Psychology of Law: “We’re not counsellors, we’re lawyers” (but is it that simple?)

Welcome to the third column in our Psychology of Family Practice series! This is where we think about family practice on a deeper level – about all the fascinating stuff that lies beneath the surface of what we do.

This time I wanted to focus on the age-old problem of clients treating family lawyers as if they’re counsellors/therapists.

In actual fact, this is an issue that goes broader than just the lawyers. It happens to anyone who works with this client base, where strong emotions are flying around and dependency is rife (see financial professionals for example).

Family justice professionals use the above (head)line a lot.

They refer their clients to therapists (quite rightly) … They tell their clients they don’t do the “emotional stuff”. They desperately try to cut short those long-drawn-out phone calls with clients.

It’s all difficult stuff. No wonder we want to assert our boundaries.

But is this idea that the “emotional stuff” isn’t part of our job, right?

For me (as someone who has worn the hats of both a therapist and a family lawyer), I don’t think the two roles are as clearly delineated as people like to think.

Sure, when you’re working as a family lawyer, there are some cases which are pretty much “pure law”. Jurisdiction battles. EU Maintenance Regulation cases.

But there are many, many more family law cases where the actual law is pretty thin on the ground. These are the cases where it is an essential aspect of the job to call upon skills which are much more ambiguous than purely legal.

Children cases for example. The family lawyer often ends up discussing with clients what a court might deem is “in the best interests of the child”. Often in circumstances where the client and their ex are diametrically opposed on what that might look like in practice.

These are not conversations about law. These are conversations about life. About parenting. About human relationships.

There are plenty of lawyers who say “my job is purely to present the law to my client. It’s then up to my client to do with that information what they will”. But is that really all family professionals do? Just lay out a situation in a purely factual and rational way?

Do we not want to have impact? To influence our clients? To be able to speak to their emotional brain as well as their analytical ones?

No prizes for guessing what I’m going to say … hell yeah. Of course we do.

Because if we don’t have impact, then our wellbeing goes to pot. And our sense of meaning in the job evaporates.

My belief is that, given the intransigence of many of the clients we deal with, family practitioners developed the idea that “all we do is lay the facts/law at our clients’ feet and then leave them to it” as a defence mechanism. As a kind of reassurance tactic, a way of helping (particularly junior) lawyers see that they are not expected to change the world. That they can’t make a silk purse out of a sow’s ear. And as a recognition of the futility of spending hours upon hours trying to reason with immovable objects.

But here’s the thing… I think we went too far with it. Because the truth is that we can use psychological techniques to wield influence over our clients (where we are doing it to serve them and what we believe are their longer-term needs). And to me, the idea that family lawyers should remain in the world of the entirely intellectual would mean them doing half a job (actually less than that, I reckon).

So no, you are not counsellors. But you can learn counselling skills that will help you do your job better.

Take these three for starters:

  • 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).
  • 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.
  • Becoming trauma-informed. Learning how trauma affects the brain and the body. How it impacts memory. Developing ways of working with traumatised and vulnerable clients that are boundaried yet ethical and psychologically informed.

Wouldn’t these be helpful? More than that, aren’t these essential for you to do your job effectively?

At its heart, isn’t this job really about learning how to have helpful conversations with people? And doesn’t that require a sprinkle of empathy and a soupcon of psychology and wisdom alongside your dollop of legal knowledge?

What do you think? Are you a purist? Or are you all for a bit of fusion cuisine like me? Let us know…

Annmarie Carvalho is a therapist and former family solicitor and mediator at The Carvalho Consultancy –