Setting a 21st-century agenda for the justice system

Dr Hugh Koch, Professor Christian Diesen, Dr Tom Boyd, and Nicole Hampton discuss the use of therapeutic jurisprudence and total quality management in civil litigation

There is a growing interest in how the UK justice system can develop its processes, covering cost containment, access to justice, quality improvement, and perceived outcomes. The ramifications and benefits of the changes to the Civil Procedure Rules (CPR) implemented over 15 years ago have started to percolate through and agendas for further development and training are being discussed.

The International Congress on Law and Mental Health held in Vienna in July 2015 illustrated that
in many ways the UK justice system has developed many processes, both legal and medico-legal,
that are ahead of what is practised in other European and North American systems.

Following this conference, the authors have become increasingly aware that there is considerable opportunity to learn from two bodies of knowledge: the legal-based therapeutic jurisprudence (TJ) and the organisational-based total quality management (TQM).

Therapeutic jurisprudence

TJ, developed by US law professors David Wexler and Bruce Winick in the 1980s, is based on the practical premise that information from the behavioural sciences, predominantly psychology, can inform and improve how litigation is carried out, encouraging wellbeing, win-win conflict resolution, and positive, effective communication.

There are many examples around the world where a TJ approach has been implemented and successful, such as problem-solving courts in the UK, drug treatment courts in the US, homeless courts in California, abusive betting courts in Nevada, and child advocacy centres in the US and Scandinavia. All these involve multidisciplinary collaboration at their centre.

A major subject for discussion within those groups interested in or committed to TJ is how to 'mainstream' TJ - that is, how to spread the ideas of more holistic solutions to the traditional domains of lawyering.

Total quality management

TQM was comprehensively researched in the 1980s and 1990s in the manufacturing industry (see John Oakland's book Total Quality Management (1988)) and healthcare (see Dr Hugh Koch's book Total Quality Management in Healthcare (1991)). It is essentially an approach to the effective management and running of any organisation, operationalising what many would say is 'common sense' and addressing the development, planning, and operation of continuous process improvement, customer responsiveness, and staff empowerment and training. As such, there is considerable overlap between TJ and TQM.

The major opportunity for the application of these two bodies of knowledge to the post-CPR arena of civil litigation has been outlined (see Professor Christian Diesen and Dr Hugh Koch's article 'Contemporary 21st century therapeutic jurisprudence in civil cases' (Ethics, Medicine and Public Health, 2016)), with one specific aspect, namely client relationship management, already appearing in legal publications (see Dr Hugh Koch's article 'What are the most effective strategies for client relationship management and business development in a modern law firm and why' (Modern Law, 2015)).

The agenda

The key players in civil litigation include: the claimant; the claimant's lawyers; the barrister or counsel; experts (medical and other); other witnesses; the defendant insurer and lawyer; the judiciary; court administration; and medico-legal agencies.

Clearly, there are systems and organisations within systems and organisations which operate relatively independently of each other but still interface in what is called a 'B2B' (business-to-business) way (for example, judiciary and court administration, law firms, insurers, experts (individual or colleagues), and medico-legal agencies).

Although each group might articulate its values and aims differently, they should all adhere to or aspire to these core values:

• Putting the customers first;

• Anticipating and knowing customer expectations;

• Meeting and exceeding customer expectations;

• Getting the service 'right first time';

• Reducing the costs of poor quality; and

• Reinforcing good staff performance.

The strategy to address this stems from a model of TJ and TQM with four components:

• Process improvement;

• Customer responsiveness;

• Staff empowerment; and

• Continuous improvement.

Litigation process improvement

Each type of organisation within the justice system will have specific processes which are idiosyncratic to that organisation's internal processes, but will also have the generic processes that most, if not all, multi-person organisations will have. Both internal and generic processes need to be explicit; measurable, where possible; monitored and controlled for variability reduction; designed well; and continually improved.

This requires the explicit setting of standards
and clearly understood and agreed processes.
The larger the organisation, the greater the number of processes and the potential for error, unless the mentality of measurement, design, control, and improvement is fully adopted.

Customer responsiveness

The recipient of varied services - the 'customer' in marketplace terminology - expects a good, if not excellent, service from any one particular 'provider'.

For example, a law firm provides a service, primarily to its external customers, who are either individual members of the public (claimants) or, alternatively, insurers representing the defendant. The lawyer's responsiveness to either customer is judged in terms of accessibility (by telephone, letter, email, or face-to-face contact), the style and effectiveness of their communication, and the timeliness and outcome of their interventions.

In the judicial system, there are several professional internal customers with whom the lawyer interacts and 'does business' - these include experts (medical and other), other lawyers, barristers, court administrators, and the judiciary. As with the first concept, customer responsiveness, the lawyer needs to be accessible, efficient, and an effective communicator with their B2B colleagues.

A key B2B interaction amenable to 'continuous quality improvement' (CQI) is the interface between lawyers and experts, who are commissioned through them to provide
expert evidence to the court.

Some of the key facets which should be addressed include:

• Understanding expert opinions;

• Understanding expert impartiality and neutrality;

• Understanding the expert's framework (for example, diagnosis, causation, attribution, and prognosis);

• Managing effective case discussions and conferences; and

• Responsibilities for assessing truthfulness and reliability.

Staff empowerment and training

Staff within organisations may be organised in a flat structure, with a maximum of two or three levels of responsibility, authority, and managerial control or direction, or in a more hierarchical structure with several levels. This will often be determined by the differences in complexity in the 'levels of work' involved (as discussed by Ralph Rowbottom and David Billis in Organisational Design: The Work Level Approach (1987)).

Sustaining the commitment of staff to the overall aims of the organisation requires several factors:

• Awareness of the strategy and involvement in its production;

• Encouragement to take part;

• Involvement in data collection and feedback;

• Participation in CQI activities and teams; and

• Training in relevant CQI activities.

Overall coordination of all processes

Any component organisation of the justice system needs to collect and monitor its business and quality performance data. Integral to improvement are training or continuous professional development activities focused on each specific area of improvement.

A precondition for the fulfilment of quality improvement is that lawyers develop a more holistic approach to conflict solving, something that can be reached by studying the TJ principles. The insight that findings from the behavioural sciences can and must be used in modern legal processes creates the possibility of establishing more win-win solutions and better welfare in the long run. SJ

Dr Hugh Koch, pictured, is a chartered psychologist and director of Hugh Koch Associates, Christian Diesen is a professor of law at Stockholm University, and Dr Tom Boyd and Nicole Hampton are chartered psychologists at Hugh Koch Associates