The psychology of law

‘Lawyers don’t do feelings.’ Or at least that’s what we used to say back in the day. We dismissed that sort of thing as ‘touchy feely’ and if we talked about ‘soft skills’, it was with a somewhat derisory tone. Emotions were felt to be a far cry from our legal world with facts, intellectualism and analytical thinking at its core.

We’ve come some way since then… There’s more of an understanding these days that psychology matters to the practice of law. This is most commonly acknowledged in areas of law traditionally associated with feelings and difficult emotions, like family, personal injury, contentious probate and criminal law. But it goes more broadly than that. Because all areas of law involve feelings, emotions and psychology. And law is a people business, after all.

Since retraining as a therapist and leaving legal practice myself in 2017, I’ve trained thousands of lawyers across the globe in these ‘soft (but actually really hard!) skills. But there’s still a long way to go, particularly when it comes to barristers.

When I started talking about the need for therapeutic support/reflective practice and proper, psychologically informed training for lawyers back in 2018, many had reservations and said lawyers didn’t need this stuff. While the tide of feeling now seems to have turned in relation to solicitors, it seems to have lingered a little more when it comes to barristers.

Why is this? Well, I think there’s a sense that solicitors tend to be more exposed to clients on an ongoing basis and so they have to learn skills of psychologically informed client management such as how to work with vulnerability, suicidal and angry clients. And there’s a perception that counsel just turns up on the day and does the black letter law bit. What a load of bunkum! Barristers are just as exposed to feelings, emotion and psychology as the solicitors, albeit often in shorter, more intense bursts. In fact, the psychology involved in practising law is often even more complicated and more intense for barristers. Let me explain with reference to the psychological concept of transference.

What on earth is transference?

This is one of the aspects of psychology that I talk to lawyers about the most. This is the idea that strong feelings that human beings experience are often not just about the present situation. The idea is that we all, habitually, redirect emotions, desires or expectations from earlier situations onto other people in the present day. A classic example is this: we all grow up with parents or caregivers and we often take strong transferences from those early relationships into subsequent relationships. In my case, I had a father who was a strong, tough, stoic Northern policeman, something of a disciplinarian (not physically) but a fair one. What that meant is that I went through life feeling an affinity with men who were of that ilk, whether a boss or a partner. It also meant that I felt peculiarly at home in the disciplined, structured world of law! It resonated with me because of my past experiences.

It’s easy to see how common these transferences are in law. Take our clients, for example. Legal clients are often in the throes of high emotion of one sort or another. While the level of their reactions are, of course, in large part about the present circumstances, they’re also likely to be related to earlier experiences. I like to use the phrase ‘if it’s hysterical, it’s historical’ as it neatly sums up the idea that the strength of such reactions is often not just about what’s going on in the present moment. For example, the legal process often has a tendency to make people feel powerless; unpleasant in the moment but also, inevitably, likely to trigger memories of other situations earlier in life where they’ve felt such feelings.

The arena of the courtroom in which, typically, the barrister spends a great deal of time, with its strong archetypes – the judge, parties, counsel, traditions, ‘costumes’ (in some courtrooms) is a prime setting for transferences to play out. I’ve worked with many barristers who’ve experienced strong reactions to a particular judge, for example, and in therapy they have something of an ‘aha’ moment when they realise that they’re struggling emotionally not just because of what the judge said/the way in which they treated them/the outcome of the case but because it reminded them of an earlier wound, usually from a parent/early care giver/authority figure. Purely these realisations in and of themselves can provide a great deal of emotional freedom for barristers and a sense of relief.

Typically, counsel comes on to the scene with a client later than the solicitors and so they are often met by psychological dynamics that have already developed and sometimes even entrenched between solicitor and client. Think about, for example, those solicitors who refrain from delivering bad news to their clients on the basis that they ‘don’t want to be the bad guy’, the ones who get too close to their clients, the ones who laud counsel to their clients as being ‘the world authority on absolutely everything’ (sometimes thereby setting counsel up to fail). These are strong dynamics to be faced with and, by developing psychological awareness, counsel can avoid getting too drawn into these dynamics, unawares.

Why else is it helpful to understand psychology?

Becoming psychologically informed also involves acquiring practical skills that go beyond the legal.

The skilled, psychologically informed barrister will appreciate, for example, that deploying too directive an approach with clients making delicate, nuanced decisions, whether they’re around strategic decisions on a case, options for settlement, or any one of a whole range of issues, will likely be unhelpful. They will know that going in too hard with rationality and legal analysis may well produce the opposite result to that which is intended. They will know when and how to speak to their clients’ emotional brain rather than their logical, analytical ones.

They will know when to use coaching skills with clients, to approach matters on the flanks, to refrain from treading all over their autonomy and to attempt to evoke from clients their own motivations to move in a positive direction. They will have more impact with said clients as a result. So becoming psychologically informed can include the following:

1. Learning to work with resistance in a way that doesn’t involve going head to head with people (which is exhausting and often ramps up rather than extinguishes tension).
2. Developing an understanding of how the brain works, the division between the rational/intellectual and emotional brain, of how and when to deploy approaches which soothe and speak to the emotional brain.
3. Becoming trauma-informed. Learn how trauma affects the brain and the body and impacts memory. Develop ways of working with traumatised and vulnerable clients that are boundaried yet ethical and psychologically informed.

Aren’t these exciting developments? Isn’t all of this understanding useful? I think so. And there’s a huge and growing appetite for it. I’ve run a number of training days for barristers on the psychology of law over the past couple of years and am set to run two more this year. So don’t get left behind! I believe that increasing your understanding in this area can only enhance your legal practice. And it will make the work you do and the interactions you have more meaningful in the process.