psychological well-being….My hope is that the suggested brief and basic introduction would “stick” with the students and allow them to bring the TJ perspective to their other classes, to their clinical work, and to their later practice.”
And further suggestions of integrating TJ into law clinic work
TJ is dynamic not just to be learned and applied; please visit and join the following resources:
➢ TJ blog
➢ enroll to TJ listserv by sending a blank email to: firstname.lastname@example.org;
➢ Join social media on FB and LinkedIn (International Society for Therapeutic Jurisprudence)
We would be happy to be in touch by email with anyone interested in exploring in greater detail the various matters covered here, setting up a TJ course at your faculty or a TJ introductory course to be included in an existing course.
About the authors
Sofia Lizzio is an attorney qualified in New York State and in Europe (Italy and Greece). Fluent in 6 languages, she studied law at Bocconi University of Milan and developed her career as a corporate lawyer. Her LL.M. at University of Puerto Rico made her discover and become an active contributor of Therapeutic Jurisprudence, upon meeting Prof. Wexler and attending his courses. Her LL.M. Thesis was her first important work, using TJ in previously unexplored areas of law (eg. real estate law), covering a wide range of issues with an impressive international orientation. She is currently part of the board of the International Society for Therapeutic Jurisprudence. SSRN Author page.
David Wexler Professor of Law, University of Puerto Rico, Distinguished Research Professor of Law Emeritus, University of Arizona. Wexler, with the late Bruce Winick, named and conceptualized Therapeutic Jurisprudence (TJ) in October 1987 at a National Institute of Mental Health (NIMH) workshop. Read more about David Wexler and TJ here. And view David Wexler’s SSRN Author Page here.