THERAPEUTIC JURISPRUDENCE, PROFESSIONALISM, AND 'SPIKES' FOR LAWYERS.

• Author: Kierstead, Shelley

INTRODUCTION

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. This article simply aims to highlight ways that adapting a medical framework for doctor-patient communications to a legal context can help clients hear and be heard with respect to their own legal cases. I argue that the ability to facilitate this outcome in turn enhances lawyers' professionalism.

While there are a number of medical frameworks for doctor-patient communications in existence, (18) I will focus on one in particular-SPIKES (19)--which provides a comprehensive approach to compassionate, patient-centered communication of bad news that will facilitate client involvement in future planning.

This article will progress as follows. In Part 1, I discuss both the medical profession and the legal profession's challenges in relation to effective communication with patients and clients. (20) I suggest that the medical profession's response, specifically as it relates to delivering bad news, has been more proactive and widespread than the legal profession's response. (21) Part 2 briefly reviews research dealing with legal clients' emotional responses to different forms of communication, with a view supporting the argument that clarity of information, empathic responses to clients' reactions, and collaborative problem-solving are important elements of a professional relationship. (22) Part 3 introduces the SPIKES model, applies it with some modifications to a legal setting, and discusses the benefits to lawyers of adopting this type of model. (23) In Part 4, I engage in a hypothetical "bad news" client discussion using the SPIKES model. (24)

PART 1: DOCTORS, LAWYERS, AND THE PUBLIC

1. Doctors

   While it seems intuitive to suggest that "bedside manner" is a core function of practicing doctors, the emphasis on training doctors to communicate with patients has strengthened in the past number of decades as a result of a concern that medical professionalism had waned in the era of more research-focused practice. (25)

   Medicine has experienced a fascinating evolution in its characterization of professionalism: from very careful, somber mannerisms rooted in the Greek tradition that saw medicine as art, (26) to minimized focus on patient communications as medicine grew to be characterized as "science." (21) The overemphasis on medicine as science rather than art led, according to some within the profession, to a diminished focus on professionalism in terms of relationships with clients. Only after public expressions of diminished trust for doctors was there a shift back to training doctors to communicate accurately and compassionately with patients. (28) A number of medical organizations have called for a sustained "focus on the three core principles of professionalism: patient autonomy, patient welfare, and social justice. (29)

2. Lawyers

   Criticism of lawyers is neither new nor relenting. A 1999 survey of one thousand respondents asked to report on their perceptions of the American Justice System (30) revealed that 42% of respondents lacked confidence in lawyers. (31) A similarly poor perception was revealed in a 2014 Ipsos Reid poll surveying approximately 4000 Canadians where only 16% of respondents considered lawyers trustworthy. (32) In 2013, the Ontario Bar Association launched a public-relations media campaign with the objective of persuading "people that, far from their time-worn image as greedy and over-aggressive manipulators, lawyers are actually problem-solvers, pillars of their communities and an indispensable cog...