Keywords

If I need some insight into the future of medicine, I might head over to Stanford Medical School. If I wanted to learn about likely directions in finance and hedge funds, I might visit Penn’s Wharton. If I were looking to make investments in computing, I might arrange a tour of a lab at MIT. If I decided to learn something about where legal practice, law firms, and legal departments will be in 2014, where would I go? Not to law school (Paul Lippe 2009).

The quote stated above from Paul Lippe, the well-known founder and CEO of Legal OnRamp, suggests that there is a lack of progression when it comes to overall growth and innovation within legal training. Lippe made the above statement in an article for The Am Law Daily, in order to address faltering legal training. Lippe’s comparison of the innovations in the legal realm versus those in the medical field is particularly poignant given the struggles outlined in this book that problem-solving courts are experiencing. Lippe’s stance on the need for reform in certain areas involves the inclusion of more empirical education for legal students, an educational structure similar to the medical model, and the use of empirically supported findings as motivation for improvement within the legal system as a whole. Lippe is not alone in this call to reform, as other authors in this book have made similar calls (Gatowski et al. in press; Lederman in press; Redlich in press; Weisz in press). As Lippe puts it, “Law schools are extremely disengaged from professional practice,” when compared to other professional schools, and we are quickly reaching a period where law schools need to “catch up” (Lippe 2009).

As mentioned previously and throughout this book, Lippe is not the only advocate for reform and improved approaches for those involved in the legal system. The old way of traditional courts focusing only on the sole issue presented has transformed into the idea that courts, and those who work within them, should serve a greater purpose and be prepared to take different approaches (e.g., Babb in press). One different approach is exemplified with problem-solving courts discussed in the preceding chapters. Problem-solving courts exist to serve either a special population of offenders or a special type of offense, yet the training for those who work in and lead these courts may not be adequate to meet the needs of these new and innovative approaches.

This chapter will be divided into three sections. In the first section, we will examine the intended consequences of the problem-solving courts by highlighting data and material presented in the preceding chapters. The second section will be devoted to the possible unintended consequences of these special courts and why those unintended consequences are virtually assured. In the third section, we offer two polemic solutions to address these unintended consequences: stop all the problem-solving courts or change legal education as we know it.

Intended Consequences of Problem-Solving Courts

As mentioned in previous chapters, the creation of problem-solving courts began with the formation of a juvenile court in Chicago, Illinois in 1899. Since then, problem-solving courts have grown to address numerous other issues such as drug abuse, domestic violence, and mental health issues, to name a few. The chapters within this book provided a well-rounded and well-articulated view of such courts.

Generally, these courts developed from an innovative and different approach to dealing with offenders. Specifically, these courts seek to deal with the root of the offense, in an effort to prevent recidivism, or the offender’s reentry into the system due to the same offense. In order to deal with the underlying issues, some problem-solving courts use an integrated approach to deal with comorbid issues , such as mental health and addiction problems (Richardson et al. in press; Winick in press). Richardson et al. (in press) describe this integrated approach in Australia and New Zealand noting that these problem-solving courts seek to “address multiple problems in a holistic way” (Richardson et al. in press). Such a holistic approach focuses on using the same judge and court professionals to review the same case, which allows for consistency and enables the judge to develop a rapport with the defendant (Babb in press). Richardson et al. suggest that these lower level courts are able to be more adaptable to “economic, political, and social change” than traditional courts. This adaptability allows these courts to be more innovative with their approaches, such as developing versions of the court that are culturally specific and integrating therapeutic jurisprudence principles within these courts (Richardson et al. in press).

The integration of therapeutic jurisprudence plays an important role in problem-solving courts (Babb in press; Gatowski et al. in press; Lederman in press; Petrila in press; Richardson et al. in press; Schopp in press; Winick in press). In many ways, the process of problem-solving courts represents the defendant-centered principles of therapeutic jurisprudence by seeking to empower the defendant—giving the defendant a voice in the court’s decision making (Petrila in press). This different approach has positive outcomes. Past participants in mental health courts report feeling less coerced than those in traditional courts (Petrila in press; Winick in press). Clearly, lower coercion means that the defendants are participating more because they want to and less because the court requires them to do so. Relatedly, this defendant-centered style of judging often attempts to maximize defendant autonomy as much as possible (Petrila in press). Autonomy is prioritized not only with the treatment choices but also with the outcomes from those treatments (Petrila in press). Promoting autonomy rather than paternalism increases the defendants’ chances of success because such sense of control is essential in recovery (Petrila in press). Having a voice, increasing autonomy, and encouraging voluntary engagement in services are likely to improve participants’ chances of success and recovery, as these feelings can act as intrinsic motivators and increase participant satisfaction (Winick in press).

In addition to giving defendants a voice in the process, Petrila (in press) notes that many problem-solving courts are not encumbered by the large case loads of traditional courts. In fact, many of the courts are considered a separate jurisdiction and have separate judges (Winick in press). These smaller caseloads allow the court to spend more time focusing on the defendant and pursuing a resolution of the underlying issue(s) that problem-solving courts aim to remedy. It seems this model can be successful. Limited studies (e.g., single site) suggest that these problem-solving courts provide participants with increased services (Petrila in press) and treatment access (Redlich in press), and increased service use (Gatowski et al. in press; Richardson et al. in press). In addition to increased service access and use, these courts are more cost effective than criminal court (Winick in press).

One major difference between problem-solving courts and regular courts seems to be the type and level of judicial involvement in the lives of the people who have cases heard before these courts (Wiener and Georges in press). For example, in a drug court, the judge can set provisions for participants (e.g., behavior contracts, periodic drug testing, community treatment program, etc.) and is actively involved in providing support, in the form of public praise or enforcing sanctions (Winick in press). Similarly, in a mental health court, the aim of the court is to persuade the participant to take medication and monitor their compliance with treatment using similar incentives to drug courts (e.g., dropping of charges; Winick in press). Proponents of these courts argue that the increased latitude provided to the courts is one of the features that makes these courts special and can lead to the courts’ success. Importantly, we need to also consider whether there are unintended consequences of this extra-involvement that could lead to problems with the courts or lead to the courts being ineffective. Certainly, these problem-solving courts are not without criticism.

Unintended Consequences of Problem-Solving Courts

Moving away from an adversarial-based, traditional court to a problem-solving court is certain to have some complications. Consider the drug offender who is referred to a problem-solving drug court, where, in lieu of a conviction, the offender is offered the “opportunity” to participate in a rehabilitation program. Upon first hearing this offer, the offender may not understand the attraction of such a program. But, there is an incentive. Upon completion of the program, the offender’s offense will be removed from his record—that is a highly convincing incentive. However, in order to participate in drug court, the offender must agree to the regulations set forth by the court. These regulations generally include a lengthy rehabilitation program, frequent drug screens, and frequent appearances before the court and judge. If the offender does not abide by the regulations, many courts require that the offender enter a guilty plea for the original charge and accept the resulting sanctions.

According to some critics, an unintended consequence of these problem-solving courts is the lack of due process and its inherent unfairness toward the offender. Some critics argue that abandonment of the traditional system ignores procedural rules and the defendants’ rights of due process (Benaquisto 2003). Additionally, the attractiveness of potentially dropped charges could be argued to be unduly coercive for the defendant. Of course, it is not legally coercive, and thus, unconstitutional, but instead the argument is that it could be psychologically coercive. Specifically, the offenders are presented with a choice to make of their own volition (face the charges vs. participate in the program), but the potential incentive of having charges dropped essentially forces the offenders into a decision. Winick (in press) contends that the argument of coercion is not valid for two reasons. First, the choice is not made under the legal definition of coercion (i.e., a form of improper inducement), and second, the offender is in the difficult position due to her own choices. Nonetheless, it is certainly possible and plausible that the offender feels as though she had no choice but to submit to the drug court jurisdiction. Within the same vein, Weisz (in press) makes the argument that some courts effectively force families into services that may not be suited for that particular family, yet participating in the services have high stakes for the families. Consider dependency courts, the placement of the child can come down to the outcome of a service that a family never wanted and arguably never needed (Brank et al. 2002). The parents’ successful or unsuccessful completion of the service (e.g., parenting classes) could determine the removal of the child, the separation of the child from his or her siblings, or the placement of the child in foster care. It certainly could feel like a forced choice for the parents.

Another unintended consequence of these problem-solving courts stems from the high level of variability between different courts and different jurisdictions. As there is no formal agreed upon standard operating procedure, there can be variability in the authority the courts have over state authorities, and vice versa (Weisz in press). Of more concern, the rules of evidence are relaxed for disposition and review hearings in most states (Weisz in press), which results in an informal admission policy that allows hearsay and subjective testimony (Weisz in press). These relaxed rules and the resulting allowed evidence is particularly concerning, considering the impact that such evidence could have on the outcome of a case—these are cases that generally involve the high stakes of children’s lives and anything else related to the family (Babb in press).

Problem-solving courts are an attempt to move the role of the judge away from the mechanical rule arbiter and into a more compassionate helper. As Wiener and Georges (in press) note, the problem-solving courts move us away from the traditional criminal court model where the judge acted like an umpire handing down rule-based orders and into a system where judges act more as team leaders or case managers collaboratively encouraging the participants and working with them to find appropriate services (Wiener and Georges in press). Unfortunately, as judges move away from the criminal court model, they move away from what they have been taught, what they know, and arguably, what they are equipped to do. Although judges have continuing education opportunities, for many that is likely to be too little, too late.

Redlich (in press) notes that as these problem-solving courts are a departure from the norm and foreign to most involved, there is a natural regression toward a criminal court model within the problem-solving court system. In other words, the courts may start off with special goals and ideals, but as time passes they become more like a regular criminal court because a criminal court is somewhat of a status quo or the model from which all else are compared and derived. Although not always considered a problem-solving court, juvenile court jurisdiction is a perfect example of this regression toward criminal court. With the intention of being a different system—a system that healed the wayward youth and did not criminalize them—the juvenile court even developed a new language separate and distinct from the criminal system (e.g., dispositions rather than sentences). Nonetheless, the juvenile system now looks very much like the adult criminal justice system (Gardner 2009).

In sum, although the current benefits and potential benefits remain promising, the authors of this book and other scholars on the topic note a number of complications stemming from problem-solving courts. The courts come with some unintended consequences that seem to force defendants to submit to the alternative models and outcomes that can be much more intrusive than if the case had proceeded through regular court. This happens often with relaxed procedural rules and increased subjectivity. All the while, the courts and those involved seem drawn back to the traditional criminal court model. We believe there are two possible solutions to address these issues. The first solution is to stop the problem-solving court experiment. The second solution is to focus on the initial training of those involved and train them to meet the needs of the problem-solving courts. We detail both possible solutions next.

Two Possible Solutions

Solution One: Stop Problem-Solving Courts

If we return to a system where all the criminal cases are heard in regular criminal court, then we have certainly resolved any specific problems with the problem-solving courts. We could return to a system where judges emotionlessly hand down orders and apply rules; judges and lawyers would not get to know the defendants or victims. Mentally ill or drug abusing defendants could be executed or banned from living within city limits (Deutsch 1946). Families would be granted unbridled discretion in domestic relationships and permitted to decide how to interact with each other. Of course, this will lead to a gamut of other problems and we are back to the point when problem-solving courts began and the reason why they came to be. Clearly, these courts are attempting to fulfill a real need and we believe eliminating them is not a viable solution.

Solution Two: Specialize Legal Training

If we accept that stopping problem-solving courts is a bad idea, then it seems that we need some other way to make them work to their potential. There needs to be some way to ensure that they are not regressing back to their criminal court roots. We propose a change at the beginning: a new system of legal education . To support our proposal, we first briefly review the current system of legal education and compare that to medical education. We focus on medical education because, like legal education, it is considered a professional curriculum. Unlike legal education, medical education has a complex set of extensive steps and specialties to prepare physicians for their specific type of practice. Second, we propose a plan to undertake such legal specialization highlighting programmatic foreshadowing that includes an increase in specialized training while obtaining a J.D. (including a focus on empirical legal methods), additional legal training, dual-degree programs, and more extensive legal internships. Third, we describe the future court system if there was such specialized legal training—a utopian court system in which constitutional and psychological rights are upheld because those involved will be inclined toward and trained to do so.

The current system.

The legal community is seeing record unemployment rates by law school graduates, with unprecedented low rates of employment in jobs that require bar passage (Weiss 2012). Nonetheless, the number of prospective law students taking the Law School Admissions Test (LSAT) has generally continued to increase, with clear peaks during difficult financial times (Robbins 2010). Many people see going to law school as an opportunity to advance their current career, whether that be within the legal field or not. For instance, almost 20 % of recent law school graduates were employed in business (Weiss 2012).

Obtaining a law degree—a J.D.—for most law students is a commitment of three academic years beyond a bachelor’s degree. Generally, the first year curriculum is a predetermined set of courses usually consisting of all or most of the following courses: Contracts, Civil Procedure, Criminal Law, Property, Torts, Legal Writing/Research, and Constitutional Law (Association of American Law Schools 2006). The following 2 years provide students with the opportunity to sample other areas of law. Some law schools have subspecialties or concentrations. At the authors’ institution, a law student can concentrate in a number of different predefined or individualized areas. For example, the Intellectual Property Law concentration requires students in their second and third year of law school to take courses like Copyright Law, Patent Law, and Trademark and Unfair Competition Law. Presumably, these specialties better equip students to practice law in these areas. Many law students after their first year of law school clerk for law firms or work in other legal positions. This too, helps expose the students to different areas of the law and, through somewhat of an apprenticeship system, helps prepare students for the practice of law.

With only a few rare exceptions, a law school graduate will need to take and pass a state bar in order to practice law. Although studying for a state bar is not technically part of the legal education , mass-produced bar review courses procure the loyalty of many a recent law school graduate. The courses effectively extend the law school curriculum for a few additional postgraduation months making the regular law school experience almost precisely three calendar years long. Add in a few months to wait for the bar exam results, and the whole experience from “no legal training” to “ready to practice law” is slightly over 3 years.

For comparison sake, a practicing physician with a medical degree (M.D.) will have completed 4 years of medical school and at least a 3-year residency. Specializations will require even more training beyond the residency. For instance, a 3-year residency in internal medicine (inclusive of the first year internship) will be followed by a 3-year fellowship in gastroenterology in order for a physician to be a gastroenterologist. Other specialties require even more time and training (e.g., a pediatric neurosurgeon will be in medical school, residency, and training for about 12 years beyond the bachelor’s degree). Like legal training, medical training also includes comprehensive qualifying exams (i.e., boards).

Clearly, there is a stark difference in years of training between law school and medical school. It is not only the years of training, but also the level of specialization and organization of that specialization that provides a helpful model for specialized legal training. Medical students are matched in a residency program after completing their 4 years of medical school. For those who want to continue with further specialization they can complete a fellowship. Whether attributable to the system of specialization or something else, the unemployment rates for physicians are usually among the lowest of all professions and the expected job outlook is much better than average (US Bureau of Labor Statistics 2012). Can we learn from the medical community to better shape legal training? We turn next to examine some of the ripples of movement that suggest that a similar type of specialization system could be possible within legal training.

New legal education system.

Suggestions for legal training to emulate medical training are not new. Lippe (2009; discussed earlier in this chapter) calls for more practice-oriented training in law schools , with successful practicing attorneys passing on their own real world experiences. Lippe argues that a practice-oriented approach such as a year of externship similar to the medical school approach, would increase the acquisition of marketable skills during law school (Segal 2011) and reduce the need for long apprenticeships for recent law graduates. Overall, Lippe calls for a reform to overcome the current stagnate condition of legal education and move toward a model that takes cues from the medical profession. Specifically, such programs would have an empirical approach to practice, a subject-area focused externship, and more practice orientation (see Lippe 2009 for full review).

Schopp (in press) highlights what we see as two needs for better training specifically with the mental health courts and generally with all problem-solving courts: empirical methods and clinical training. Specifically, Schopp notes that in order to determine if the mental health courts are actually successful in reducing recidivism there needs to be ongoing data collection in both mental health courts and traditional criminal courts. Although social scientists could certainly be the main source of labor for data collection and analysis, anyone who has tried to work within the court systems knows that in order to get true buy-in, there is a clear need for judges and lawyers to have at least a working knowledge of empirical methods. Schopp also notes that there is an underlying communication barrier between clinicians and legal actors. Even basic vocabulary training would seem to be useful and imperative in moving these courts forward.

As Wiener and Georges (in press) note, judges in problem-solving courts are as much case managers as they are judicial officers. Authors in this book described some of the extra training that judges are already receiving (or should receive) who are involved in problem-solving courts. For example, Gatowski et al. (in press) discussed the therapeutic jurisprudence-based training dependency court judges often receive. Despite these special trainings, Judge Lederman (in press) argues that there needs to be more. She notes that judges and lawyers are trained in the law and not science, and that Lederman says this “is not enough.” Lederman poignantly argues that judges need to be concerned with research and attempting to understand the research on adolescent brain development and other important issues the courts must address. She even says that a problem-solving court devoid of science can be “dangerous.” Those are powerful words, but words true to the situation and Judge Lederman’s own experiences.

In some ways, legal training is already changing because of the various options for focusing on new or specific topic areas, extending training beyond the core law school experience, and complementing the J.D. with other advanced degrees. One relatively new area of legal scholarship that has and continues to gain popularity involves empirical legal studies . Empirical legal studies provide attempts to incorporate empiricism into law-related areas. This movement of embracing scientific inquiry has led to the development of the Society for Empirical Legal Studies, as well as the creation of the Journal of Empirical Legal Studies (JELS), an academic peer-reviewed journal that publishes empirically oriented articles that are rooted in law and law-related fields. Lawless et al. (2009) wrote Empirical Methods in Law, a book that teaches law students to identify when empirical research should be applied and provides vocabulary that facilitates communication with scientific experts. The empirical legal movement is particularly important because it arguably runs contrary to the traditional legal education that allows students to eschew math and empiricism. Such a movement suggests that some students (and faculty) in law schools may be interested and willing to examine the law and their legal training from a new perspective. Importantly, this new perspective is one that values experimental examination and scientific research.

Furthermore, there is evidence that some students are willing to extend their legal training beyond the traditional J.D. The Masters of Law degree (referred to as the LL.M.) is becoming more widespread and diverse (Sloan 2010). Schools offer an LL.M. specialization in a number of areas including Space, Cyber, and Telecommunication Law; Elder Law; Tax Law; International Human Rights; and Corporate Law. Even though the vast majority of law school graduates does not pursue an LL.M. degree and certainly do not need to have one to practice law, a person may pursue an LL.M. as a way to specialize in a specific area of practice, Tax Law in particular is a popular area of study (Jones 2010). Another reason the degree is gaining popularity is that foreign attorneys can gain US training. Commonly, however, pursuing an LL.M. is a path thought to help a person become a law professor. An LL.M. degree will traditionally take an additional full year of law school with course requirements consisting of mostly regular law school classes in a particular area (Sloan 2010). The American Bar Association does not track salary or employment data for LL.M. graduates (Sloan 2010), which leaves only anecdotal information about whether the extra letters are worth the tuition and time costs. Nonetheless, its gaining popularity bolsters our argument that students may be willing to invest additional time in order to specialize their education.

The popularity of dual degrees is further foreshadowing of potential future changes for legal training. A dual degree generally involves a law degree (J.D.) and a master’s or doctorate degree in another field. In fact, a majority of law schools have approved dual-degree programs (Association of American Law Schools 2006; US News Staff 2012). The J.D./M.B.A. for business administration is a particularly popular option (Association of American Law Schools 2006; Hafemeister et al. 1990). Many of these dual-degree programs are ad hoc in nature such that the students are mostly responsible for developing their combined programs and attempting to integrate the disciplines (Hafemeister et al. 1990). Other programs are well-integrated with fairly stringent requirements and networks for the students. Again, at the authors’ institution, there is the longest running law and psychology dual-degree program. This program integrates the traditional law school J.D. usually with a Ph.D. in one of the subspecialties in psychology.Footnote 1 The normal law school 3-year time commitment is extended with students generally finishing both of their degrees in six or so years.

Law-psychology programs produce graduates who are often not comfortable in either a traditional law setting or a traditional psychology setting, despite their new “trilingual” skills (Hafemeister et al. 1990, p. 271). Most graduates of these programs find themselves working in academic or public policy settings (Hafemeister et al. 1990). The acquired skill sets from these law-psychology dual degree programs, however, does seem well-suited for working within problem-solving courts because the dual-trained professionals are able to assess issues from different and unique perspectives (Hafemeister et al. 1990). Additionally, as more law schools adopt an empirical approach to the law, law-psychology students are not only well-situated to participate in these activities, but are also well-equipped to guide these efforts toward what is needed for making problem-solving courts successful. The notion of a problem-solving court is a paradigm shift away from the rational actor model and into the psychological model that recognizes the complexity of offenders and their situations (Babb in press; Wiener and Georges in press). Such a change deserves and needs a similar shift in the education of those working in the area.

Future legal training for a truly new court system.

Imagining that this legal training and legal system overhaul could occur, what would it look like? We can envision a variety of configurations, but we describe only one for simplicity and brevity. What follows is a broad generalization of a plan in which law schools and legal training in general could shift to meet the needs of not only problem-solving courts, but also other areas by utilizing and expanding the J.D./Ph.D. or J.D./M.A. law-psychology systems that are already in place and adding key LL.M. programs geared toward the skills needed to be a judge or work in a problem-solving court.

First, it probably makes the most logical sense to keep the traditional first year of law school the same. Although this first year has been vilified by some, it does provide a relatively efficient system to present the general topics of civil procedure, contracts, criminal law, property, and torts. One simple addition would be to also include a semester of short electives that would be particularly useful for future possible specialization. The first year law student could then be introduced to topics such as clinical psychology, developmental psychology, empirical methods, among many others topics. Students would be able to get a taste of options and learn about the potential career paths. In the years of training to follow, the students would be actively involved in both law school classes and psychology graduate classes. In addition to the classwork, the students would be involved in research relevant to their desired career path. For instance, a student interested in drug courts would do externships and research at drug treatment facilities and programs. The end result of such an education would be a dual-trained individual equipped to make both legal and psychological decisions. For those attorneys who have already graduated, a Problem-Solving Courts LL.M. degree would be an appropriate way to provide in-depth and immersive education on topics important for the type of problem-solving court in which they will work.

We would be remiss not to mention some limitations to our suggestions. Anyone who has been a faculty in a graduate program is likely to wonder who will provide the supervision, and pay, for all these new graduate students. It is clear that this new system could not be sustained with the current level of resources. How will all of this be funded? Legal education costs are not inconsequential and the source of great criticism (Tamanaha 2012). One of the benefits to medical education is the source of funding for the residencies and fellowships. The residents and fellows learn their specialties in exchange for minimal wages and long hours at teaching hospitals. Is there a similar setting within the legal community?

Certainly within the J.D./Ph.D. model, the students are funded as graduate students. But, the demand for such students is limited by the number of professors who can mentor and advise the students—usually only a few at a time per professor. If the J.D./Ph.D. students were more actively involved within their area of problem-solving during their training, financial matters may be more manageable. Consider a student who is pursuing dual psychology and law degrees in order to be a judge in a mental health court. Such a student could gain invaluable experience working at a prosecutor’s office, public defender’s office, in-patient mental health clinic, and so on. The potential for rotations would be very similar to the medical residency rotations in which the resident spends a month working (and learning) in the intensive care unit, then the emergency room, and then an out-patient-clinic. The institutions benefit because they have extra help in the form of “residents.”

Therefore, one source of income could come from the externship sites that would be receiving student-work. Another source of income could come from the law schools that are attempting to address the criticisms of over-priced irrelevancy (Tamanaha 2012). Still another source of funds could come from court innovation grants or the like. This last source would obviously require some government appreciation of the need for specially trained judicial officers and the potential for cost-saving benefits when problem-solving courts are doing what they are intended to do.

Conclusion

The term “problem-solving” court suggests that there is something different with these courts—something “special” that is not possible with our regular court system. The current system will likely do fine shuffling along with a hodgepodge of continuing legal education courses and judicial conferences because the judges involved in these courts are very committed to their success. Nonetheless, the very notion of a problem-solving court highlights the need for something different. We argue that a difference should start with a change in legal education .

We are encouraged by the attention that the subject of problem-solving courts has received in recent years. It is promising that others within the field (particularly those within this volume) agree that there is a need for reform and change. Such recognition, especially from the esteemed scholars in this book, suggests that we should be closer to finding a solution. We argue that the legal educational system is at a time when it can and should make some changes. Such changes can and should be done to improve the court systems—including (and especially) problem-solving courts. Attention to change at the law school level will result in what Paul Lippe (described earlier) seemed to think was an impossibility—law schools as places of innovation and discovery.