2. What is therapeutic jurisprudence and therapeutic judging?

Therapeutic jurisprudence is often considered a ‘lens or heuristic’ (Wexler Reference Wexler1995, p. 221) for approaching a legal problem, rather than a stand-alone theory. Developed in the 1980s by Professors Bruce Winick and David Wexler, in the context of mental health law, it adapts and applies interdisciplinary insights from psychology, criminology, addiction studies, mental health, sociolinguistics and other fields to legal practice. It is reform-focused and recognises that the law can be a ‘therapeutic agent’ (Wexler Reference Wexler1995, p. 220; see also King Reference King2009, p. 24). Therapeutic jurisprudence acknowledges that a legal interaction can positively or negatively affect individual well-being and posits that legal responses should be designed to amplify the positive impacts or at least avoid negative consequences, where this can be achieved compatibly with other requirements, including legal or procedural limits (King Reference King2008; Winick Reference Winick2003). This means that sometimes ‘countervailing normative considerations’ may require more therapeutic aspects of court hearings to give way (Stobbs Reference Stobbs2017, p. 12) or, at times, be ‘subordinated’ (King Reference King2008, p. 1113). It recognises that this is not always a simple exercise, but identifies that judicial officers, lawyers and legislators impact on individual well-being, and indeed that of society more generally, and that legal actors should be mindful of that reality (Wexler Reference Wexler1995, Reference Wexler2008; Yamada Reference Yamada2021). Wexler subsequently (Reference Wexler and Brookbanks2015) articulated the important role of the ‘therapeutic design of law’ (e.g. legislation). However, most research in this context has focused on what Wexler came to describe as the ‘therapeutic application of the law’, especially the role of judicial officers, and this is also the focus of this paper.

Michael King is an Australian academic and judicial officer. As he explained:

Elaborating on this, King noted, in the Solution-focused Judging Bench Book, that more solution-focused approaches have the capacity to enhance ‘rapport’ between the bench and participant through a collaborative approach that allows the judicial officer to connect at a much deeper level to ‘what is happening in their lives’ and what aspirations the court might be able to work with them to achieve (Reference King2009, p. 157).

As discussed further below, the range of contexts to which therapeutic jurisprudence can be applied is broad. At its core, however, its focus is on lawyering and judging with connection, empathy, compassion, empowerment and a genuine ear (Hopkins and Bartels Reference Hopkins, Bartels, Stobbs, Bartels and Vols2019; King Reference King2009; Winick Reference Winick2003). It is based on the powerful idea that a legal interaction which embodies these values can be of benefit to the individual, while also addressing the legal conditions at hand.

Although therapeutic jurisprudence can be applied in a number of circumstances, one of the dominant ways is in the context of a ‘problem-solving’, ‘problem-oriented’ or ‘solution-focused’ court. According to the National Institute of Justice (2020), such courts ‘differ from traditional courts, in that they focus on one type of offense or type of person committing the crime’ and typically involve a judge or decision-maker who works alongside a range of disciplinary experts with a defendant to address substance use (or similar issues) and reduce offending through therapeutic case management.

Since evolving in the context of mental health, the use of such courts has burgeoned across a broad range of legal fields and jurisdictions (Wexler Reference Wexler1990; Wexler and Winick Reference Wexler and Winick1991, Reference Wexler and Winick1996), including drug, domestic violence, gambling, re-entry and veterans’ treatment courts. The best-known are drug courts, which generally involve intensive judicial monitoring, therapeutic case management and supervision, treatment and rehabilitation services and graduated sanctions and incentives for successful completion.

While it will depend on the particular jurisdiction, in the criminal solution-focused court context, therapeutic jurisprudence might also see a judicial officer defer a defendant’s sentencing after a guilty verdict, to allow them to obtain drug and alcohol counselling, with intermittent court appearances during this period. Therapeutic judging practice would involve the judicial officer working closely with the defendant, through motivational interviewing (Winick Reference Winick2003), and with the court team, as the defendant is self-empowered to begin to address potential causes of their offending (King Reference King2003). As Winick has explained, the goal is for the judicial officer to work with the participant, not to solve problems on their behalf, but instead to develop a relationship that is conducive to a ‘collaborative effort of solving the problem’ (Reference Winick2003, pp. 1067–8).

In a civil context, a judge practising therapeutic jurisprudence might strive to ensure a litigant has had a chance to state their case and that the particular experience that led them to court is acknowledged by the judge. By conducting the matter in this way, the litigant may have a greater chance of walking away from the hearing with a sense of closure and belief that the process was fair, regardless of whether they were successful before the court. Judging in a ‘therapeutic key’ (Winick and Wexler Reference Winick and Wexler2003) is of course also closely aligned with procedural justice (Tyler Reference Tyler2007; for the relationship between therapeutic jurisprudence and procedural justice, see Wexler Reference Wexler2016). This can include practices that seek to heighten procedural justice and the sense that a process is fair, by respecting the dignity of court participants, making sure they have an opportunity to tell their story, be heard and validated by the court and fully understand and participate in the court process (Burke and Leben Reference Burke and Leben2007; King Reference King2008; Winick Reference Winick2003).

Generally speaking, therapeutic jurisprudence also focuses more on the process than the outcome (Wexler Reference Wexler1993). It is concerned with issues such as how the judicial officer interacts with court actors (both those affected by the decision, such as the defendant and victim, as well as legal practitioners and court staff), how the hearing is conducted, the degree to which the judicial officer draws on interdisciplinary insights and the mechanisms by which the actors participate in the process. Accordingly, any change to that process, including whether hearings are conducted in-person or virtually, is of much significance. Writing in 2003, King observed:

Our interest in this paper is the extent to which virtual courts assist or impede this approach. In order to situate this discussion, the next section explores how virtual hearings are changing the nature of court proceedings and whether this trend is likely to continue.

3. The shift to virtual hearings

The COVID-19 pandemic led to a rapid expansion of virtual hearings (Townend and Magrath Reference Townend and Magrath2021).Footnote ¹ Social distancing measures and lockdowns in 2020 forced courts and tribunals across the globe to close as physical institutions, compelling the move to virtual hearings (Nir and Musial Reference Nir and Musial2022; Rossner et al. Reference Rossner, Tait and McCurdy2021; Webster et al. Reference Webster, Huebner and Torres2023). To enable legal procedures to be carried out during the pandemic, over 160 countries utilised remote technology (Remote Courts Worldwide, n.d. cited in Muir et al. Reference Muir, Newman and Rossner2023, p. 1).

However, the shift to virtual hearings did not begin with the pandemic. Legal frameworks for video hearings had been established well before COVID-19 across numerous jurisdictions. Council of Europe countries, including Albania, Austria, Belgium, Croatia, Czech Republic, Finland, France, Germany, Ireland, Italy, Lithuania, Norway, Poland, Romania, Russia, Spain, Sweden, Switzerland, Ukraine and the United Kingdom, had legal regulation for video hearings in place before the pandemic, though they were not used extensively (Sanders Reference Sanders2021). Similar frameworks existed in Australia, Singapore and the United States of America. In fact, some models dated back to the 1990s and were initially introduced to modernise civil procedure or make criminal trials safer (Sanders Reference Sanders2021; Wallace Reference Wallace2008).

Despite this, the pandemic response varied significantly across jurisdictions, with some countries being better prepared than others. Some countries, including Australia, Brazil, England and Wales, Finland and Indonesia, were already in the stages of digitalising their courtrooms (Nir and Musial Reference Nir and Musial2022) and were therefore more technologically prepared to respond to COVID-19. In contrast, countries with less developed technological infrastructure faced greater challenges in implementing remote proceedings effectively.

In Australia, the pandemic necessitated the remote conduct of the majority of civil and appeal cases, including family, administrative and coronial law, through telephone, video conferencing and audio-visual links. Criminal cases were also conducted remotely, with judicial officers and lawyers participating from home or chambers, while jury trials were postponed or held as judge-alone trials.

In England and Wales, the court system was already undergoing a reform programme in 2020, with the closure of many local courts and the introduction of digital and remote services. The pandemic led to the suspension of all jury trials and the widespread use of telephone and video hearings. Existing audio visual link (‘AVL’) technology was utilised. While this approach was implemented across the United Kingdom, only a few ‘priority’ courts remained open for essential hearings (Ministry of Justice and Her Majesty’s Courts & Tribunal Service 2020). As restrictions eased in mid-2020, socially distanced measures were introduced to allow for the resumption of jury trials (Rossner et al. Reference Rossner, Tait and McCurdy2021). In the United States of America, courts faced similar challenges, with a large-scale move across the country to limited in-person, hybrid or virtual formats (Baldwin et al. Reference Baldwin, Eassey and Brooke2020).

The evidence suggests that many courts will not return to pre-COVID-19 modes of operation (Webster et al. Reference Webster, Huebner and Torres2023). Research conducted across multiple jurisdictions indicates that virtual hearings are likely to remain a permanent feature of court practice, with some countries reporting that video hearings are viewed as an important tool for the judiciary, both during and after the pandemic (Sanders Reference Sanders2021).

A critical difference that emerged from pandemic responses was that multiple parties participated in hearings remotely, distinct from traditional video-enabled hearings, where typically only one participant – often a witness or defendant – participated virtually, while others remained co-located in a physical courtroom (Rossner Reference Rossner2021). This represented a fundamental shift from hybrid to fully virtual proceedings.

4. Connection and presence – the nature of virtual judging

In this section, we discuss select empirical findings that focus on the extent to which virtual court hearings can help cultivate the human dimension, largely focusing on how connection is formed through the establishment of ‘co-presence’, the perception of mutual attentiveness and engagement. However, there are two important points to make about this discussion. The first is that the overwhelming majority of research in this area was conducted before the pandemic and examined video-enabled or hybrid courts; as discussed above, this meant that most participants were co-located in a courtroom and one person (such as a witness) joined remotely. This is significantly different from the virtual courts that largely developed during the pandemic, where all parties appear remotely. We must therefore be careful not to generalise from research on the first type of hearing to the second. In addition, while there has been a proliferation of articles and reflections on how COVID-19 and the shift to virtual justice have significantly changed the way justice operates, a significant amount of this work is largely ‘speculative’, with very little fine-grained empirical work (de Vocht Reference de Vocht2022). Where possible, we focus below on empirical research that involves direct observation of virtual justice proceedings or survey or interview participants reflecting directly on their experience with virtual justice.Footnote ² Our emphasis is on the scholarly literature of virtual court processes, not outcomes.Footnote ³ What is clear is that, while some research suggests that the benefits of therapeutic jurisprudence practice are harder to achieve through these hearings, there is also evidence that such hearings can in some respects be more conducive to therapeutic engagement.

In Part 2, we suggested that a therapeutic jurisprudence approach is one marked by respect and care. Implicit in this characterisation is an assumption that parties are able to ‘connect’, which we define as the capacity for judicial officers and participants to establish rapport, trust and mutual understanding, through verbal and non-verbal cues. This reflects the ‘human dimension’ of justice practices: the sense that participants are treated with dignity, empathy and respect, and their experiences are genuinely heard and understood (King Reference King2008; Winick Reference Winick2003; Winick and Wexler Reference Winick and Wexler2003). Virtual hearings challenge this by altering the sensory and interactional cues through which connection is traditionally built. Yet they may also create opportunities for new forms of engagement, as we discuss below. Rossner and Tait (Reference Rossner and Tait2023) have suggested that one way to conceive of this human dimension is by understanding the extent to which parties feel a sense of co-presence during a courtroom interaction. Campos-Castillo and Hitlin (Reference Campos-Castillo and Hitlin2013) define co-presence as ‘the perception of mutual entrainment between actors, where entrainment is the mutual synchronisation of attention, emotion, and behaviour’ (p. 391). Importantly, they conceived of co-presence as something that is both subjective and continuous, meaning it may be experienced differently by different parties in the same interaction, and the experience can be felt along the continuum. It is not just the material or technological dimensions of an encounter, but actually how people interact that helps establish co-presence. Co-presence thus blends technological affordances with interactional practices, shaping whether participants feel genuinely engaged in legal proceedings (Campos-Castillo Reference Campos-Castillo2012). Both the technological environment and interactional work of participants combine to create a sense of connected presence (Licoppe Reference Licoppe2004).

Furthermore, we suggest there is a link between presence and procedural justice. Procedural justice research shows that perceptions of voice, respect, neutrality and trustworthy motives shape whether participants view legal processes as fair and legitimate (Tyler Reference Tyler2007). Presence underpins each of these dimensions: it signals attentiveness, allows participants to feel heard, conveys impartiality and humanises judicial authority (Factor et al. Reference Factor, Kariti, Lernau and Ayubi2023; Rossner Reference Rossner2021). When hearings move online, reduced eye contact, altered body language and fewer informal interactions risk eroding these perceptions, unless judges deliberately foster co-presence, through explicit acknowledgement, structured turn-taking and visible engagement (Campos-Castillo and Hitlin Reference Campos-Castillo and Hitlin2013; Licoppe Reference Licoppe2004).

5. Opportunities for accessibility

While much research has focused on the barriers of virtual hearings and ways to overcome them, the empirical evidence increasingly highlights how the constraints of technology have prompted innovative adaptations in courtroom practice. These adaptations address concerns about formality, alienation, audibility, comprehension and physical access. These innovations can be understood as addressing different dimensions of accessibility, making legal processes more approachable, comprehensible and inclusive for participants.

6. Evidence from virtual therapeutic courts

The scholarship reviewed up to this point does not draw directly on the experiences of professionals and participants in a virtual therapeutic court and there is a dearth of specific literature in this context. However, two large national surveys – one a qualitative interview study and one focused on virtual treatment courts – give complementary insights into the experiences of clients, staff and practitioners as they moved online during the pandemic.

Two companion papers report findings from a national survey of United States virtual treatment courts, conducted during COVID-19. Ray et al. (Reference Ray, Kunkel, Bryant, Hedden, Andraka-Christou, O’Neil and Huynh2022) presented the views of 1,356 clients, while O’Neil et al. (Reference O‘Neil, Andraka-Christou, Kunkel, Bryant, Huynh and Ray2024) reported on data from 358 staff members collected for the same project. The survey methodology, while capturing important participant perspectives, relied on retrospective comparisons during crisis conditions and convenience sampling, which may affect the generalisability of findings to post-pandemic virtual court implementation. Nonetheless, a striking contrast emerges. Clients generally described virtual hearings as more comfortable and less intimidating than in-person court and many valued the convenience of participating from home. As one participant recalled:

Despite this, clients were less likely to feel that judges were familiar with their cases or that treatment staff were strongly connected to them. Staff, in contrast, expressed strong support for retaining virtual hearings and especially virtual team meetings, which they found more efficient, but were more likely than clients to emphasise barriers. They worried that participants lacked stable internet, private space or technological literacy, and that the relational aspects of therapeutic practice were harder to sustain online. This divergence suggests that staff may perceive more barriers than clients themselves report.

Rowen (Reference Rowen2024) complements these survey findings with qualitative interviews from eighty-four practitioners across forty-one Massachusetts treatment courts. Her study highlights the tensions between loss and adaptation. Some professionals felt that virtual hearings were less personal, while others described unexpected gains: graduations were easier for family members to attend and participants were more comfortable speaking or reading from home. In one case, a court invited a comedian in recovery to join a graduation held on Zoom, which was seen as an important act of ‘community building’. At the same time, Rowen (Reference Rowen2024) noted that team dynamics shifted in ways that were not always positive. While online meetings improved scheduling, they diminished the informal ‘hallway conversations’ that are often crucial for establishing trust and collaboration among staff.

Jalain and Stacer (Reference Jalain and Stacer2024) provided an additional perspective from veterans’ treatment courts, with a survey of seventy-seven practitioners across twenty-five states. Their findings echo those of the broader surveys: attendance often improved when hearings were online, especially for veterans balancing work and family responsibilities. Yet staff cautioned that maintaining rapport in a virtual environment requires intentional strategies, such as structured check-ins by judges and clear opportunities for feedback. Without these, hearings risked feeling impersonal or disconnected.

Together, these four studies reveal a common pattern. Virtual hearings and meetings clearly enhance accessibility and reduce intimidation, particularly from the perspective of participants. Staff and practitioners also acknowledged these gains, but were more alert to the risks: diminished presence, weaker personal connections and inequities linked to technology and resources. At the same time, some courts experimented with creative ways of sustaining or even enhancing connection, from family participation in graduations to online community-building events. The challenge for therapeutic jurisprudence is therefore not whether virtual formats can work, but how to ensure that accessibility gains are balanced with deliberate strategies to preserve rapport, presence and collaborative team dynamics.

7. Areas for further investigation

While the rapid adoption of virtual hearings during COVID-19 generated an important body of scholarship, the evidence base remains limited and uneven. Much of the research has relied on self-reports from clients, staff and judicial officers, often involving retrospective comparisons between online and in-person formats during an extraordinary period of crisis. Systematic observational research and studies conducted outside the constraints of pandemic conditions are still rare. As virtual hearings become embedded in court practice, more deliberate and comparative research is needed to evaluate their therapeutic potential (Rossner and Tait Reference Rossner and Tait2025). Some avenues that are particularly relevant to therapeutic justice are as follows:

Participants with vulnerabilities . Existing studies highlight concerns that vulnerable court users – such as people with disabilities or defendants in custody – may face additional challenges online (Legg and Song Reference Legg and Song2021; McKay Reference McKay2018; UK Magistrates’ Association 2022). Limitations on judicial officers’ ability to read body language or family dynamics on screen may reduce their capacity to adapt proceedings appropriately. Yet virtual hearings can also lower barriers for some groups, for example by reducing physical travel or offering captioning technologies (Bartels et al. Reference Bartels, Gelb, Eales, Corcoran, Boxall and Cooms2024). Future research should move beyond speculation to investigate systematically how different vulnerabilities interact with virtual participation and what accommodations best support meaningful engagement. Added to this is the need to ensure that virtual processes avoid paternalistic decisions about what will result in a therapeutic outcome independently of the views and needs of the particular participant involved (Petrila Reference Petrila1993, p. 881; Sela Reference Sela2019).

Jurisdictional and case flexibility . The suitability of virtual hearings is likely to vary across legal settings and participant needs. For example, therapeutic courts depend on participants’ intensive, collaborative engagement with judicial officers and treatment teams. Research should examine whether hybrid models – where some actors are co-located, while others appear remotely – preserve or undermine the therapeutic goals of such courts. More broadly, studies should explore when in-person hearings remain essential (for example, in highly charged contexts, such as coronial inquests) and when virtual or hybrid models may deliver equal or greater benefits, particularly for participants in rural or remote communities.

Expanding access to therapeutic justice . Virtual hearings may extend therapeutic court models to populations previously excluded due to geography, mobility or resource constraints (Kunkel and Bryant Reference Kunkel and Bryant2022). This possibility is particularly relevant for First Nations people in remote communities across Australia and North America. Virtual hearings could potentially play a role in mainstreaming therapeutic options, which traditionally have only been available within particular areas or to service a specific population. Further empirical research should explore whether virtual modalities can increase access without sacrificing the interpersonal dimensions of therapeutic jurisprudence.

Cross-fertilisation with other fields . Courts could learn from adjacent domains, such as telehealth, online education or behavioural science, where evidence already exists about fostering rapport and engagement in digital settings. Research should consider whether and how strategies such as structured check-ins, multimodal communication tools or trauma-informed design can be adapted to judicial contexts.

These avenues point toward a central question: how can courts design virtual hearings that preserve the human dimension of justice while leveraging the accessibility gains of technology? Addressing this requires a mix of observational and participatory research, attention to diverse participant needs and a willingness to rethink how therapeutic jurisprudence principles can be enacted in digital environments.