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Therapeutic jurisprudence and total quality management

Therapeutic jurisprudence and total quality management

Dr Hugh Koch, Professor Christian Diesen, Dr Tom Boyd, and Nicole Hampton explain how the behavioural sciences can assist in developing a 21st-century agenda for the UK justice system

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 Civil Procedure Rules (CPR) changes implemented over 15 years ago have started to percolate through and agendas for further development and training are being discussed.

Experience at the recent International Congress on Law and Mental Health in Vienna illustrated that the UK justice system has developed many processes, both legal and medico-legal, that are ahead of what is practiced 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 and the organisation-based total quality management.

Therapeutic jurisprudence

Therapeutic jurisprudence, developed by US law professors Wexler and 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 well-being, win-win conflict resolution, and positive, effective communication.

There are many examples around the world where a therapeutic jurisprudence approach has been implemented and successful - 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 among those interested in or committed to therapeutic jurisprudence is how to 'mainstream' this process - that is, how to spread the idea of more holistic solutions to the traditional domains of lawyering.

Total quality management

Total quality management was comprehensively researched in the 1980s and 1990s in the manufacturing industry and health care sector. 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 therapeutic jurisprudence and total quality management.

The agenda

The key players in civil litigation are shown in Figure 1, below. Clearly there are systems within system which operate relatively independently of each other but still interface in what is called a 'B2B' (business-to-business) way (e.g. judiciary and court administration, law firms, insurers, experts (individual or colleagues), and medico-legal agencies).

Although each group might articulate its core values and aims differently, they should all adhere to or aspire to the values in Figure 2, below.

Figure 1: The key players in civil litigation

Figure 2: Core values of organisations

The strategy

The goals of addressing this stem from the model of therapeutic jurisprudence and total quality management shown below:

Figure 3: Overview model of therapeutic jurisprudence and total quality management

The four components are:

• 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 generic processes which 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 larger the number of processes and the potential for error, unless the above mentality of measurement/design/control/improvement is fully adopted.

Subsequent publications will address what this actually means in practice in the following systems: law firm, judiciary and court administration, and expert evidence provision.

Customer responsiveness

Figure 1 illustrates that the recipient of varied services - the 'customer' in marketplace terminology - expects 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, face-to-face contact), style and effectiveness of communication, and timeliness and outcome of the lawyer's 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.

Specific example of lawyer’s customer responsiveness

A key B2B interaction amenable to ‘continuous quality improvement’ (CQI) is the interface between lawyers and the 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, 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/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 R Rowbottom and D Billis.

Sustaining the commitment of staff for 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 quality improvement activities/teams; and

• Training in relevant CQI activities.

Co-ordination of all processes

Any component organisation of the justice system needs to collect and monitor its business and quality performance data. Integral to improvement is training or CPD activities focused on each specific area of improvement. A precondition for fulfilment of quality improvement is that lawyers have a more holistic approach to conflict solving, something that can be reached by studying the principles of therapeutic jurisprudence. The insight offered by findings from the behavioural sciences can be used in modern legal processes to establish more win-win-solutions and improve welfare in the long run.

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

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