Attorneys As First-Responders: Recognizing the Destructive Nature of Posttraumatic Stress Disorder on the Combat Veteran's Legal Decision-Making Process

• Author: Captain Evan R. Seamone
• Pages: 05

Author's Disclaimer: Divergent views on Posttraumatic Stress Disorder (PTSD) are underscored by recent efforts to revise the clinical diagnostic criteria. As a result of inconsistent perspectives on diagnosis or treatment, authors are hard-pressed to identify a single or perfect solution to the problem. Legal organizations may desire to approach the attorney's role in a cautious manner, limiting the attorney's response to decisional impairments that stem from PTSD symptoms. This article represents only the individual views of the author. The author was not directed to write this article in his military capacity and wrote it on his own time. By surveying assessment and counseling techniques and suggesting how attorneys might benefit from them, this article does not suggest that these approaches must or should be adopted by all attorneys providing legal services to clients. This article previews the possibilities of an enhanced client counseling role with the hope that consideration of these ideas will enrich the dialogue in the military and civilian sector on the best ways to serve clients with unique needs.

ATTORNEYS AS FIRST-RESPONDERS: RECOGNIZING THE DESTRUCTIVE NATURE OF POSTTRAUMATIC STRESS

DISORDER ON THE COMBAT VETERAN'S* LEGAL DECISION-MAKING PROCESS†

Captain Evan R. Seamone‡

1. Introduction

   Posttraumatic Stress Disorder (PTSD) is a stress and anxiety condition that results from exposure to an overwhelming traumatic event combined with feelings of utter helplessness.1 At the most general level, PTSD exists when the trauma resurfaces over time in intrusive ways causing disruption in a person's thoughts and behaviors.2 As a "signature" disability evaluation characterizing the Iraq and Afghanistan campaigns,3 PTSD has transformed many legal assistance and trial defense attorneys into first responders in the quest to ensure the well-being of these combat veterans.4 While some definitions limit the term "first responder" to emergency response personnel based on the entities

   that employ these professionals5 or official training completed,6 other definitions that consider the first responder's role cover a much broader spectrum of individuals. Just as Congress considers victim advocates first responders based on the fact that they are often the first persons to have contact with sexual assault victims,7 disaster planners and others recognize that attorneys sometimes serve as first responders.8 It is the lawyer's unique function in providing necessary legal services,9 or the relationship between the attorney's service and the client's relief from hardship and personal strife10 that accords this weighty title. Even those attorneys who prevent potential emergencies can nevertheless attain the status of first responder.11

   While mental health clinicians surely have the training to diagnose and treat combat veterans with PTSD, common obstacles prevent them from identifying and treating all servicemembers with this condition.12

   In fact, a great many Soldiers, Sailors, Airmen, and Marines are slipping

   through the cracks.13 Whether an undiagnosed client's condition resulted from Delayed Onset PTSD, which was dormant for months before its symptoms surfaced,14 or the client's intentional efforts to mask her symptoms in an effort to appear strong or loyal to members of her military unit,15 these factors can easily transform her attorney into a PTSD First Responder. In these instances, first responder status arises from the legal counselor's uncommon access to the client's decision processes, personal history, and behavior, a combination of which can easily reveal PTSD symptoms or influence the client's evaluation of the attorney's advice.16 In fact, whether the visit to the lawyer's office comes as a result of domestic violence, financial issues, or abuse of controlled substances, both civilian and military attorneys will see an increasing number of PTSD victims due to the interrelationship between PTSD symptoms and these typical legal disputes.17

   Many attorneys may not desire PTSD first responder status because the title implies a responsibility to "respond" to matters normally in the domain of licensed clinicians.18 Even for those few attorneys who do litigate matters facially related to PTSD, such as in the defense to a

   criminal charge or efforts to obtain disability benefits,19 the condition is normally addressed solely through expert witnesses with the responsibility of diagnosis falling exclusively on the shoulders of the trained clinician.20 The critics might argue that in those instances where PTSD is tied to the client's legal cause, the attorney meets her obligations of first response by advocating for the client's rights in a court of law. This article advocates otherwise. While PTSD sometimes falls squarely within the substantive legal matters in a case, it is more likely to arise beneath the surface, influencing the client's evaluation of the attorney's advice and the client's priorities in resolving the legal dispute. By virtue of the attorney's duties to maintain confidentiality, communicate information clearly, and maximize the client's well-being, it will forever remain the attorney's obligation to dispense legal advice independent of mental health professionals, thereby cementing the obligation of first (and sometimes only) response.21

   At its heart, the problem is one of "framing," i.e., how lawyers perceive and identify important issues in a case.22 Inevitably, when we adopt a vantage point for viewing a legal issue or a decision, "our frames tend to focus on certain things while leaving others obscured."23 Limited frames often and easily "force [us] to choose the wrong alternatives."24

   By focusing on the ultimate legal issues in a case, lawyers may fail to consider less obvious issues that are nevertheless still related to the legal problem.25 In the context of PTSD, this Ultimate Legal Issue frame concerns itself with expert testimony on the causal link between PTSD and military service or the client's past behavior but leaves little room for considerations of how PTSD might influence the client's legal decisions during legal counseling.26 The resulting lack of concern for or knowledge of the effects of this disorder create a substantial risk that the attorney will be misled into believing that a client with PTSD either does not have the disorder or is not impaired by it.27 Through this limited frame, even a well-meaning attorney can unknowingly contribute to the aggravation of a client's condition while believing she has fully satisfied her professional responsibilities.28 In fact, attorneys who fail to

   acknowledge their clients' PTSD symptoms or counter the effects of stress responses can cause harm beyond their clients' legal cause. Chief among other potential harms, the compounded stress of litigation alone can increase the risk of suicidal behavior.29

   Although this article considers many statistics, it is particularly noteworthy that the number of Soldiers who lost their lives to suicide in recent years, at times, topped the number of Soldiers killed in action,30

   with 2009 marking the highest number of suicide deaths to date.31 In the

   same year, litigation in the Ninth Circuit Court of Appeals highlighted the Veterans Administration's (VA) statistics showing that eighteen veterans take their lives each day, with another one thousand, solely under the care of the VA, attempting suicide each month.32 Considering that legal problems have been ranked as the second risk factor for suicide, next to relationship problems at home and during military operations, the attorney's office or courtroom may be no different from the front line of a major disaster for a traditional first responder.33 Even a civilian who has never deployed to combat will face harmful stress responses to litigation, which can sometimes last for months, causing lack of sleep, depression, and other undesirable symptoms.34 For a population already susceptible to taking their own lives due to PTSD, clients who suffer from PTSD will face heightened stress and anxiety. This requires the attorney to know even more about the influence of PTSD on a client, even if such knowledge serves the limited purpose of informing an attorney when referral for diagnosis is more appropriate.

   The PTSD First Responder frame proposed by this article considers PTSD's effects on a client's decision-making before, and in addition to, consideration of the substantive legal issues in the case. At a minimum, knowledge of PTSD symptoms will enable the attorney to identify the need for referral. Furthermore, conscious awareness of the many ways in which PTSD can distort legal advice will enable the attorney to anticipate conditions that are likely to aggravate PTSD symptoms or the need for additional measures to improve the client's evaluation of legal information.35 This article, which is the first in a series,36 will provide an overview of major decisional impairments and how they can be identified during the course of legal counseling. Whether solutions to these problems originate with the attorney, a mental health provider, or the collaboration of both professionals, only this new perspective will

   meet the unique demand for "interdisciplinary" and "collaborative" action to address the mental health needs of a growing population of combat veterans.37

2. PTSD and Its Influence on Client Decisions

   Posttraumatic Stress Disorder is a condition caused by an overwhelming traumatic event that "distressingly recurs" in various manifestations leading to impairment lasting more than a month.38

   Although the Text Revision of the Diagnostic and Statistical Manual of Mental Disorders IV (DSM-IV-TR) recognizes PTSD as a "stress disorder," the condition "contains the components of both stress and anxiety."39 Anxiety is most apparent in the "chronic feeling of dread, apprehension, and hypervigilance" experienced by victims of PTSD.40 A

   synopsis of the seventeen...