Legal Proceedings Can Be Therapeutic, Study Finds

The theory and practice David B. Wexler helped create -- termed "therapeutic jurisprudence" -- could strengthen interactions between clients and judges and improve the way trials and hearings run. It also could change negative perceptions about law.

"Law school teaches you about rules, arguments and logic -- but not the impact of the law on the emotional life or well-being of people," says Wexler, a distinguished research professor in the James E. Rogers College of Law. "That has been an underappreciated aspect of the law -- a dimension of the law that has been ignored."

But, through research, he found that "you could look at the law as a dynamic social force with consequences and behavioral impacts."

Wexler is currently teaching at the University of Puerto Rico, where he now resides most of the year. He is also working on a book about criminal layering, a criminal defense and advocacy-based form, in the context of therapeutic jurisprudence. He said he hopes his research will help lawyers to be more creative and to "add breadth to law practice."

The benefits do not only go to lawyers, but also judges, victims, convicts, social workers and others, says Wexler, who is interested is in "promoting rehabilitation and improving emotional well-being and satisfaction."

Therapeutic jurisprudence coincided with other initiatives and methods meant to mitigate stress and trauma associated with the legal process, such as restorative justice, drug treatment courts, collaborative divorce and victim mediation, among others.

Wexler, who began teaching at the UA in 1967, co-developed the theory and practice with University of Miami professor Bruce Winick.

By the 1970s, Wexler's interest had shifted to law and psychology, or mental health law. He eventually began teaching on the subject. In 1987, he presented a paper on the topic.

"Then I realized my interest wasn't in the broad area of law and therapy, but a more narrowly focused area of law as therapy," says Wexler, who will return to the UA during the spring to teach the second half of a seminar that he began teaching in August.

Wexler said five key developments have surfaced since therapeutic jurisprudence was first explored:

1. The theory began in mental health law, but has since moved into other areas, such as family practice and criminal law and, in fact, "across the legal spectrum," Wexler says.
2. In effect, therapeutic jurisprudence is now more interdisciplinary and presents the marriage between law and psychology as complementary, not "two disciplines in an adversarial posture." Also, other disciplines have become increasingly engaged, such as criminal justice, public health, social work and anthropology.
3. Therapeutic jurisprudence has moved from theory to practice, with much interest expressed by judges and lawyers.
4. The practice has taken off internationally in areas such as Australia, Canada, Israel and Pakistan.
5. Also, higher education institutions increasingly have begun offering courses on therapeutic jurisprudence, as well as legal clinics that offer training in the practice.

"When I wrote the paper I said law should be the law in action, not just the law in the books," Wexler says. "It should not just be about how the law is written, but how it is administered and how people get around and operate it."

Take for example the convict about to be placed on probation.

Wexler says that instead of the old "you won't do this, you will do this. Goodbye, and I don't want to see you again," it may be more appropriate to engage the individual who is in the hot seat.

"It's about having a dialogue with a client. It's a more creative and flexible way of looking at existing law," he says. "I have seen examples of people who were more willing to accept judgment of the court if the court interacted with them in a certain way."

But it is not about negotiating law.

"Everything that is proposed here is possible under existing law," says Wexler, also a therapeutic jurisprudence consultant for the National Judicial Institute of Canada. "I see it as using the law in a somewhat different or creative way."

He also noted: "There is evidence that says lawyers are better respected if they show care for their clients, just as doctors are respected for having that bedside manner."