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Comprehensive Law

by Joseph Shaub

When Helen Palsgraf stepped out onto that Long Island railway platform in August of 1924, little did she know that her name would become forever linked to the concept of forseeability for millions of lawyers in the years ahead.....and, of course, she wouldn’t have cared.            

Helen was a single mother and sole support of three children - her two youngest daughters, 15 and 11, were with her that day when an explosion knocked over the scale and set off a chain of causation which extends from that railway platform to today’s Socratic classroom.  Her first concern was for her children, from whom she had been separated in all the commotion and smoke. The injury from the falling scale was actually insignificant.  Her problem was that she had developed a stammer about two weeks after the accident which became more severe as time passed.  Helen was having trouble holding down her two jobs and communicating with her daughters.  Her treating doctor told her that her speech problem was caused primarily by the stress of the lawsuit she had filed and the prospect of testifying. 

Helen’s trial date arrived three years after the accident.   The long-impending trial didn’t help her condition any - but her lawyer did manage to secure for her a jury verdict of $6,000, an enormous sum at that time.  The court of appeal affirmed.  However, as we know, Benjamin Cardozo authored the opinion which reversed the trial result and on top of that assessed Helen the railroad’s costs through appeal, a sum which nearly equaled her entire yearly income.  Stunned and overwhelmed by the result, Helen Palsgraf became mute. 

In her wonderful essay, Creative Problem Solving v. The Case Method: A Marvelous Adventure in Which Winnie-the-Pooh Meets Mrs. Palsgraf, law professor Janeen Kerper explores Helen Palsgraf’s dilemma and asks the (perhaps) blasphemous question of whether a legal remedy should have been sought at all.  After all, her real concern was that she couldn’t raise her kids or support them, due in large part to the stress of the unresolved litigation. 

Efforts to develop a broad understanding of the many needs which accompany clients into our offices as well as the positive role we can play in their lives is the substance of the Comprehensive Law movement.

Comprehensive Law is the umbrella term used by Susan Daicoff to describe a growing array of practice approaches and philosophies.  The two which will be discussed here are Therapeutic Jurisprudence (TJ) and Preventive Law (PL). 

Therapeutic Jurisprudence (TJ).  Therapeutic Jurisprudence, according to Daicoff, “recognizes that the law is a social force with negative and positive emotional consequences for all the people involved in a particular legal matter.”  Its originators, and most articulate explicators, are David Wexler and Bruce Winick.  Although it was initially spawned within the field of mental health law, it has enjoyed a rapid expansion into a wide range of practices, including litigation; estate planning and personal injury.   A phrase that is found often in the writings on TJ address the “healing potential of the law.”  This is, to be sure, an odd notion for those who are trained within, and committed to, the adversarial ethic of legal practice.  Winick, in a recent interview, had this to say about the possibilities of TJ for attorneys: 

“To lawyers who are experiencing increased professional burnout and anxiety, we offer an alternative vision of lawyering.  It’s one in which lawyers can practice preventive law, avoiding problems through legal checkups and use of creative problem solving, legal drafting, and alternative dispute resolution techniques.  It’s a vision of lawyers as members of a helping profession who practice law with an ethic of care and a heightened sensitivity to the emotional aspects of the professional relationship.  The result can be increased lawyer and client satisfaction...TJ has touched a responsive chord in judges and lawyers who seem increasingly interested in reframing their professional roles in a more humanistic direction.”

Daicoff has noted that the most common approach to moral decision-making among lawyers is the “rights and justice orientation.”  This approach is associated with men to a great degree and has dominated the practice of law.  She then describes an alternative approach, more associated, culturally, with women, which she calls the “ethic of care.”  The distinctions are important because the practice of law which was once dominated by men, has seen a dramatic gender balancing (many law schools now report a majority of women in their first year classes). 

Daicoff, quoting the observations of Sandra Janoff says,

“The rights orientation “focuses on rights, rules, standards, individuality, independence, justice, fairness, objectivity, accomplishments, ambitions, principles, personal beliefs, and freedom from others’ interference.”   In contrast, the ethic of care “values interpersonal harmony, maintaining relationships, peoples’ feelings and needs, and preventing harm.”  The care orientation resolves disputes by methods that maintain, restore, or preserve relationships, emphasizes people’s needs, assesses their vulnerabilities, and avoids harm.”

This “ethic of care” can be found throughout the writings on therapeutic jurisprudence, which may offer guidance and some comfort to practitioners who find the hard edge of adversarialism too limiting and ultimately unsatisfying.

Preventive Law (PL) 

Daicoff describes PL in this way:

“PL seeks to avoid litigation and intervene in situations before disputes actually arise.  It emphasizes a proactive approach by the lawyer, a client-centered focus, and planning by the lawyer to avoid costly litigation and reach desired outcomes...PL may best be seen as a set of techniques or strategies designed to reach its goal.”

Edward Dauer, who, along with Louis Brown, is credited with the development of Preventive Law quoted Abraham Maslow’s observation in a recent interview, “If the only tool you have is a hammer, then everything looks like a nail.”

“Clients come to lawyers because they feel threatened or wronged or in need of help in achieving some goal.  Sometimes they know exactly how they want to pursue their goal, and sometimes they are just experiencing disquiet or hurt or confusion.  If the adversary system is what the lawyer knows, there is a risk that the lawyer will translate the client’s problem into something for which the adversary system is a useful tool, whether the client’s dilemma–if taken outside that lawyer’s frame of reference – is really a legal problem in need of adversary - system procedures or not.

 

“There may be advantages for lawyers as well as clients in widening our counseling horizons in these ways.  Legal problems separated from people are pretty dull things and while adversarial advocacy as a lifestyle might be fun for a few years, I think it would be very satisfying to have a sense of purpose in addition to a sense of sport.”

Conclusion 

There is no evidence that Helen Palsgraf received any less than fine conventional legal representation.  Indeed, his lawyer would have called the verdict into the jury sheets of his day, if such existed.  Yet, as Janeen Kerper suggests, and as current practitioners of TJ/PL and allied philosophies echo, the range of service and support which lawyers can provide their clients is both broader and deeper than the conventional wisdom describes.  A legion of torts professors’ loss would have been Helen’s gain - she may have regained her normal speech, improved her station in life and assisted her daughters through the challenges of growing up, all without the need of litigation. 

The Therapeutic Jurisprudence and Preventive Law movements are but two approaches in the dynamic field of alternative visions of legal representation and counseling.  They include holistic law (website:iahl.org); mindfulness in law practice (website:tranformingpractices.com); transformative mediation (website:colorado.edu/ conflict/transform) and creative problem solving (The McGill Center for Creative Problem Solving at cps.cwsl.edu), among others.  (Note that with the exception of Preventive Law, these practice methods and philosophies date their inception from the early 90's or later.)  The best single volume introduction to TJ/PL is the compilation, Practicing Therapeutic Jurisprudence - Law as a Helping Profession (Dennis Stolle, David Wexler and Bruce Winick, eds.) (2000)

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