Book Review The Re-imagined Lawyer
Author: Nabeela Siddiqui, Research Scholar, CHRIST (Deemed to be University), Delhi-NCR, India.
There has always been an attempt to balance the scales between harmoniously construing the letter and spirit of law and the needs and aspirations of a society. The Re-imagined Lawyer is, as the name suggests, a solution oriented book. A lawyer is deemed to be argumentative, stubborn and firm in expression. This stereotype is mostly what we often see in our day to day life and even in fictional representations of the profession. This shadowed image has created a sense of anti-therapeutic imagery of legal services involving all the stakeholders in the process. The writer has attempted to re-look, understand the onion-layered issues in the profession by means of his acquired scholarship, by being in the profession and translating his experiences in the form of this book. It is a must read both for practising lawyers and law students.
There is no universally acclaimed methodology or straitjacket formula which is applied to lawyering per se. One needs to have clear objectives to further with a chosen methodology from a vast array of choices. For instance, the author gives us an example of a commercial law attorney, who might opt for the theory of "maximization of profit" in the general sense. Whereas, a public interest attorney would opt for social justice advancement, which would run contrary to the former. It is quite evident that all these mechanisms are not only different in approaches but they might also intersect each other in terms of means and the ultimate objectives.
The competitive environment in which lawyers work and the stressful nature of the profession engulfs the true spirit of being a lawyer - which is empathy. The author throughout his book argues the need for a "harmonious construction" or a more healthy and balanced way where lawyers could approach legal practice to provide a more inclusive healing legal process, benefiting all the stake-holders involved. In my opinion, the TJ/ preventive model solemnizes the natural tensions between these models, affirming the faith in the phrase that "law is an instrument of change", which remains to be the focal point of the author's argument as well. To give the readers, a more holistic experience, the author starts his narratives from law schools moving through to the stage of arguing in the court. Be it the stress, the lust for proficiency, the flawed aspirations, the work load, substance abuse there are many potentially problematic and anti-therapeutic factors impacting upon on lawyers, starting from their law school days. The author is on fertile ground when he says that the art of lawyering, which should revolve around the core idea of emotions, has been sadly reduced to a mechanical methodology. We are taught from the initial years of law school how one is either a winner or loser whenever a cause of action arises and suits are instituted.
"Some books are to be tasted and some to be digested", that is the saying I have been hearing all through my undergraduate days. This review would be incomplete without saying that a great book is one which has a long 'shelf life'. One thing for which I can vouch, after reading The Re-imagined Lawyer in-depth, is that it does indeed have a long shelf life. It is meant to be read and re-read in times to come. As well as being novel in its approach and outlook, it is meant for a large audience who may not already be familiar with the concept of lawyering in a therapeutic mode.
Chapters 1 and 2 are introductory chapters that present the readers with the problem/solution model. The author acquaints readers with the professional constraints and challenges which a lawyer faces and prescribes an alternative model of lawyering. I have always admired this approach in book writing, where the writer, instead of keeping the readers in suspense, makes the theme clear and accessible from the start. Reading through the remaining chapters (3 to 6) readers are introduced to the Therapeutic Jurisprudence (TJ) model in the context of various practice areas. This gives the opportunity for the aforementioned large audience to explore the application of TJ to various practical areas of law, following on from the background constructed in the initial chapters.
In chapter 3 the author takes into account the intricate attorney/client relationship. He traces the core of this relationship from the literature on "procedural justice". We learn that the invoking of confidence/trust building involves a powerful attorney/client relationship. Such invocation starts when due importance is given to the client "voice" and treating it with dignity. This chapter could easily have been titled 'ethics of client counselling'. It provides particularly valuable detail on this topic which would be of great interest to a student or aspiring lawyer. Winnick makes an apt comparison between the legal profession and the medical profession. Making patients comfortable, showing empathy, and encouraging them to open up are all part of the medical profession's effort to establish affinity. These are also very much needed within the legal profession, if we comparing the position of a patient with that of a prospective client. A poorly conducted interview and failure to establish rapport risks not only client dissatisfaction, but also the possible loss of important information to the case, and a client less likely to follow the lawyer's advice.
A law is read with the riders to it, absolution-ism is not one of the facets of legal interpretation When Winick moves to chapter 4, he talks about such 'checks and balances'. The need for 'checks and balances' are very well enmeshed in the chapter by giving relevant illustrations from the work of in-house counsels, business planning etc. Chapter 5 brings in the role of law as a healing force. It discusses dispute settlement and plausible alternatives to litigation such as negotiation, mediation and collaborative law. The most interesting part is the way in which the external variables to the whole legal process are very delicately discussed while exploring the conventional critique of litigation. Clients' psychological barriers to settlement are also exhaustively discussed.
The author develops the traditional models of lawyering by recommending some additional basic skills, such as "active listening", "empathy", "emotional intelligence". The author, by virtue of Chapter 5 where he projects 'lawyer as peacemakers', has injected the soul of TJ into vital issues, both legal and non legal, surrounding lawyering. Chapter 6, views a 'lawyer as healer', in terms of criminal trials. Since the idea of the author is to address the issues, both legal and non-legal, he prescribes lawyers to recognize and deal with the emotional fallout of clients' legal situations. There are several latent effects to the whole legal process, for clients it is definitely exhaustively and sometimes mentally tormenting. This is illustrated using th example of domestic violence. When Winick regards a lawyer as a healer, he envisions the breaking the cycle of violence by utilizing the most predictable steps in any criminal process - arrest, deposition, trial, victim impact statement to afford victims opportunities of healing, and empowerment. This, in particular could be achieved by appropriately creating dialogues with victims to "open up," to overcome patterns of isolation, and post-traumatic stress. TJ can be criticized as a band-aid being applied to a fractured criminal justice system. However, Winick argues that it is an attempt to seize opportunities to address the root causes of clients' legal problems, and to help set them on a course of rehabilitation. This is a radical argument when focusing on such opportunities is often seen as transgression of lawyers' traditional domain. In addition, concerns can be raised about the practicability of such an approach.
However, the importance of such opportunities will resonate with anyone who is aware of the significant harms that the criminal system often inflicts upon victims, in terms of a stage as early as the invocation of the legal machinery for availing justice. In recent years, a range of movements have developed, including the "Comprehensive Law Movement", the "Integrative Law Movement", "client-centered lawyering" and "social justice lawyering", along with "law and emotion" scholarship. These movements, although quite recent in their origin, have started a much needed dialogue globally. We are now talking about a more inclusive approach, we are questioning traditional lawyering practices and welcoming changes. I strongly feel this book is a step in the right direction. All of these movements have a TJ-model at their heart, sharing similar goals and a common direction of travel. The author has been successful in starting a narrative, which I feel is all the more needed both for the present times and for after the global pandemic ends. This book provides a vital road-map for lawyering as we move into a 'new norm' where TJ values, such as empathy, are needed more than ever before.