In January 2019, I started an amazing journey presiding over Milwaukee County’s early intervention program and a variety of treatment courts, including the adult drug treatment court, the veterans treatment court, and the mental health pilot treatment court. I owe a debt of gratitude to then-Chief Judge Maxine White and Deputy Chief Judge Carl Ashley for offering me a valuable opportunity about which I had not given much thought up to that point. When they asked me if I would be willing to preside over the treatment courts, I was quite content presiding over the domestic violence court where I was honing my skills as a trial judge. But after speaking with them, I felt in my gut that life was offering me an exciting new direction that I should not pass by.
This exciting new direction did not disappoint. After I agreed to the new assignment, I realized I had a lot of homework to educate myself about treatment courts. As it turns out, treatment courts are a bit more complex than the “clapping courts” that I had previously known them to be. While motion and trial skills are not practiced in the treatment courts, a different set of skills is necessary. Treatment courts are rooted in the concept of “therapeutic jurisprudence,” which recognizes that courts have the ability to “be change agents that exert a therapeutic (or non-therapeutic) influence through their procedures, rulings and dispositions.”1 As such, treatment courts provide an intersection of law, the science of behavioral change, and health, wellness, and healing. This intersection therefore requires not only legal knowledge but also effective communication known as “motivational interviewing” and expertise regarding addiction and other behavioral health problems.
When I came to better understand this intersection, my heart leapt for joy as I finally realized what my gut had already known. While I have a deep passion for the law, I have a similar passion for health, wellness, and healing. This passion began when my dad was diagnosed with a brain tumor years ago. His battle with cancer sparked within me a drive to learn more about the causes of disease and to explore healing modalities that seek to address those underlying causes versus the treatment of symptoms. My dad’s death also set me on my own healing journey, which led me to practice yoga and ultimately to become a certified yoga instructor. As both a student and a teacher, I became very interested in learning to use yoga as a means to heal from trauma. Unsurprisingly, the movement in the criminal justice system and treatment world to become more trauma informed resonates with me greatly.
As I continue to preside over various treatment courts and apply the new skills I am learning, I cannot help but notice that the lessons I am learning have general application to all legal practitioners both in their professional and personal lives. While this list is not exhaustive, three lessons have emerged as the most profound.
Listen to Understand, Not Respond
It has been said that the greatest gift one person can give another is the gift of attention. To be effective, a treatment court judge must become proficient in a style of communication known as “motivational interviewing.” Motivational interviewing is anentire field of study focused on an evidence-based approach to change.2 Key qualities of motivational interviewing include a communication style that balances active listening with advice giving and that empowers individuals by eliciting their own purpose, significance, and ability to change.3
In a nutshell, the judge’s job is to mainly shut up, listen, and be curious and respectful about what makes a person tick. At first, I struggled with this concept and found myself doing most of the talking at the participant. However, over time, I began to employ the technique more frequently, becoming more of an active listener. I found that when I gave space for the participant to speak, when I asked questions based on genuine curiosity, and when I reflected to the participant an understanding of what he or she had said, I was able to forge a deeper connection with, and motivate true change in, the participant.
In this era of social media and mindlessly firing back at people who express a different viewpoint, I often think about what the world would be like right now if people engaged in this motivational interviewing style of communication. As legal practitioners, we are trained to be one step ahead, to anticipate the opponent’s argument, and to attack it before it gains any momentum. While there is still a time and place to apply such skills, sometimes the adversarial approach bleeds into other areas of our professional and personal lives where the active listening approach would be far more effective. I am the first to admit that often times my husband must remind me during our conversations that we are not in the courtroom and I do not have to make my case. But, what if we in the legal field could lead a movement to give the greatest gift of attention to others by listening to understand, not to respond.
Learn Self-forgiveness and Bouncing Back
As lawyers or judges, how often do we find ourselves giving advice to a client or litigant that we realize in the moment we should be following ourselves? As a treatment court judge, this phenomenon occurs weekly as I interact with participants who have fallen off track and relapsed. Over the years, I have learned that shame is the overriding emotion a participant feels after a relapse and is the main reason participants run from the program and are not honest about their substance use. In response, I tell the participants that shame – the feeling of unworthiness and inadequacy as a person – has no place in treatment court and that their worthiness does not depend on their mistakes. Each one of us, after all, is human, and I believe that the best thing participants can do after a relapse is to forgive themselves, learn from the experience, and move forward.
Every conversation with a participant like this one is a constant reminder to apply the same advice in my own life. I am going to wager that I may be in good company with other Type A legal practitioners who strive for perfection and are pretty hard on themselves when they fail. I have lost count of the number of times I have overanalyzed and dwelled on a mistake for far too long. But as I tell my participants, dwelling on the mistake and beating ourselves up does not do much good. While I still have room to grow, applying the same technique of self-forgiveness and bouncing back that I expect of my participants has helped me grow immensely both in my professional and personal life.
Say “Yes” to Yourself
“When you say ‘yes’ to others, you are saying ‘no’ to yourself.” I find myself saying this phrase often to participants when they express challenges staying away from the wrong “people, places and things.” Participants will often express they simply have a hard time saying “no.” To that sentiment, I reply, “except to yourself.” My point is when we say “yes” in an attempt to please others, we say “no” to ourselves and suffer as a result.
This phrase created another “aha” moment for me one day as I thought of all the outside demands to which I kept saying “yes.” There was a week during the height of the pandemic when I was on Zoom from 8:30 a.m. to 5 p.m., having taken only two or three bathroom breaks, and then proceeded to nighttime Zoom calls for non-work-related organizations. Now do not get me wrong – being involved and active is certainly a positive thing. But, as I learned in Economics 101, there is an opportunity cost to everything. As I sat there staring at my screen, my mind wandered to all of the things I had said “no” to that day as a result of having said “yes” to other things: lunch, exercise, meditation, putting my son to sleep, and my sanity. It was then I realized I needed to be more mindful and intentional about what I was saying “yes” to. As lawyers and judges who are pulled in many directions, sometimes it is okay and necessary to say “no” to others so that you can finally say “yes” to yourself.
When all is said and done, I continue to learn every day as a treatment court judge. While I try to teach, inspire, and motivate my participants, the beauty of it all is they do the same for me.
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What’s the most important advice you can give a new lawyer appearing before you?
When brainstorming with my court staff about the most important advice I would give to a new lawyer appearing in my courtroom, my deputy sheriff, Andrew Heisel, brilliantly quipped: “Be prepared to be unprepared.” His response was exactly on point.
The first part, “be prepared,” is one we have heard before: Lawyers should be prepared, know their case inside and out, and present their argument clearly and concisely. The latter half of that response, however, is what I wish I would have been told during my early years as a practicing attorney.
I remember a handful of occasions when I had done to the best of my ability all preparation I could for a particular assignment or case, only to find that a particular witness didn’t show up or that a partner had a question completely out of left field (from my perspective). I can remember feeling my brain turn to mush as it went into fight, flight, or freeze mode. If I had been prepared to be unprepared, I could have at least remained in a calm and receptive mode, utilizing my problem-solving skills in response. So, my best piece of advice is to maintain flexibility and adaptability to rebound quickly from unforeseen circumstances.
Cynthia M. Davis, Milwaukee County Circuit Court.
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1 Arthur J. Lurigio, The First 20 Years of Drug Treatment Courts: A Brief Description of Their History and Impact, 72 Fed. Prob. 13, 14 (June 2008).
2 MINT, Understanding Motivational Interviewing, https://motivationalinterviewing.org/understanding-motivational-interviewing (last visited Sept. 3, 2021).
» Cite this article: 94 Wis. Law. 37-38 (October 2021).