Email this article Lawyers' Self -Perception and Therapeutic Advocacy
Karni Perlman * & Yael Ben-Saadon *
Abstract
The article discusses various aspects of therapeutic advocacy. It presents a significant change in lawyers' self- role- perception when representing clients in two discrete forums: One, Community Courts and the other -the Appeal Committees for Security Forces' Disability Claims.
These forums differ from each other in several essential aspects; for example, the first handles criminal cases while the other handles civil claims. Yet, both are institutions that, ultimately, seek the same substantive goal of rehabilitation.
The article describes research that was conducted in Israel and presents themes that emerged from interviews with lawyers operating in these forums. It analyses similarities and differences between the two arenas. It describes professional dilemmas faced by the lawyers and indicates their level of satisfaction with the manner in which proceedings are usually conducted.
The lawyers' attitudes and descriptions of their professional conduct reinforce and provide additional content to the perception of lawyers as therapeutic agents with the power and responsibility to promote humane and unifying law. The lawyers' therapeutic approach is reflected in a variety of ways, including in the development of the lawyer-client relationship, the lawyers' perception of the system and their role within it, and the lawyers' sense of their professional identity and degree of professional satisfaction.
Thus, even though the findings of the study have elucidated the existence of a therapeutic perception among lawyers advocating in particular forums in a specific legal system, they provide insights that may serve as a basis for learning and discussing broader issues that may be applied to other forums more generally.
A. Introduction
Therapeutic jurisprudence (Wexler and Winick, 1996; Stolle et al. 2000; Winick and Wexler, 2003) imbues the role of the contemporary lawyer with new, interesting and challenging content. This theory of law offers an advocacy model which differs from that of the "gladiator" lawyer, namely, where the lawyer resembles a fighter operating in a competitive arena and struggling to subdue his opponents. The model proposed in this theory is that of "the rehabilitative lawyer" (Wexler, 2008). According to therapeutic jurisprudence, lawyers are therapeutic agents. Advocacy under this approach is intended to assist the client when conducting legal proceedings, or taking legal action, to achieve, among other things, positive, constructive, and restorative emotional outcomes - the therapeutic outcomes, and minimize anti-therapeutic, negative, and debilitating outcomes. (Winick, 2000; Wexler , 2005).
Under the therapeutic model the frame of reference for advocacy is the "ethic of care" (Gilligan, 1982) which includes caring, thinking about the clients and demonstrating concern for their well-being. Therapeutic advocacy considers a wide circle of results ensuing from the procedure, relates to emotional aspects of case management and looks to the future. It is based on a relational concept that takes into account interpersonal relationships that shape and influence the client's social environment (Brooks and Madden, 2009).
The therapeutic advocacy model delineates ideal guidelines for representing clients using an approach which is effective and of high quality and which is consistent with the ideals of the therapeutic jurisprudence movement. In this study, we sought to examine whether, and in what ways, lawyers representing clients in certain forums in Israel, give practical expression to various aspects of therapeutic advocacy. We chose to focus on two forums in which lawyers' therapeutic perceptions might be given real expression. One, Community Courts and the other, the Appeal Committees for Security Forces' Disability Claims.
Community Courts are relatively new institutions in Israeli law, operating for about the past five years. These courts are in the nature of problem-solving courts (Hora, 2011; Berman and Feinblatt, 2015) the operating model for which has been adapted from the American legal system. Community Courts deal with certain criminal offenses. The judicial process conducted therein adopts a collaborative and therapeutic approach to conflict management (King, 2009; King et al., 2014; Perlman, 2018) and inter alia, establishes a rehabilitation plan aimed at removing the defendant from the cycle of recidivism (Hora, 2011, pg. 46). To this end, the court addresses all aspects of the participant's life and provides them with tools and a support network over a range of social, emotional, behavioral, health and economic issues (Gal and Dancig-Rosenberg, 2018).
The Appeal Committees for Security Forces' Disability Claims (hereafter: "the Appeal Committees") are relatively well-established in Israeli law. They were first created by a law dealing with benefits and rehabilitation granted to security forces personnel injured in the line of duty (hereinafter: "the Disability Law"). [1] The Disability Law provides the injured serviceman and servicewomen with tools and a support system designed to help them recover from the injury. The law relates to wide-ranging aspects of rehabilitation, including the possibility of receiving living allowances, welfare services, and certain benefits in connection, for example, with vehicles and accommodation. The committees sit as appeals courts on decisions concerning recognition of disability or decisions regarding the extent of the rights due to the injured servicemen. In other words, they hear a certain type of civil action based on tort grounds.
As these brief descriptions show, these two forums differ in several essential aspects. The Community Courts deal with criminal proceedings and acts committed by the defendants against society, whereas the Appeal Committees deal with civil proceedings and claimants who performed acts on behalf of society and for its benefit. The former shapes the rehabilitation process and is part of it, while the latter represents the gateway to the rehabilitation process and determines who is eligible to enter, or the possible scope of entry.
Despite the significant differences between the forums, we chose to examine the perceptions of lawyers representing clients within their precincts because, in fact, both are institutions that, substantively, seek to achieve the ultimate outcome of rehabilitation of the litigant in need.
We considered that the rehabilitative goal could be expected to have an impact on the lawyer's perception of their role and shape their professional behavior. It could be assumed that in both forums the lawyer's work would involve dealing with the encounter between law and emotional aspects which would require reference to the "psycho-legal soft spots" involved (Patry et al.,1997). Advocacy aimed at achieving the goal of rehabilitation, would probably require addressing the client's circumstances of life, their physical and emotional rehabilitation, and hence the suitability of applying a therapeutic approach in advocacy.
Accordingly, we sought to examine whether, in light of the rehabilitative goal, it was possible to point to the emerging role of the therapeutic lawyer in these two forums. Moreover, precisely because of the differences in their respective characteristics, we sought to see what could be learned from comparing advocacy in each forum. In order to answer these questions, we chose to conduct a qualitative study based on interviews with lawyers appearing in the two forums under consideration.
The research paper presents themes discussed in the interviews with lawyers representing clients in these forums and analyzes the similarities and differences between them. It also describes professional dilemmas faced by the lawyers and indicates their level of satisfaction with the manner in which proceedings are usually conducted.
The research sets out insights which may be relevant on a number of levels. The analysis of these forums can help inform the work of similar courts or tribunals in other countries and spur thought about the need for structural or procedural changes in order to allow the objectives of the respective forums to be met. It focuses on the lawyer's professional concepts as well as aspects of therapeutic advocacy that may assist in thinking about new ways, including education and training, of broadening the application of these practices in different countries,
First, we briefly describe the concept of the lawyer's therapeutic role and the scope of the study. Second, we present the research findings by the main themes upon which we chose to focus. Finally, we discuss the findings and draw some conclusions.
1. The Therapeutic Role of the Lawyer
Therapeutic jurisprudence regards law as a social force having therapeutic or anti-therapeutic results and espouses the integration of insights emerging from this concept within the framework of legal advocacy as well (Wexler, 2000). In this theory, lawyers are therapeutic agents and therefore their actions may achieve therapeutic results, i.e., positive, constructive and restorative emotional outcomes for the client. (Perlin, 2000; Wexler, 2014).
The therapeutic model of advocacy suggests that the work of representing the client be carried out within the context of an "ethic of care" which includes an expression of empathy, caring, and concern for the client's psychological well-being (King in Wexler, 2008, pg. 230). This ethic should motivate those working in the system, to make use of knowledge from the social sciences (such as psychiatry, criminology, social work) to "identify, and ultimately to examine empirically, relationships between legal arrangements and therapeutic outcomes" (Wexler, 1992, p.32). It will take into account a wide range of legal outcomes, address emotional issues and look to the future (Stolle, 1996; Kupfer-Schneider, 1999). Advocacy which adopts a therapeutic approach is based on a relational concept (Steir , 1992) in which interpersonal relationships are given central place and takes into account both the lawyer-client relationship and other relationships that shape the client's social environment (Wexler, 2010; Brooks and Madden, 2009).
Advocacy in criminal proceedings according to the therapeutic advocacy model is designed to assist in the client's rehabilitation. The role of the lawyer is not confined to defending the client in respect of a particular act committed by him in the past, but is also designed to help prevent the client from being involved in future trouble and snagged in the cycle of recidivism. The role is not limited to repudiating prosecutorial allegations in connection with a particular act, but is intended to serve as an "agent of positive change" creating an impact on the client. The lawyer's efforts are directed towards motivating the client to rehabilitate themselves, and obtain the tools and support that will enable him to renounce crime, as well as try to find solutions that will meet both the client's needs and the community's interests (Wexler, 2008).
Studies show that the lawyer's attitude towards the defendant and approach to the process are of great importance and exert considerable influence on the defendant. Perception of the process as legitimate and as an opportunity for change may affect the client's attitudes and readiness for rehabilitation (Winick, 2002; Ronel and Elisha, 2011). A lawyer-client relationship which is characterized by acceptance, empathy, encouragement and hope for rehabilitation, helps the defendant's active participation in the criminal process and their subsequent rehabilitation. The positioning of the "client at the center" (Wexler, 2011) brings, in the criminal context, to advocacy imbued with elements of social work and educational guidance, rehabilitative and sometimes even family counseling (Seamone, 2009; Okonkwo and Kervor, 2012; Herzog-Evans, 2016).
A unique discourse in therapeutic jurisprudence deals with the role of defense lawyers who represent mentally impaired clients. A mentally impaired client requires protection and representation in the criminal process commensurate with his special needs. The lawyer's therapeutic role in this context is filled with unique content that includes both facilitating the client's access to the legal and health systems, as well as representing the client's positions and desires within these systems. The goal is to mediate between the client's own world and the institutional approaches of the legal and health systems, while giving due consideration to the elements of respect and fairness which the latter must show to the client (Perlin, 2017). Among other things, this will be reflected in the provision of information and explanations to the client about processes affecting him and options available to him, all set out in clear language, as well as "giving voice" to the client's own wishes and bringing these to the knowledge of the legal and health systems (Wexler, 2013).
The lawyer's therapeutic role is an active one that helps elucidate the conflict and propose ways to resolve it. Lawyers with a criminal law practice who adopt the therapeutic model are familiar with the types of rehabilitation facilities available and sometimes propose rehabilitation plans relevant to their clients. Moreover, many such lawyers also play an important part in designing rehabilitation programs. The literature on the subject reveals that they are often asked to participate in conceptualizing and planning these projects as they have an expert understanding of the needs of defendants and the problems that may arise in the process of rehabilitation and re-entry into society (Okonkwo and Kervor, 2009; King, 2007).
The concept and elements of the lawyer's therapeutic role, which have been influenced by therapeutic jurisprudence, are now also influenced by concepts of positive criminology (Gal and Wexler in Ronel and Segev, 2015) and preventive law (Stolle et al, 2000, pg. 5). The changes in the lawyer's role proposed by various conceptual-legal movements are part of a comprehensive law movement (Daicoff , 2006; Daicoff , 2011) that reflects a shifting trend in contemporary law. At the heart of this new trend is a call for effective and high-quality dispute resolution and a transition from the adversarial approach to dispute management to one which favors legal movements that support a collaborative approach and its application in appropriate cases (King et al, 2014; Perlman, 2015).
When advocating in criminal proceedings, the lawyer's therapeutic role often sparks professional dilemmas regarding a potential contradiction between professional conduct using a therapeutic approach, on the one hand, and the rules of professional ethics in the context of the adversarial approach when representing a defendant, on the other hand (Quinn, 2007). These dilemmas ensue, inter alia, from the fact that the interest in rehabilitation, which may require the defendant to take responsibility for the criminal act, may be contrary to the "classical" goal of advocacy in the criminal process, namely, protecting the defendant's interests against the force of the law.
The model of the therapeutic lawyer is not confined to advocacy in criminal cases, but is also relevant to advocacy within the civil sphere. Therapeutic advocacy is characterized, inter alia, by the provision of legal advice on emotional matters arising during the management of the legal process and its outcomes. Scholars of therapeutic jurisprudence call this, as mentioned before, "soft psycho legal soft spots" (Patry et al., 1997). Therapeutic advocacy, for example, assists in choosing the appropriate procedure for handling the dispute in which the client is involved, while giving consideration to the adaptation of the procedure to the client's emotional well-being (Kupfer-Schneider, 1999).
An example of advocacy which requires sensitive "psycho-legal" points to be addressed is client counseling and representation when managing a tort dispute. As noted, legal guidance pursuant to a therapeutic approach emphasizes the individual's emotional well-being. Consequently, a monetary remedy is not the sole goal, but is seen as an aid in the process of rehabilitating the clients and returning them to adequate functioning. In terms of the therapeutic approach, providing help to the client means strengthening the client's emotional capacity to rehabilitate himself and return to optimal activity, and concomitantly avoid becoming dependent (Shuman, 1992). Therefore, legal guidance pursuant to a therapeutic approach may, for example, initiate measures that will help the client return to the labor market. Here too, this approach may contradict accepted concepts of representation in the adversarial context, as it may impair the client's ability to prove the extent of the harm suffered by him and the extent of its impact on his life and consequently lead to a reduction in the financial compensation awarded to him.
Representation of clients pursuant to the therapeutic model improves the effectiveness of the therapeutic judicial process and helps to fulfill the functions of therapeutic adjudication (Perlman, 2008).
2. The Study
The study examines the perception of the role of advocates in the Community Courts and Appeals Committees in Israel.
2.1 The Forums
The Community Courts in Israel mirror problem-solving courts operating in the American legal system [2] and in other countries. These are special courts that deal with criminal offenses at the level of Magistrate Courts and are designed to achieve educational, rehabilitative and therapeutic goals. The adjudicative process therein seeks to assist the defendant, who participates in the proceeding, to escape the cycle of recidivism. This is achieved through a rehabilitation process conducted on the basis of a "therapeutic contract" with the defendant which includes an holistic consideration of needs and life circumstances, as well as the degree to which the terms of the contract and the obligations derived therein are fulfilled. The court works in collaboration with community and welfare officials and customizes a rehabilitation program for the defendant that addresses all aspects of his life, including health, education, livelihood, housing and more.
The judicial process in the Community Courts is conducted using a collaborative-therapeutic approach and features teamwork involving the judge, defense lawyer, prosecutor / state prosecution office, probation service, court coordinator, and community worker. The teamwork includes weekly meetings to discuss pending cases and other meetings that include training and discussion of work procedures.
The defendant is required to reappear in court at intervals determined by the stages of his progress and compliance with the therapeutic contract. The legal process takes about a year and a half.
The first pilot Community Court in Israel was launched in 2015 in the city of Be'er-sheba in southern Israel, and since then five other such courts have been established in various districts in the country.
The Appeal Committees are relatively well-established bodies in the Israeli legal system, operating under the Disability Law that deals with the benefits and rehabilitation of security forces personnel who have been injured in consequence of their service. The disability recognition process is conducted in stages. The person claiming disability must apply for a determination of his disability claim. This request is examined by the Compensation Officer in the Claims and Determination of Eligibility Unit within the Department of Rehabilitation in the Ministry of Defense. This process is complex and lengthy, partly because of the need to obtain medical and factual material from various sources. The Compensation Officer determines the eligibility or ineligibility of the disability claimant. A claimant who is recognized as being disabled is invited to a medical committee which assesses the degree of disability and passes the information to the Compensation Officer for decision. A person who considers himself to have been prejudiced by the Compensation Officer's decision may appeal it to the Appeals Committee which operates by virtue of statute. The appeal may revolve around the refusal to recognize disability or may concern the extent of recognition and the extent of the rights ensuing from such recognition. The Committee is composed of three members, headed by a sitting or retired judge, and two members, one of whom is a physician.
The entire process, from the moment of filing the application for recognition of the disability to the decision of the Appeals Committee, can take about three years. It should be emphasized that this study does not refer to cases where the Compensation Officer approved the applicant's eligibility and the scope of the claim, but only to cases where the claim was rejected or the claim was approved but the degree of disability determined was too low in the appellant's opinion.
Appeals on decisions of the Appeals Committee on points of law are heard by a District Court, composed of three judges, and decisions of the District Court may be appealed with leave to the Supreme Court.
The explanatory notes to the Disability Law in its initial incarnation, quote Israel's first prime minister, David Ben-Gurion, as follows:
"Payment of benefits does not detract from the right of the disabled to rehabilitation... The benefit due to the disabled supplements general rehabilitation... The benefit does not exempt the State from concern for the rehabilitation of the disabled. We will help the disabled, like other discharged soldiers, to learn a profession, continue their studies, get along at work, settle down or in other business." [3]
The above description shows that despite the distinct differences between the Community Courts and the Appeals Committees, these are forums, each of which, in its own field, plays a part in the system established by the State specifically targeted at eventually bringing about the rehabilitation of the litigant who is deemed eligible for assistance. This rehabilitation includes giving consideration to broad aspects of the litigant's life, work and livelihood, housing, family relations, acquisition of education and more. The rehabilitation process relies on professional assistance by experts in multidisciplinary fields, financial assistance, including methods of receiving benefits or eligibility for accommodations in respect of payments due to the authorities, and various other adjustments.
2.2 The Study Process
The study was conducted by means of interviews with lawyers representing clients in the forums described herein. The interviews were conducted in a semi-structured manner, allowing the interviewees to reflect on their experiences, and enabling them to reveal their insights, dilemmas, and the questions and feelings arising during the management of the process.
Ten interviews were conducted in the Community Courts. Seven of them with defense lawyers representing defendants in the proceedings, and three with lawyers representing the State in the proceedings. In addition to these interviews, observations were also made in the Tel Aviv, Ramle and Be'er-sheva Community Courts by the authors of this article.
The key questions in the interviews focused on: (a) the professional background and feelings of the interviewees towards the legal profession; (b) the lawyers' role and experiences advocating in the Community Courts (the tools and skills required of them, their role in the procedure, professional self-perception and more); and (c) the impact of the Community Court experiences on work performed outside that court.
Regarding the Appeals Committees, six interviews were conducted with lawyers representing appellants.
The key questions in the interviews focused on: (a) the professional background and feelings of the interviewees towards the legal profession; (b) the lawyers' role and experiences advocating in claims for recognition of disabilities or claims concerning the extent of rights under the Disability Law and in particular in the Appeals Committees (the tools and skills required of them, their role in the procedure, professional self-perception and more); and (c) their experiences when advocating in claims for recognition of disabilities or the scope of rights due by virtue of such recognition outside the framework of the Disability Law, that is to say in other legal forums (for example, claims for recognition of disability due to a civilian workplace injury).
3. Study Findings
We will now turn to a description of the study findings with reference to three main issues that emerged from the interviews conducted with the lawyers representing clients in the above forums: the lawyer-client relationship; the lawyer-system relationship; and the perception of the profession and the role of the lawyer.
3.1 Lawyer - Client Relationship
The significant differences between the forums - criminal (Community Courts) and civil (Appeals Committees) - and correspondingly advocacy on behalf of a person accused of the commission of an offense that harms society, and advocacy on behalf of an appellant who acted in the service of society and was injured in the course of that duty - might have been expected to create significant differences in the respective lawyers' perception of the interpersonal connection and relationship between lawyer and client. However, the research suggests that despite the significant differences described above, there are also many common features in the respective lawyers' perception of the nature of their role and shape of their interpersonal relationship with their clients. This is reflected not only in conceptual terms but also in actions taken to establish a valuable relationship between the lawyers and their clients. We shall consider some of these below: -
3.1.1 Developing an holistic perception of the person in need of rehabilitation
The findings show that lawyers advocating in both forums have developed an approach that views the client holistically, not just as a person who requires their service at a specific juncture in time. This view respects the complexity of the person standing before the lawyer, his abilities, lifestyle, challenges, relationships, and more. The observation creates an interpersonal relationship between the client and lawyer and builds trust in the lawyer's professionalism. Furthermore, this approach which creates a multidimensional picture of the client, instills in the lawyer empathy towards the client, a desire to help him and, according to the lawyers, leads to more successful advocacy that yields results.
The lawyers note that in the Community Courts, they are exposed to the client's life, personal story and distress. Defense lawyers point out that the intensity of advocacy leads to a personal connection and deeper acquaintance with the defendant and his story. The increased exposure and close connection have an impact on them personally, and increase their empathy and desire to help:
"Whether you want it or not, you are in their life. You know their children, even if not from inside. You know that their child received a certificate of recognition because he was number one in reading in first grade, or you know that this child was injured and cut his finger and that mother had to leave work early… you know the most intimate details of the defendant, and it tugs at your heart strings."
The holistic view of the client is expressed by a display of interest in the client's life and concern for his care and well-being in a way that exceeds the limited scope of the client's appearance in court and the subject-matter of the dispute. It involves initiating telephone calls and sending messages showing interest and encouraging the rehabilitation process.
"A probation officer can't send a WhatsApp to the client, telling him to 'be strong,' asking 'how are you,' 'have a good day,' etc. I can."
"I have a defendant that I call. She was sick, so I asked - how are you? She asked me: Really, you called just for that? I replied: Yes, I really called just for that. I have nothing to notify you. Everything is fine, I phoned because you were sick.
Q: And in your view, is that part of your role as a lawyer?
A: It is not a formal role to call clients and ask how they are feeling, or, if someone has given birth, to take an interest in the health of the baby and ask if all is well. Obviously, this is not a formal role. But it makes my job both easier and better, as soon as a defendant looks at you and sees that you really care about him."
In the Appeals Committees - lawyers talk about taking an interest in the client's health throughout the period of advocacy and the importance of obtaining updated information about him or her. According to the lawyers, familiarity with all the elements of the client's life creates trust, supports the client, and establishes an inter-personal relationship which enables the client to cope with the circumstances of his life which are often difficult.
"Don't hang up... a month has passed and you haven't talked to him - send him a WhatsApp 'how are you' ... if you sometimes have to visit the hospital - you go ... all this helps them mentally in the procedure itself ... they tell themselves 'he is behind me, he is with me' ...".
Further, some lawyers note that familiarity with the client and all aspects of his life, including, for example, visiting the client while he is undergoing hospital treatment, leads in their view to better representation:
"I traveled twice to see him, the client, in hospital treatments. ... I felt compelled to be there. When you are there, then you are already into the story... When you are in the story and in the pain, then it is easier for you to translate the feelings of the disabled person ... because of that, it is not always just to show empathy for the disabled person, that I share his pain, but it is to understand the mantle around disability. You have to really understand his entire life, the work, the interpersonal relationships ...".
The holistic approach, similar to that applied in the Community Courts, also includes interest in the life cycle of the client and acquaintance with his family or other associates. Thus, for example, a lawyer representing appellants in the Appeals Committees tells how he meets and talks to his clients' family members. The family members are a source of information and equally important a source of assistance in transmitting the information to the Appeals Committee. The lawyer explains that he often invites the spouses of appellants to the Appeals Committee because they can eloquently describe the appellants' difficulties and needs as these are experienced by the family and this conveys a more complete and accurate picture of the situation.
"Q: Do you also meet with the clients' circle? A: Yes, especially where there is mental impairment. You get a lot of information and even when you bring the disabled person before the Committee, it is usually easier for someone like his wife to tell about him. Generally, in a post-traumatic [client], the women hurt very much. You see it on them, they spill all the suffering of their husbands, men are more inhibited."
The holistic approach to the client, one which sees him not only as a "disabled appellant" but as a person with varying abilities, social connections and the like is also relevant to the interesting fact that emerges from the interviews and that is that the lawyers often encourage their clients to return to the labor market according to their ability.
It also fits within a paradigm which sees a person as embodying a set of healthy potentials which can be uncovered and enhanced to improve the life of the individual and his community - rather than as manifesting problems and dysfunctions which need to be remedied as suggested by the disease paradigm.
"Sometimes I tell them to stop arguing with them about missing benefits. You can work four hours, go out to work. Don't be dependent on them. You can, you're smart, you have experience, don't be dependent."
This issue is of particular interest because the lawyers describe the existence of a built-in conflict in the procedure followed under the Disability Law, between the aspiration to rehabilitate the disabled person, and the way in which the economic rights due to him are calculated. We shall consider this issue in connection with the discussion of the dilemmas facing lawyers.
3.1.2 Required attributes for advocacy: patience, attention, acceptance and empathy
The findings of the study show that advocacy in both forums under discussion necessitates the construction of a lawyer-client relationship which demands such characteristics of the lawyers as the capacity to listen, accept, and express empathy. In addition, lawyers advocating in the Community Courts, talk of the need for patience as the process of rehabilitation inevitably includes ups and downs. Lawyers advocating in the Appeals Committees talk about a double need for patience - patience towards the clients and patience due to the length of the process of assessing the claims and slowness of the system.
Regarding the Community Courts - lawyers testify about themselves that they require a high degree of tolerance and acceptance regarding their clients' stories, compared to the advocacy required of them in other criminal proceedings.
"You need a lot more acceptance. By virtue of the fact that you spend more time with people, you also receive more content than you would receive or be exposed to elsewhere, and which you would not know about. Things that I would not tolerate in respect of ordinary defendants, that I would disagree with - but in the Community Courts- yes."
Likewise, among the lawyers advocating in the Community Court, there is a growing understanding that the clients' rehabilitation process within the framework of the therapeutic contract in the Community Court, is long and requires patience and staying power as it is not always conducted in the most desirable and expected way. One of the significant insights repeated by the lawyers interviewed is that the rehabilitation process is not linear, but spiral, with falls being an integral part of the rehabilitation process:
"You can stumble. I mean, if you are involved, and there is a setback, it does not negate the procedure and the way. If you get to two from scratch, you do go backwards, but not to zero. You go back to one and a half."
And also:
"The prosecutor's office also understands in the community process that patience is needed. ... It accepts that the rehabilitation process has its ups and downs and the 'fail' card should not automatically be pulled out."
Regarding the Appeals Committees - the lawyers talk of their need to act with considerable patience. Patience is required of them on two levels. In the field of lawyer-client relations, the lawyers express feelings of respect and understanding for the patience required.
"You need a lot of attention, a lot of patience, even if I explained it to him 80 times, I'll explain it to him once again ... One must really be patient with them, things you already know and they will tell you all over again."
On the other hand, with regard to the prolongation of the proceedings and the patience required to process the claim, the lawyers advocating in the Appeals Committees display disquiet and anger at the system.
"There is a lack of organizational understanding, how to deal with such processes ... The system needs to understand that it cannot manage the treatment of the disabled in the same way as it handles the procurement of equipment. These are different worlds, different specialties, different challenges, [the system] has not internalized this."
"One needs legal patience... I call them marathon claims... They start today and could end in another three and a half years."
Another important attribute that lawyers advocating in the Appeals Committees mention is the capacity to listen. They refer to the considerable empathy which they feel for their clients, their willingness to hear and understanding of the value of listening to what the clients say, including in cases where the clients are dealing with psychological problems and a degree of attention is required which involves acceptance and tolerance. The interviews reveal that lawyers demonstrate listening and inclusion capabilities even when the client's behavior is highly emotional and involves attempts to communicate with the lawyer outside acceptable working hours.
"They need an attentive ear, and your cellphone, and if it's mental illness like a post-traumatic event, then if he calls you at eight or nine in the evening you shouldn't be upset about it."
"What's your job as a lawyer? To listen. They can sit with me for hours and tell me the stories they deal with."
3.1.3 The importance of giving voice to the client and empowering him
In both forums, the lawyers speak of the importance of empowering the client in the process of managing the conflict and link the empowerment of the client to the space given to him to express himself directly.
Regarding the Community Courts - the lawyers address the issue of the dialogue between the defendant and the judge and the importance of giving the defendant room to express himself. They see this as a factor contributing to the success of the rehabilitative goal.
"Here in every hearing the defendant is at the center, and he speaks, and tells his story, and the court wants to hear. It's one of the elements that makes the defendants feel that it's a different procedure. In my opinion it often helps them to cooperate: 'They listen to me, are ready to hear me.' And perhaps, for the first time, people feel - 'They are listening to me'".
Regarding the Appeals Committees - the lawyers emphasize that their main job is to prepare the claim and the ongoing work of handling it. At an Appeals Committee meeting, it is important for them to give the client the space and time to speak and tell his story directly, and in particular to convey a sense of his condition and feelings.
"I try really hard to avoid talking and let the client speak, sometimes it helps because he gives a few examples of lack of function, authentic cases from home, from his personal life."
3.1.4 Perception of the role of personal protection, source of information and shaping expectations
In interviews with both lawyers, those advocating in Community Courts and those advocating in Appeals Committees, a clear-cut concept of the job emerges which sees the lawyer as performing unique, therapeutic functions by virtue of having been mobilized to achieve the rehabilitative goal.
In the Community Courts - it is possible to identify signs of the prosecution's admiration for the defendants. These signs are the outcome of a collaborative-therapeutic concept of the prosecutorial role and a fundamental shift in the perception of that role. For example, even in cases where it has been decided to terminate the proceedings in the Community Court and plead regarding the defendant's sentence, it is sometimes actually the prosecutor who seeks to highlight the defendant's strengths and thereby perhaps encourage future rehabilitative action.
"The failure of the proceeding is not a serious failure. It is to the credit of the defendant that in the recent period he has appeared for hearings, cooperated as much as he can, but this has still not been sufficient for a Community Court proceeding. He has started a proper job, and persists there. True, he failed in the process, but to his credit - no more files have been opened against him since 2014 and it is important to note this ...".
In addition, the lawyers point out that the work in the court has exposed them to important and useful information concerning tools and services relevant to the rehabilitation process. This information helps them perform their role within the rehabilitation system and is useful to them in other cases as well. [4]
"I have been exposed to a wider basket of tools and services that are available. If it is a lowering of bureaucratic barriers, or vocational training, employment programs, options for protected work - I have been exposed to a wider basket of things that I did not know existed. In this sense, my rehabilitational understanding has expanded."
Regarding the Appeals Committees - lawyers describe the concept of their role as amounting almost to personal protection of the emotional aspects of their clients. It is interesting to note that in addition to addressing therapeutic aspects of their work which are connected to listening and acceptance, as discussed earlier, lawyers consider one of the therapeutic aspects of their role to be shaping the realistic expectations of their clients.
"Often, I feel more like their psychologist or therapist... An attentive ear to anger. It's okay. It's part of the job."
"The therapeutic aspect of the profession... To tell him what will probably happen to him as well".
"You have to be very careful, because if you create expectations, they will be disappointed afterwards. They will be disappointed with you as a lawyer, with the money they paid you, with the rehabilitation department and the doctors, with the entire world."
As noted, in the context of the multidimensional approach to the client, lawyers engaged in advocacy in disability recognition claims and claims concerning the scope of ancillary rights, seek to encourage their clients to return to education and employment. This issue causes lawyers frustration and leads to criticism of the system on the grounds that the system not only fails to offer clients an incentive to rejoin the workforce but actually deters them from doing so. This is because the level of benefits given to those who are recognized as disabled may be reduced if they are in employment. The result is that the disabled servicemen feel genuine concern that if their attempts to integrate into the labor market fail, they will find themselves both without a pay packet and ineligible to receive the requisite living benefits. In referring to these matters, the lawyers express therapeutic thinking that differs from the goal of maximization of profit in tort claims, which portray the injury in such a way as to obtain the highest monetary figure.
"Insofar as the disabled person deals with his disability and not his career or work it greatly diminishes him and also leads to an aggravation of his condition. If the rehabilitation department would help those disabled people, sometimes at a much lower cost, and approve part-time work, and funding for studies as well, for that student who received 20 percent disability and not said to him: 'If you work then fund your own studies, you are not poor', they would not feel so incapacitated and frustrated each time."
Another therapeutic issue that emerges from interviews with lawyers, both in the Community Court and in the Appeals Committees, concerns the accumulation of knowledge and information about various professional experts and rehabilitation and care options in the community, leading to the referral of clients to the treatment which the lawyer deems appropriate.
"I tell them to go to a specific specialist who takes care of it, do it… I know the specialists, so I know… At Tel Hashomer Hospital there is a special clinic and, if not, then this clinic...".
3.2 Lawyer-system relationship
Lawyers' perceptions of their relationship with the systems, in which they advocate, differ greatly in each of the forums examined. The lawyers who represent clients in proceedings in the Community Courts express considerable appreciation for the manner in which these courts operate. The collaborative approach in these courts creates, among lawyers, a sense of partnership directed at optimizing the success of the rehabilitation process. They see the system as operating in a positive and correct way and themselves as part of the system contributing to its success. In contrast, lawyers advocating in the Appeals Committees believe that the conduct of the system is incompatible with the rehabilitative goal. They describe the difficulties faced in working with the system, the duality they feel having to fight the system on the one hand and yet understand its difficulties and mediate them to the clients, on the other hand. The lawyers believe that changes must be made to the way in which the system perceives the clients and manages the claims.
3.2.1 The proper approach to managing and resolving the conflict
In fact, it is in the Community Courts which handle criminal cases that a collaborative approach to conflict resolution is practiced. Cooperation is evident between the various parties involved in this process, including the prosecution and the defense. The client's needs and interests are examined, therapeutic adjudication is implemented and the court seeks an agreed solution embodied in the therapeutic contract accepted by the client. In contrast, the civil action in the Appeals Committee is managed using the traditional, adversarial approach. Here rights and obligations are examined and the claim is seen as a dispute over a limited resource for distribution. The lawyers representing clients before the Appeals Committees complain about this approach and believe that it misses the mark, in terms of the goal of rehabilitation.
Lawyers advocating in the Community Courts believe that implementing a collaborative approach reflects the correct premise whereby it is this approach which can successfully achieve the rehabilitative goal, for the benefit of the individual participant as well as society as a whole. They regard therapeutic adjudication as being key to the success of the process. [5] They describe adjudication which is characterized by expressions of empathy and concern on the part of the judge, and an emphasis on respectful interpersonal communication with both lawyers and clients, garnished also by the use of humor. Reducing the level of formalities in these proceedings, compared to the level of formality prevailing in adversarial proceedings, is seen by them to contribute to the rehabilitation process.
"The judge is less formal - encouraging, praising, familiar with cases. It is not trivial ... she talks to people at eye level. It is not something you are used to seeing."
According to them, the collaborative-therapeutic approach directly impacts their professional behavior:
"When I come as a community lawyer, I do not come with a confrontational attitude. I come and I am forgiving; I come and I am ready to absorb."
In addition, lawyers note that the insights they gain from working in the special courts and experiencing their conduct also assist them in their professional activities in other courts.
"The community process helps to see the complexity of the picture - the origins and backgrounds of the people who have offended, and you get to know the society in the State of Israel, the various sectors and the various situations there. It also helps to understand other cases a little better ... The fact that the community process is holistic and tries to help in every direction, is a very, very correct way of thinking, and in appropriate cases it can really make the necessary change, and I take it with me to other cases."
Lawyers advocating in the Appeals Committees believe that the system has adopted an adversarial worldview, which polarizes the conflict and obscures the common goal of rehabilitation. In the lawyers' view the system operates on the erroneous assumption that the appellants do not speak the truth and consequently imposes a higher burden upon them to prove their claim out of a desire to protect the public purse. Adherence to the adversarial approach to claims management creates a negative sense of alienation and stirs feelings of fear and distrust among the clients.
"They used to say... 'When in doubt there is no doubt, we act for the benefit of the disabled'. Today, they create the doubt. A feeling that everyone is a liar until proven otherwise... In a paper I wrote under the guidance of Dr. Perlman we showed that while 85% of the civil cases that are now being processed in the general court system are not being handled in an adversarial multi-stage adjudication process that ends with a binding decision, but conclude with arrangements and compromises that are the result of alternative procedures or compromise-oriented judicial proceedings - in the claims of disabled security force personnel, 85% of the cases are processed in an adversarial manner and end in a decision."
"It's an unpleasant situation, the disabled claimant feels guilty, feels a liar, a fraud ... It's a terrible thing, but that's the way it is."
Lawyers believe that the system should modify its core assumptions and propose changes that will lead to it adopting and applying a more collaborative and therapeutic approach to resolving disputes. Among other things, they suggest that the Appeals Committees employ persons who will monitor therapy progress, in a manner similar to the operation of the Community Courts, thus enabling a recognized disabled claimant to attempt to work without fear that this will immediately indicate a level of ability which will compromise the scope of his eligibility for benefits. Such a measure would allow the claimant to benefit from a lengthy trial period of work experience. Another proposal is to enable claims regarding the scope of rights to be determined in mediation proceedings.
3.2.2 The lawyer as an independent individual and as part of a group
Another interesting topic that emerges from the remarks of the interviewees, although in this context the experience of those who advocate in the Community Courts differs from that of lawyers advocating before the Appeals Committees, relates to their work experience in the spectrum that ranges from the individual lawyer to the lawyer who is part of a group with a common purpose.
Regarding the Community Courts - lawyers report that their central experience when advocating in these courts is that of working together; they perceive themselves to be individuals working in a team with a common purpose. This experience is seen by them as very positive and one which enables high-quality professional work to achieve the goal. Further, this experience gives the lawyers a sense of professional and personal satisfaction. They describe the collaborative work as providing room for deliberation and shared thinking, free of personal interests, and focusing on what is right for the participant in the program.
"In normal defense work, you are with the defendant and the probation officer is the enemy. Here we work together, debate together, and that is what happens when one works in a team."
"We are now a team. Initially, we were excited because it is also very new, and everything pioneering is interesting. But this atmosphere of teamwork also gives added strength. There is greater understanding, fewer quarrels in the court, and the ability to solve things effectively and reach understandings - which is very conducive."
Regarding the Appeals Committees - the lawyers describe an opposite experience; a sense of loneliness, a sense of the individual's struggle against the system. They talk about having to deal with feelings of frustration over time as a result of bureaucratic attrition on the part of the system. They experience their position as that of a weak individual who is confronted with a strong system that lacks sensitivity or a sense of partnership in processing the claim. One of the interviewees states that she believes she made a mistake when she opened an office on her own and now has no one to talk to or vent her feelings during her work representing her clients.
"One of the mistakes I made when I opened the office was that I opened it on my own. If I would have had a partner to whom I could vent and who would give me a sense of proportion and help me reset, it would have been easier. Carrying everything alone is very difficult."
3.2.3 Interpersonal and technical communication
The issue of communication, both in the technical sense of the means of communication available to the lawyer in his interaction with the system, and in the sense of the interpersonal relationship between the lawyers and representatives of the system, emerges in the interviews as a theme in itself.
Regarding the Community Courts - the lawyers speak of the fact that there is an open and inviting channel of communication between the staff members in the court and the lawyers advocating there. This is true on the technical level - they exchange telephone numbers which are used to pass messages between them - as well as, substantively, each court hearing day opens with a joint team meeting where the parties can raise concerns and requests and together discuss options for solutions. In addition, the defendant also has the Community Court coordinator's telephone number, which he can contact at any time for consultation and problem solving.
"The work is performed behind the scenes. If I have to quarrel with the prosecutor - I do it over the phone. If I have to be in contact with the probation officer or get something from the judge - it can be passed on beforehand, coordinated beforehand, closed beforehand. This is good for the process."
"There (in the morning sessions), we stand up for our opinions, express them. Of course, people are eager to listen to everything that goes on there, trying to formulate a position that is right and proper ...".
Regarding the Appeals Committees - the lawyers talk about a system lacking adequate communication and where the technical difficulties create a negative experience and feelings of disrespect, insensitivity and lack of care, even if unintentionally. A prominent complaint emerging from the interviews concerns the absence of efficient and modern technical measures for submitting documents. Lawyers are required to submit documents via fax machine, as opposed to scanning and emailing, and thereafter make a phone call to a clerk to confirm that the documents have reached their addressee. Time and again, the interviewees complain that this action is time-consuming and costly and creates a sense of bureaucratic attrition. The lawyers state that they believe that the department responsible for receiving the material and collecting the data on behalf of the system suffers from insufficient manpower and outdated technology. The ineffective technical communication creates a layer of negative feelings and disrupts the appropriate respectful interpersonal communication between the system's representatives and the lawyers and their clients.
"Bureaucratic rigidity... You have to send a power of attorney and after that make sure the fax has arrived and after that send a claim form."
"You have to call, travel, you have to initiate all the time, they do not initiate and call back."
"Q: What happens to them [the claimants] during the process?
A: They become ... non-conformists... always angry, always raging, always frustrated." [6]
3.3 Lawyers as mediators between the system and the clients
Advocacy in the two forums, despite their differences, share one feature, namely, the lawyers' perception of their own role as mediators between the system and the client.
Thus, in Community Courts, lawyers emphasize how they guide clients and provide them with explanations on behalf of the system, out of the recognition that they are partners in the system which is designed to promote the welfare of the defendant. Thus, guidance which the lawyers sometimes give to their clients in the Community Court, is not something they would impart in other types of criminal procedures, and revolves around the defendant's ability to take responsibility for his actions and the process he is undergoing, for example:
"I prepare him. I say to him - listen, you were late to the probation officer this week, they really didn't like it, take into account that they will reprimand you in the hearing today. Don't start arguing, and don't start shouting. You were late - it may have been justified, maybe not. This time take responsibility - take a step back, say it won't happen again, move on. If it had been a normal court, I would stand beside him and shout 'What is this, it was justified, what do you want from him'. This is the difference for me. There are some things I have to agree with."
In the Appeals Committees as well - despite the anger and criticism at the conduct of the system, the lawyers emphasize the absence of deliberate negative behavior or human opacity on its part.
The lawyers explain that the difficulties ensue from systemic problems of lack of sufficient manpower and outdated technology. They explain to their clients -
"The system imposes this mode of conduct on the claims clerk, limited resources, lack of technological systems that would improve communications, lack of interactive systems, it decrees conservatism, slowness, resistance."
In this context, lawyers see themselves as mediators, as intermediaries who are aware of the needs and interests of the client, on the one hand, but also the system's limitations and problems, on the other hand. The lawyers therefore describe their role as mediating reality for their clients, explaining the difficulties of the system, guiding their clients' behavior in this context, and in this way also maintaining their clients' trust in the system.
"Sometimes we restore their trust in the system."
"The disabled... who need regular medication and things like that, I as a lawyer already tell them how to call the hotline, what extension to press, what to ask for... I tell them to buy a fax machine, because all day they will have to send faxes."
3.4 The Profession - Choice, Satisfaction and Challenges
Advocacy in the above courts has characteristics that go beyond 'zealous advocating'. Among other things, we examined what motivated lawyers to choose this role, their level of satisfaction with this choice, the challenges they face and the changes they would like to make, if any, in the systems in which they operate. We will present some of the themes that emerge from the interviews in this context.
3.4.1 The motives for choosing to represent clients in the above issues and forums
In the Community Courts - it is interesting to find that the lawyers report that their concept of dispute resolution favored a collaborative therapeutic approach even prior to these courts being launched, and that they believe that they have been selected for this role because their views probably came to light in a variety of ways. They regard the unique court as a forum that effectively allows them to implement their professional conception. The lawyers who serve as defense advocates in the special courts talk of a sense of mission.
"When people talk to me about all the evil in the profession, … there are also good things about criminal defense, being a lawyer. Being a defense lawyer is a vocation for me. It is using your power to do good things.... and this community thing really reinforces it. It increases the mass of good I can do compared to the usual."
In the Appeal Committees - the same sense of vocation is also reported by the lawyers. They report that their choice of this branch of the legal profession is due to a sense of social mission and a desire to help injured security personnel out of appreciation for their service. Two of the lawyers note that they themselves were injured during their service in the security forces and chose to engage in this professional field in order to help others cope with the system in light of the difficulties that they themselves had encountered.
"Without us, the disabled - cannot manage. We serve the public here. Believe me we make more money in the other cases in the courts and not in these cases. These are the cases you do for the public, for the soul, sometimes also pro bono because these people do not always have money to pay."
Another element highlighted uniquely in relation to advocacy in the Appeals Committees concerns professional integrity. The lawyers report that they avoid representing a potential client if they do not believe that he is genuinely injured but rather is attempting to obtain benefits to which he is not entitled. Similarly, they avoid representing any client who they feel has little chance of succeeding in order not to feel that they are exploiting him and charging fees for handling a long and difficult procedure, which ultimately will end in failure.
3.4.2 The degree of professional satisfaction
In the Community Courts - the lawyers report a high degree of professional satisfaction. They indicate that they enjoy working in this court and wait for the weekdays when this court is sitting. Among those who state that the approach taken by the court is consistent with their own previously held view, this forum is seen as one which has taken away from them the burden of the adversarial approach required of them in other courts and as a forum that strengthens their sense of self-worth and professionalism. They report a feeling of satisfaction and joy.
"I saw him at the police station and I told him - I'm going to reward you. I really remember that. During the arrest procedure I placed him in rehabilitation in Ilanot [rehabilitation center]… on the day that he was released to Ilanot I took him in my car and I went and visited him and checked-up on him, and it was really important to me and pleasing, and I felt very satisfied with that."
One of the sources of satisfaction that lawyers experience in the Community Courts is the sense that their work is valuable and creates change. The encounter with the system in the judicial process involves a positive emotion.
"People undergo changes there: physical - how they talk, how they look, their relationship with family, people who say to me - you saved my life. You brought me back to life, a mother who cries and tells me that 'I had already given up on my son'. It is hard to measure this.. there are situations where there is almost no dry eye among the crowd, everyone including the judge is really emotional."
These feelings strengthen lawyers who experience professional burnout and give them a reason for staying in the profession -
"It really strengthens me to remain a lawyer. Even when ... I'm pretty much fed up ... the Community Court is very supportive. You feel like you're really doing something."
In the Appeals Committees - it can be seen that the emotions of lawyers aiding their clients in managing the lawsuit are complex. Exposure to the clients' stories and the effort required to represent them require mental strength. Out of recognition for the service of their clients, the lawyers must exercise considerable mental fortitude in order to represent them properly.
"It is a really special group ... that needs a different attitude ... it is thanks to them that we exist here in this country."
Towards the system, which lawyers experience as functioning poorly and exhausting, lawyers sometimes feel burnout and professional frustration. Thus, some lawyers demonstrate high professional satisfaction based on their experience as helping people who deserve assistance in achieving what is justly due to them. This feeling is heightened when the result is satisfying in the end and they see themselves as partners in the struggle of the small and weak against the big and strong.
"Clients who really need this recognition... and suddenly they see you as their world ... and then 'wow, look what he did for me' and that's a great sense of satisfaction."
However, for some lawyers, the struggle they feel in representing clients creates a sense of professional fatigue, excessive identification with clients, and hence the need to create distance and set emotional boundaries without which they experience dissatisfaction and the need to make professional changes.
"I thought to myself that over time I would know how to produce that distance but the reality was the opposite. I finally reached the position where I was afraid to hear the phone ringing because maybe it was another client... I couldn't... I transferred it to another lawyer. I look with wonder at people who are able to do all this for so many years."
3.4.3 Professional challenges and dilemmas
The profession content that emerges from the interviews presents lawyers with complex challenges and the need to deal with various novel professional dilemmas.
Regarding the Community Courts - the difficulties and dilemmas mentioned in interviews with lawyers advocating in these courts primarily revolve around the redefinition of their role in the collaborative system and how they should properly conduct themselves within that framework. This is mainly understood to mean that the lawyers representing the State must safeguard the interests of the system and the public, and, for example, not provide accommodations to a defendant merely out of a sense of friendship with the other members of the court team. Dilemmas raised in this context concern, for example, the extent of disclosure of information, and the tension between concealing information on grounds of attorney-client privilege vis-à-vis the importance of sharing information in collaborative work.
Replacing traditional roles and the tension between adopting a therapeutic vision out of a desire to bring about the defendant's rehabilitation, on the one hand, and traditional thinking about the contents of the defense lawyer's role, for example, on the other hand, raises dilemmas as to how to respond and act to shape the client's normative behavior. Thus, for example, one of the defense lawyers states in his interview:
"Slowly, I acquire more knowledge, and develop a therapeutic language. So, what happens if I suddenly think that we need to be stricter with the defendant? Should I be the one who is stricter with him? But I represent him, and if they think something softer will help and I don't think so?"
Another dilemma concerns cooperative conduct in the court that exceeds the scope of its activities as a court of law and, in particular, attending various events organized by the court in which staff, litigants and their families participate, such as toasting a holiday. Dilemmas that arise in this context concern the possibility of crossing boundaries and the danger of being viewed as biased - in light of professional ethics and the customary rules of conduct in criminal proceedings applied in courts that follow the adversarial approach.
"At the end of the day we need to know that we can ask to send him to jail. We must remain unaffected, independent. If he becomes my friend, if we play backgammon together.., and light Chanukah candles together - how can I apply to send him to prison later? It can hurt the objectivity that I have to retain. So, we create the balance - when and when not, and who yes and who no, and how...".
Regarding the Appeals Committees - the therapeutic approach that emerges from the interviews is also reflected in the lawyers' choice to encourage their clients to try to return to the labor market. In terms of the therapeutic approach, the lawyers' efforts are particularly commendable in light of the fact that they have chosen to follow this path in resolving what is far from a simple dilemma. The lawyers describe a built-in conflict in the procedure under the Disability Law, between the aspiration to rehabilitate the disabled person and the way in which the economic rights due to him are calculated. The law is structured in such a way that the rights are derived from the level of the disability. Rehabilitation which leads to a return to the workforce can therefore reduce the benefit. There are disabled veterans who try to return to work but fail in that endeavor over time, for various reasons related to their disability. These people fear that if they make that effort to work, their rights will be impaired and that therefore it would be better for them to avoid such attempts and instead intensify the description of the injury and its impact on their lives before the Committee.
One of the lawyers advocating in the Appeals Committee who has been exposed to therapeutic adjudication as part of her Master's degree studies notes:
"People come with a statement such as - 'well then, I won't go to work so that they will give me greater disability'. I get hives from these statements. For me, the client is first and foremost his well-being. For me, rehabilitation is number one. If you can - do… This is a dilemma which is general. Not every lawyer considers this question I think, and therefore they will say - 'sit at home, and don't go out to work until I tell you'...".
"As someone who believes in rehabilitation, I think the dichotomy that the Ministry of Defense creates is detrimental. If the disabled person were to know that if he tried and succeeded for a period of time and then for whatever reason quit and got thrown out of the workplace, the Ministry of Defense would still be there for him and not see the experience as being to his debit… he would try much more readily... The chances of succeeding in rehabilitation would be greater and that would first and foremost be for the benefit of the disabled and also for the Ministry of Defense, because it would not have to pay living benefits."
Another challenge the lawyers face in the Appeals Committees touches upon their own psychological well-being. Most of them describe emotional difficulties associated with their work due to exposure to their clients' stories in which the clients share all the details of the events leading up to their injuries and the manner in which these injuries impact their lives. Some of the lawyers' descriptions of the emotional baggage associated with their work are consistent with the phenomenon of secondary trauma or vicarious traumatization known from the literature (McCann and Pearlman, 1990; Seamone, 2009; Katz and Haldar, 2016).
"I am not weakened, but sometimes it really hurts. If you see medical, social, systemic injustice, it is very upsetting, very hurtful and upsetting."
"It is always emotional. It is unpleasant to hear witness testimony, for example. The judge was crying, the typist was crying, the witnesses we brought were crying,.. I was crying."
Another issue that arises from the interviews with lawyers advocating in the Appeals Committees is that their work as lawyers dealing with tort disputes includes also representation of clients in other legal forums such as the National Insurance Institute. The lawyers note that representing clients in lawsuits for disability recognition and receipt of benefits before the National Insurance Institute is a much more efficient and accessible process. Thus, for example, submission of information is carried out through the Internet.
A comparison between advocacy in non-security-based disability claims and advocating for disabled veteran security personnel particularly outrages lawyers, as they view the security forces as a sector of the population to whom the law is intended to pay tribute. In these lawyers' understanding, the actual facts are incompatible with the legislative goal. In their mind, the approach adopted in the Committee procedures is wrong and the working premise of the system should be one that stands beside the appellants.
"If, in [the] criminal [sphere], it is said that it is preferable to have one criminal outside than an innocent inside, it is even more true here, where just money is involved. It is better that someone who doesn't deserve it gets it, and be a little bit wrong, than that someone who does deserve it doesn't get it."
Another challenge faced by the lawyers advocating in the Appeals Committees concerns the duality required of them when approaching the management of the dispute during the process. Their remarks indicate concern as to how to act properly and the meaning of good counseling in terms of managing the conflict. The duality required during advocacy ensues from the fact that in the relationship with the client, they must employ a collaborative, therapeutic approach, while at the same time adopting an adversarial approach vis-à-vis the system and the committees operating within it. This means that during the ongoing representation process as well as in the Committee meeting, they must be empathic and accepting towards the client while at the same time combative and insistent towards the system.
3.4.4 Professional education and training
In both forums, the lawyers note that it is of great importance in their work to acquire knowledge and insights from the fields of psychology, social work, and behavioral sciences. They note that knowledge gained in studies outside the Faculties of Law, such as in academic or professional training courses that they chose to take, equip them with important tools for their advocacy work in the forums in question.
Thus, regarding the Community Courts, one of the interviewees notes -
"A criminal lawyer is often a social worker, and he is also a psychologist, and a psychotherapist. His job is to calm people and on the one hand know how to talk to the prosecutors in their language, and on the other hand, know how to speak to the court in a language that is politic, legal. Additionally, he must know how to speak to his client and his family which is sometimes tough and sometimes simple, so that they will understand him. So, basically, in every case a defense lawyer needs to know how to speak three different languages to get what he wants."
And regarding the Appeals Committee, an interviewee explains -
"You can't look at this field through a legal periscope alone, it simply doesn't work. I haven't learned social work, but I trained at the Institute for Social Workers... It's a must. Anyone who has just studied law will have a hard time getting into the soldier's mind. You need to know how to question him, how to extract information from him ... so that he will feel comfortable, so that he will not feel stressed, so that he will not feel as if he has his back to the wall... The courses in education helped a lot, also those in psychology."
4. Discussion
Therapeutic jurisprudence calls for the examination of norms, legal procedures, and the content of the role of legal agents with a view to exploring how the law can be made more humane and unifying, and thereby achieve constructive, positive and restorative results (Wexler, 2000). Setting a rehabilitative goal is not enough, it is necessary to examine the procedures implemented to achieve that goal and the conduct of the parties. Additionally, there must be awareness of the gap which may develop between what is desirable and what is actual, between the intention of the legislature and the statute books, on the one hand, and the law in action, on the other hand (Wexler, 2014).
This study examines the perceptions of lawyers representing clients in two special forums, differing in significant respects but also resembling each other in that each is part of a system ultimately designed to bring about the litigant's rehabilitation. The litigant's psychological and social well-being as well as his ability to function successfully in society in life cycles that include livelihood, family life, education, etc. are not only his personal ambition, but also the aspiration of society. To this end, economic resources are invested and an array of multidisciplinary professionals are brought together to afford litigants opportunities to obtain support and assistance in a variety of areas.
The findings of the study suggest that legal proceedings that form part of a process ultimately designed to achieve the goal of rehabilitation of the litigant provide fertile ground for therapeutic advocacy. This can be reflected both in the representation of clients in criminal proceedings and in the representation of clients in civil proceedings.
Although there is no legal obligation to represent clients using a collaborative-therapeutic approach and the choice to do so lies within the discretion of lawyers, in practice it is possible to identify the formation of the therapeutic role perception of lawyers representing clients in Community Courts and Appeals Committees in Israel. The interviews with the lawyers advocating in the two forums differ greatly, yet are similar in terms of the ultimate goal of client rehabilitation, and reveal a concept, values and practices that are consistent with the therapeutic advocacy model stemming from the therapeutic jurisprudence movement. Therefore, although this research focuses on two specific forums in Israeli law, the findings of the research may reflect insights that are applicable to other countries where the concept of therapeutic law is being operationalized and where, among other things, the adjudicative system has established problem-solving courts.
The therapeutic approach adopted by lawyers is manifested in a variety of ways both in the perception of the legal process and their understanding of their own role within it as well as in their actions vis-à-vis their clients and the system.
It is noteworthy that the lawyers in both forums have developed a holistic view of the person in need of rehabilitation. They do not see him or her through the narrow prism of a client with a limited legal cause of action but as a person with a variety of functions, needs, attributes and relationships. They are interested in the wellbeing of their clients and endeavor to be involved in their lives by showing interest and empathy with the circumstances of their clients' lives to an extent that exceeds the interaction required to conduct the legal process.
The lawyers and their clients develop a personal relationship or a personal dimension to the overall professional relationship in which lawyers display therapeutic qualities of listening, acceptance and empathy (e.g. Ronner, 2002). They advocate the "client-centered" approach and attribute importance to "giving voice" to the litigants and allowing them to be heard directly. In both forums, the lawyers display patience towards their clients. [7]
Consideration is given to the client's social circles and in particular his family. The client's relationship with his family members is a component weighed by the lawyer and the family's voice may serve as a source of assistance in the advocacy process or as a measure of the importance of achieving the rehabilitative goal that imparts value to the work of advocacy.
Lawyers attribute importance to the way and not just the outcome. In a Community Court proceeding, the judicial proceeding is experienced as part of the rehabilitation process itself, as an arena for increasing motivation, reinforcement and encouragement. Despite the judge's supervisory role and the powers available to him, participation in the proceeding is seen as a source of support and as strengthening the defendant's commitment to society and the State. In contrast, participation in the Appeals Committees process is experienced as a source of client anxiety, and as an experience that often has negative therapeutic outcomes creating frustration and anger on the part of clients towards society and the State.
The collaborative approach to conflict resolution and the experience of working collaboratively to achieve a common goal are experienced as a qualitative and effective approach to achieving goals. They also serve as a source of professional satisfaction which adds both to the mental wellbeing of the lawyer and their decision to remain in the profession.
This finding is consistent with research findings that demonstrate the high level of professional satisfaction of judges in problem solving courts and their sense that they are performing valuable work and have a real impact on the rehabilitation of the individual and the wellbeing of society (Hora and Chase, 2009).
Adhering to an approach perceived as formal, combative and stubborn in conducting a legal process before the Appeals Committees is seen as inappropriate, and something which could potentially undermine the attainment of the objective. Lawyers call for a change in the basic premises and the way the system operates in this context and seek to apply a more collaborative and more therapeutic approach that looks at the full range of the claimants' needs. This approach may be learned from other dispute resolution and settlement procedures. [8]
The lawyers also fulfil the function of providing a source of information and mediating between the litigants and the State and its systems. They acquire knowledge about the various options available to litigants and guide them as to how to deal with the authorities or organizations in such a way as to help them in the rehabilitation process. With regard to the Appeals Committees, this mediation helps the litigants form realistic expectations, whereas with regard to the Community Courts it helps to shape appropriate behavior on the part of the defendants.
Another aspect of this mediatory function may be seen in terms of advocacy before the Appeals Committees. The lawyers criticize the manner in which the Committees are conducted but seek to emphasize that this conduct is not due to arbitrariness and malicious intent but rather bureaucracy, lack of manpower and ineffective communication systems. The topic of interpersonal communication and communication through effective technology is commended in the context of the Community Courts and the National Insurance Institute. The failure of effective communication, which the lawyers experience in the disability recognition claims and claims concerning the extent of eligibility under the Compensation Law, is a source of frustration and criticism in terms of this process.
The study of therapeutic jurisprudence, and acquisition of knowledge and insights from the world of the social sciences, in order to incorporate them into the lawyers' work (Winick, 1995) is another topic discussed by the interviewees. They believe that knowledge gained in the fields of psychology, education, sociology, etc., provides added value to their work and is vital. Moreover, they explicitly view their work as containing therapeutic elements, and sometimes describe their role as that of a psychologist in terms of its therapeutic value. So even though critics of therapeutic jurisprudence note that lawyers are not psychologists, lawyers engaging therapeutic advocacy apply insights taken from the social sciences to ensure the law in action is therapeutic.
The therapeutic functions that lawyers have undertaken also create dilemmas and pose new challenges in the context of professional advocacy. In the Community Courts, the main focus of the discourse concerns the lawyer's responsibility to maintain his role within the general system and avoid breaking boundaries. This implies the need to preserve the traditional point of view that the lawyer is supposed to represent within the process and conduct himself appropriately in terms of the interpersonal relationships that are established as part of the collaborative work with the court staff and the litigants respectively. Dilemmas of different kinds are raised in relation to advocacy before the Appeals Committees. These touch on the question of appropriate representation in light of the tension between the desire to encourage the client to rehabilitate and the struggle to obtain the greatest possible financial benefits for him. The therapeutic aspect involved in guiding the client and encouraging him to return to the labor market is countered by the fact that the client's attempts to find employment and persevere at work may reduce the rewards and benefits to which he would otherwise be entitled and breach the economic safety net due to him. Representation in this process may also take an emotional toll on lawyers and often is not financially lucrative.
Overall, the lawyers advocating in the above forums enjoy a sense of self-worth arising from a sense of social mission and the performance of valuable work. Community Court lawyers express a high level of professional satisfaction, which is also related to satisfaction with the conduct of the system in which they operate. Appeals Committee lawyers feel that changes are needed in the way the system is managed. This sometimes undermines their professional satisfaction because it also impacts on how they feel they could otherwise represent their clients in a better and more efficient manner.
5. CONCLUSION
The findings of the study indicate an understanding of the role of therapeutic advocacy when representing clients in procedures aimed at their rehabilitation. This applies whether the required rehabilitation ensues from the client's criminal history or because of disability following a physical injury.
The lawyers' therapeutic approach is reflected in a variety of ways, including in the development of the lawyer-client relationship, the lawyers' perception of the system and their role within it, and the lawyers' sense of their professional identity and degree of professional satisfaction.
In the context of the forums examined in Israeli law, it is possible to point to the elements of the lawyers' therapeutic role which are consistent with concepts of therapeutic jurisprudence. Moreover, lawyers' attitudes and descriptions of their professional conduct renew and provide additional content to the perception of lawyers as therapeutic agents with the power and responsibility to promote humane and unifying law.
Thus, even though the findings of the study have elucidated the existence of a therapeutic perception among lawyers advocating in particular forums in a specific legal system, they provide insights that may serve as a basis for learning and discussing broader issues that may be applied to other forums more generally.
The study's findings may spur discussion about the diverse roles of the contemporary lawyer and the need to adapt ethical rules to a collaborative-therapeutic approach already in place in the system. Moreover, the research can promote similar studies concerning forums and courts in other countries with common rehabilitative goals. While such forums may differ in nature one from one another, it would seem appropriate to examine not only the process conducted within their precincts but also to undertake a structural examination, and try to determine - whether that forum, whose fundamental and essential purpose is ultimately assistance and rehabilitation of the litigants - is designed in a way that is compatible with its purpose: Is the mechanism for referring and hearing litigants one that promotes their well-being or does it work in a way that undermines its objectives?
The findings augment the body of information on the subject and demonstrate that the lawyer's role also shifts according to the manner in which the forum's deliberative structure is shaped. Therefore, lawyers who see themselves as therapeutic lawyers, are under an obligation not only to ascertain how the process of managing the proceedings affects their client's well-being, but also to try to minimize the existing structural failures within systems that purport to bring about their client's rehabilitation.
Finally, the research findings can support the trend that calls for problem-solving courts to be launched on a larger scale than presently exists.
Notes
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* Dr. Karni Perlman is a lecturer and the Head of the Non-Adversarial and Therapeutic Justice Center at the Striks School of Law, College of Management Academic Studies. She is also an adjunct lecturer at the Buchmann Faculty of Law and at the Evens Program in Mediation and Conflict Resolution, Tel-Aviv University.
* Yael Ben-Saadon is a lawyer and social worker, she holds a LLM degree (Striks School of Law, College of Management Academic Studies) and B.SW (The Hebrew University).
[1] The Disability Law (Benefits and Rehabilitation) [Consolidated Version] - 1959. Under this law, security forces include ex-military, police, prison service or other security forces personnel.
[2] The Community Court model in Israel is learned from the Red-Hook court model in New York (Berman and Fox, 2005).
[3] Knesset Explanatory Notes 2, 1572-1573 (1970).
[4] Regarding the integration of tools and insights taken from the Community Courts in the work of advocacy before other courts, see, for example, Jones, 2012; Richardson et al., 2016.
[5] For therapeutic adjudication and the key role it plays in the rehabilitation process, see Wexler, 2001; Goldcamp, 2002; Wexler, 2016.
[6] For detail regarding the perception that the fairness of the process is derived from the manner in which it is conducted as opposed to its outcome, and the importance of this perception in establishing the legitimacy of the system and compliance with it, see Tyler, 2003.
[7] For aspects of "giving a voice" and expressions of interest and empathy as building a perception of procedural justice, see Lind and Tyler, 1988; Tyler, 1988. For these elements forming part of therapeutic adjudication, see Goldberg, 2005.
[8] For the changing role of the lawyer in light of the existence of collaborative dispute resolution procedures, see Macfarlane, 2008.