Baker, G --- "Do You Hear the Knocking at the Door? A 'Therapeutic' Approach to Enriching Clinical Legal Education Comes Calling" [2007] LegEdDig 26; (2007) 15(2) Legal Education Digest 19

Do You Hear the Knocking at the Door? A ‘Therapeutic’ Approach to Enriching Clinical Legal Education Comes Calling

G Baker

[2007] LegEdDig 26; (2007) 15(2) Legal Education Digest 19

Whitter L Rev, forthcoming

My goal here is to reflect, at least in part, on what works and what does not, toward a resolve to find approaches that offer sound pedagogical objectives to further student learning. My approach is grounded in the traditions of clinical legal education and finds its foundation in the relatively newly named discipline called Therapeutic Jurisprudence or TJ.

Therapeutic Jurisprudence has been defined as an interdisciplinary approach to law that asks how the law itself might serve as a therapeutic agent without displacing due process. TJ emphasises how legal actors, legal rules, and legal procedures can produce therapeutic or anti-therapeutic consequences in legal practice. The purpose and interdisciplinary focus of therapeutic jurisprudence has been explained as ‘the exploration of ways in which, consistent with principles of justice, the knowledge, theories, and insights of the mental health and related disciplines can help shape the development of the law.’ A TJ approach has been explained as focusing on the process of law as well as its outcomes from the perspective of legal actors such as judges, lawyers, or other legal professionals, and those subject to the law, namely, offenders, victims, and families.

When we consider such things as the human, emotional, and psychological side of the law and the legal process, it is quite evident why therapeutic jurisprudence and clinical education have been described as a natural ‘fit.’ It is in the clinical setting that students really get to experience the human dimension that should factor into every legal equation. Law school clinics and externships provide an ‘experiential setting that is a natural laboratory for applying therapeutic jurisprudence.’

Additionally, critics contend that law schools are not doing enough to provide students with a ‘moral framework’ for conceptualising legal issues, a concept key to therapeutic jurisprudence. Instead, students are taught to follow the ‘black letter law’ and not to factor ‘“emotion, imagination, or sentiments of affection and trust” into their analysis’ of legal problems. Therapeutic jurisprudence, by contrast, values the intangibles and teaches lawyers to view their roles in a different light. Nevertheless, it is often the legal profession that is called upon to deal with life-altering issues. My proposal suggests that tomorrow’s lawyers and judges be equipped with the knowledge, skills and passion to analyse and help craft solutions to people’s problems in a thoughtful and meaningful way that provides increased satisfaction to their clients and to the profession. In my view, therapeutic jurisprudence and clinical education provide at least one unique opportunity.

Therapeutic jurisprudence is a client-centred approach. This bedrock TJ principle suggests that the lawyer assists clients in making informed decisions by engaging the client and exploring all possible alternatives. With these ideas in mind, it becomes rather transparent how clinical programs can provide a fertile training ground for the ‘therapeutically’ inclined law student. Far more important though, may be the demonstrations of TJ as an alternative approach to those not so inclined.

Therapeutic jurisprudence has much to offer clinical teaching. By incorporating its principles in both the classroom and out of classroom components of clinic courses, law teachers can give students new and important insights into some of the most difficult problems regularly raised in practice settings.

Legal education has traditionally been reserved to teaching law students to ‘think like lawyers.’ While I agree this is a noble and necessary objective, law school curriculum and law teachers must go further if we are earnestly interested in producing logical thinking, well adjusted minds. I call it the ‘total legal package,’ one that is well schooled in the black letter law, legal reasoning, analytic thinking, but goes beyond. It is the study and application of disciplines such as therapeutic jurisprudence that have the capacity to aid in fleshing out the total package. The opportunity that exists by way of therapeutic jurisprudence to expose students in legal education to a humane, sensitive, empathetic and common decency approach to lawyering is one that should not be undervalued or overlooked.

Problem-solving courts, also called therapeutic courts, have become an important feature of the American court landscape.

A variety of needs facing juveniles, adults, and families whose mental health or substance abuse problems contribute significantly to their legal problems is at the heart of the process. A common thread that runs through these specialised courts includes an individualised approach to justice with effective case management and a closer collaboration with the service communities in their jurisdictions. The judge’s ability to utilise judicial authority, while understanding the complex psychosocial problems of the litigants is vital to the overall success of the courts.

A close relationship exists between therapeutic jurisprudence and problem-solving courts. Therapeutic jurisprudence is one of the major ‘vectors’ of a growing movement in the law ‘towards a common goal of a more comprehensive, humane, and psychologically optimal way of handling legal matters.’ Problem-solving courts are also one of these ‘vectors,’ and thus, share many common aims with therapeutic jurisprudence. You might say therapeutic jurisprudence and problem-solving courts work hand in glove. Further, therapeutic jurisprudence and all it brings with it provides an opportunity and basis to study the notion of problem-solving courts. A clinical program that exposes students to both vectors will place students at the forefront of these exciting movements and can ultimately help transform clinical education.

With its rich history and tradition, one might think it surprising that beginning with the fall term in 2003, William & Mary Law School created the first externship program in the country devoted solely to therapeutic courts practice.

The externship is part of the law school’s new and promising Therapeutic Jurisprudence, which provides a real framework for students to study the theory and method behind the clinical experience. The overall impetus for the externship program was that problem-solving courts provided a unique and innovative approach useful to both the academic community and the profession. It seemed natural that Virginia’s drug treatment court program would become a partner in providing an excellent setting to study problem-solving therapeutic courts. The objectives were to: (1) combine a cutting edge academic experience with research and scholarship opportunities; and (2) provide a public service to the courts and to legal professionals in the field.

Like most drug treatment courts, Virginia’s courts were a response to the recognition that processing non-violent drug possession charges in the criminal courts and then sentencing the offender to prison did not succeed in changing the offender’s addictive behaviour. Thus, Virginia’s drug court programs all share three basic components: (1) strict and frequent probation supervision with random weekly drug tests, (2) intensive drug treatment and counselling, and (3) regular reporting to the court with immediate sanctions for relapse or program non-compliance.

Virginia drug courts programs require offenders, known as the ‘clients’, to plead guilty prior to drug court intervention.

Of the 3216 Virginians admitted to adult felony drug treatment courts between November 1995 and December 2004, a total of 2,002 graduated or are currently enrolled in the program. The resulting retention rate is 62.25 per cent. Juvenile drug courts had 371 youths admitted to drug treatment court programs during the same period. Of this total, 217 have graduated or are currently enrolled with a retention rate of 58.49 per cent.

By anyone’s standards, Virginia’s drug courts have had a positive impact in both preventing crime and providing appropriate treatment for defendants with drug and alcohol problems. Examinations of the numbers at the end of calendar year 2004 reveal a state-wide felony recidivism rate of 15.9 per cent for adult drug court graduates. The felony recidivism rate for non drug court graduates stands at 33 per cent. The misdemeanour recidivism rate was 9.1 per cent. When you compare the recidivism rate for drug treatment court offenders to a 50 per cent felony recidivism rate for other Virginia drug offenders handled in traditional court programs such as probation and incarceration, this form of problem-solving court deserves some credit and attention.

Problem-solving methods are enhanced by teaching students to look beyond what resembles simply a legal issue, to the core of the client’s concerns, and decide whether that client’s issue is one that can be better handled by other professionals. The ‘learning to learn’ approach requires students to carry only a small caseload so that they have the opportunity to develop analytical, self-evaluative characteristics. Otherwise, the real value could easily be lost in sheer volume. The application of TJ aids in the development of the ever important aspect of professional responsibility and ‘develop[s] in students an appreciation of their roles as lawyers and an acceptance of their personal responsibility for the impacts [] lawyers have [on] society.’

I view the externship as the perfect vehicle to introduce students to the principles of therapeutic jurisprudence. Students are challenged by the instructor to think ‘outside the box’ and view legal rules and legal processes through a different lens. Seeing a court respond to a significant societal problem, by utilising TJ principles and a problem-solving approach, opens wide the therapeutic jurisprudence lens and can give instant credibility to this innovative and creative way of thinking.

The William & Mary externship has two major components. First, there is a classroom component, which consists of four classroom sessions. The first classroom session is devoted primarily to exposing students to the basic principles of therapeutic jurisprudence and problem-solving courts. The second and third classroom sessions provide a forum for students to reflect on what they have observed and experienced while participating in the externship and to compare the practices employed by the different placements.

In the final session, students discuss how they plan on carrying the knowledge they have gained forward into their careers.

As the instructor of the course, I offer to meet with students on an individual basis throughout the semester to discuss the externship. During these meetings, students are given an opportunity to discuss any problems or concerns and to reflect on their performance.

In addition to a journal, students are required to write a final paper.

The classroom aspect, while helpful, is only part of the externship. The second component of the externship is the on-site learning in the trenches where students see, feel, and learn about therapeutic jurisprudence and problem-solving courts and their application in the real world. Students are generally assigned to work with a drug treatment court administrator who, in turn, links the extern to other members of the drug court team. A number of assignments are undertaken by the students.

While the court administrators often act as the intern’s ‘field supervisors,’ students also are required to meet with other members of the drug court team (the drug court treatment team is normally comprised of the judge, the prosecutor, the defence counsel, the probation officer, the substance abuse counsellor, and the drug court coordinator) to interview them and learn about their roles as well as their perspectives on therapeutic courts.

In fact, students are made ‘ex officio’ type members of the drug treatment court team, which allows them access to team meetings. They soon learn that the team meetings are at the heart of the drug treatment court program. Sitting around a table, with the legal actors augmented by professionals from other disciplines, students see the agonising that goes with attempting to craft a comprehensive life-changing plan for an offender-client.

In addition, each student is required to spend time with the public defender or other defence counsel as they meet with drug court clients. This is done to further develop the students’ advocacy, communication, counselling and problem-solving skills. It also provides an important learning opportunity for students to observe attorney-client interactions and gauge the therapeutic or anti-therapeutic effects of the encounter.

As students see offenders who are unsuccessful in the drug treatment court program reassigned to traditional court, another opportunity loudly knocks at the student’s door. While discouraging, these ‘failures’ provide for some of the best learning opportunities of the externship. For example, when a client fails a drug test and is placed in detention, students who witness this sad turn of events often comment on how ‘emotional’ the courtroom becomes and how much they empathise, not only with the client, but with the judge and prosecutor who have to resort back to traditional punitive measures.

In addition, students have opportunities to interact with clients outside the courthouse walls. For example, students can fulfil some of their required hours by assisting in community outreach programs that are frequented by therapeutic court participants.

During the semester, students are given the opportunity to compare the drug treatment court program with the traditional criminal court system. The students begin to offer their own reasons why the drug treatment court programs are successful in some cases and not so in others. Some will offer interesting ways to improve the drug court program.

This high level of client interaction is important to the pedagogical goals of the program for a number of reasons. First, it works to show the favourable outcomes of the therapeutic courts and thereby favourably distinguish them from the regular criminal and civil courts. Second, such interaction helps to highlight the client-centred approach that is vital to therapeutic jurisprudence.

From all indications, the objective of introducing therapeutic jurisprudence and problem-solving courts to law students through the use of drug treatment courts is being met. When evaluating the externship, students generally conclude that the experience was a positive one that offered a unique focus on the practice of law. Students eagerly comment on how much they appreciated the opportunity to interact with judges and other members of the drug court team. Consistently, students describe the externship as a very ‘hands on experience.’ Students often relate that witnessing positive changes in clients as they fight drug addiction has a very profound impact. Many describe it as a ‘real sense of fulfilment.’

Even students who were generally predisposed to the more traditional brand of justice concluded that there was a place in legal education and the legal community for this approach. Consistently, students who complete the externship readily admit that therapeutic jurisprudence is worthy of further study and thought.

Looking at student logs and journals, one common theme is clear. Students regret not being exposed to therapeutic jurisprudence earlier in their legal education, which makes the case for its introduction most compelling. A fascinating revelation was that some students stated that had they been exposed to TJ earlier in their legal education, they might have chosen to concentrate their studies in other areas, such as criminal law or family law. This kind of student reaction and input is vital to the important need of introducing therapeutic jurisprudence early in the law school curriculum. In summarising all student reaction to the externship, it is certainly heartening to find another recurring theme, a commitment to use therapeutic jurisprudence principles in their future client interactions.

One word kept coming to mind as I penned this article. The word is ‘opportunity’ and it is displayed throughout. Merriam-Webster’s online dictionary defines opportunity as ‘a favourable juncture of circumstances; a good place for advancement or progress.’ The word goes a long way toward describing the Therapeutic Courts Practice Externship at William & Mary Law School. It is an opportunity to introduce law students to the principles of therapeutic jurisprudence and problem-solving courts.

It is an opportunity to expand clinical offerings into newly charted waters. The program has also proven a way to build meaningful relationships between the bench, bar, and students. It is truly a win-win situation.