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Mental health and therapeutic interventions can and should be used in legal cases. While most people connect mental health and the law to areas of competency and legal rights, the techniques used in therapy can be valuable interventions for resolving legal conflict. For example, rapport building, understanding, and empathy are all useful therapeutic tools that therapists use to get their clients to open up to them and can be parlayed into the legal world as a mechanism for lawyers to earn trust with their clients.
Trust can also come from being real and managing expectations. This means sometimes being the bearer of bad news, confronting a client, and even challenging a client’s thinking.
Expectations guide how we experience the world. Our expectations are formed from our experiences throughout our lives. From how we were raised to the movies we watch and the books we read, expectations drive our view of winning or losing, good or bad, just or unjust, and on.
Expectations also fuel litigants (and the public’s) view of the justice system. People expect the justice system to operate one way, but in reality, the system rarely works the way you expect it to. People’s inherent views, value systems, and beliefs as to what justice looks like, or should look like, greatly drive disputes and are often the offspring of the underlying cause to the dispute in the first case.
There is not a week that goes by that I don’t have a client call me and say:
“How can a judge do that?”
“There’s no way the judge won’t let me see my kids.”
“I only sent one text that’s not really a violation of a restraining order.”
“He broke my wrist; he will definitely be sent to prison.”
“She (the victim) does not want to cooperate; they will absolutely dismiss the case.”
I hear things like this all the time. Whether it is family law, criminal law, or frankly any other area of the law, what people think will happen in courtrooms, how judges will respond, and how justice works is a far cry from what people expect. The notion at the beginning of an issue that “I am right” creates the expectation of moral and legal certainty that creates high expectations for a “just” result that may or may not come to fruition.
All my calls with potential clients start with identifying the client’s goals. “What are you trying to achieve?” My job is to assist clients to help them achieve their goals. But, sometimes, their goals are not aligned with legal/justice reality. And, while my job is to serve my client’s goals, it is critical that my client has an informed goal.
Reality testing is a psychological term used to describe the therapeutic intervention where one is led to see a situation for what it really is as opposed to what one hopes (or fears) it to be. While reality testing is critical to mental health treatment, it may not be used enough in the legal world. Reality testing needs to be used more frequently in criminal and family law cases.
Lawyers seeking business may oversell what they can accomplish, and client’s often are given misinformation by friends and family telling them what has happened to their friend’s friend or family member when the facts surrounding the situation could be totally different. This is dangerous because it sets up expectations for certain outcomes to be achieved when in actuality, the likelihood of that outcome could be very low.
Not to mention, rarely do friends and family appreciate the sway of legally significant facts. For example, a husband says to a wife: “you can have the house.” The client assumed that should be binding in court and all of the client’s friends stated, “you will absolutely get the house.” What the friends may not realize is that the house was an inherited gift to the husband, pre-marriage, and any legal fight (absent writing to the contrary) meant that the wife was absolutely not going to get the house.
Reality testing should be used by lawyers with their own clients. Lawyers should sit down with their clients and go through all the possible outcomes and work together to dismiss any underlying expectations. Reality testing allows for reassessment and can help guide people to make decisions in their cases.
So what is the reality in the legal system?
In family court, judges are innately aware of the needs of children and tend to favor cases/litigants who “go along to get along.” Judges like parents who work together and try to co-parent and will often favor joint custody.
In criminal courts, filings and sentencing are greatly disparate. Whether they're the victim or defendant, most people think the “system is unjust.” Some people seem to get off and others seem disproportionality targeted. The one common element is what feels like justice is not usually the outcome of a case. Some will say, “if all parties are a little unhappy, that means it was the right outcome.”
Here are some questions to ask yourself and your client as you are doing a reality test. Some of these questions say the same thing but are maybe worded in a way that your client can understand better.
- What are the weaknesses of my case? With me?
- What are the strengths of the other side?
- What are the weaknesses of the other side?
- If you were on the other side, how would you attack the logic (or the facts or the conclusions) that underlie your position?
- What is problematic?
- What (real) public policy issues may impact a case? (i.e. #metoo)
- What expectations do I have?
- Am I listening and taking in the reality of the case?
- Am I coming at this with some sort of ulterior motive?
- Am I trying to pay someone back or get even? Am I trying to send a moral message?
- What is my ideal goal? What is a realistic goal?
Reality testing is most effective with a client who is open to looking at all sides of a case. This is a skill that can be modeled by the attorney by assisting the client in seeing other options or by reframing the issues.
Validating the client’s perspectives and looking at all pieces of what the client states is important to build trust and to allow the client to feel heard. The justice system is rarely ever what people expect but therapeutic acumen can make it less stressful, less disappointing, and solution-oriented.
The author wishes to acknowledge intern Taylor Smith for her assistance with this post.
