Monday, December 6, 2010

The Power To Heal

I strongly believe that the role of lawyers as it affects society in law itself and finance has been corrupted. The corruption comes from greed and ego - not just on the part of the lawyer, but also on the part of the client. Lawyers should calm the waters not create a tsunami! The words of the President of the Mass. Bar Assoc. speak more eloquently than I ever could:

by Edward W McIntyre (immediate Past-President, Massachusetts Bar Association), May 2009

Simply defined, therapeu­tic jurisprudence is the use of social sciences to examine how the law im­pacts the well-being of those it serves.As a profession, we may underestimate our ability to calm a situation.

"The mere presence of a lawyer can bring comfort and solace to a person in need of help," according to American Bar Association Past President Dennis W. Ar­cher. "Knowing that, we can positively af­fect change in what may otherwise be a difficult, adversarial situation."
Is our potential ability to heal an other­wise conflicted situation compatible with our primary duties as advisors, advocates and counselors?

Florida Coastal School of Law Professor Susan Daicoff believes so. She writes, "Law as a healing profession has great transformational potential...It could make the legal system a more inspiring, humane, and hospitable place for clients, lawyers, judges, and indeed society as a whole."

The late Warren E. Burger, former chief justice of the U.S. Supreme Court, echoed the concept while speaking at the 1983 ABA Midyear Meeting —"the original role of lawyers was healing social con­flict." He went on to urge the profession to return to and embrace that role again. Revisiting that theme a year later, Burg­er said, "The entire legal profession ... has become so mesmerized with the stimula­tion of the courtroom contest that we tend to forget that we ought to be healers of conflict .... Trial by adversarial contest must in time go the way of the ancient tri­al by battle and blood .... Our system has become too costly, too painful, too ­destructive, and too inefficient for truly civi­lized people."

Taking Burger's sentiments even fur­ther, former dean of Notre Dame Law School David Link has observed the law to be one of the great healing professions alongside the clergy and medi­cine.

Last fall (2009), at the University of Windsor Eleventh Collo­quim on the Legal Profession, Archer said, "On an indi­vidual level, if we approach our life's work as healers, if we reorient our thinking to take advantage of the power of healing, we can do much good for our clients and oth­ers." The approach Archer mentions is timeless.

To argument and criticism, Abra­ham Lincoln would respond with commendation rather than confronta­tion. Critics and opponents ultimately, came to value his open, non-defen­sive language as he sought to heal the nation. In his lecture notes, Lincoln defined his understanding of the calling of a lawyer. "Per­suade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peace­maker the lawyer has a superior opportunity of being a good man. There will still be business enough."

According to Ronald C. White Jr., in A. Lincoln, Lin­coln understood his role as a lawyer to be a mediator and recognized that while at first glance a dispute seemed to be between two persons it almost always involved the whole community. He would urge his clients to settle because he knew these people had to go on living together in their communities, after they had their day in court. Even when dealing with corporations, such as the powerful Central Illinois Railroad, Lincoln looked to be the media­tor.

In modern times, healing and mediation are embodied in an evolving "therapeutic jurisprudence" movement. Simply defined, therapeutic jurisprudence is the use of so­cial sciences to examine how the law impacts the well-be­ing of those it serves. Professor Bruce Winick, a scholar of therapeutic juris­prudence encourages attorneys to see themselves as therapeutic agents. "Lawyers should seek to apply an ethic of care in their .practices, and the profession should teach this to subsequent generations."

In 2000, the Conference of Chief Justices and the Conference of State Court Administrators joined the lawyer-as-healer discussion with joint resolutions centered on uncon­ventional processes to address complex social issues and problems; a focus on remedies; and the benefits of thera­peutic jurisprudence.

Currently, therapeutic efforts are being applied in ex­perimental pilots. Two involve domestic relations pro­ceedings and the use of non-adversarial language in fil­ings and pleadings.
Applying these thoughtful and wise principles more broadly in earnest today may help bring about Chief Jus­tice Burger's vision of legal professionals as "healers of conflict." (All emphasis by R. Isacoff)

Author's Copyright (as applicable) by Richard I Isacoff, Esq, December 2010

1 comment:

Melissa F. Brown said...

Wonderful commentary and especially applicable to the family court bars across the country. Think what it would do for family court litigants if every one of their attorneys took this approach to each case.