Most lawyers I know struggle with the mental health needs of at least some of their clients. We are not trained for this work, and generally make a mess of it. Yet new rules of professional conduct place a premium on client communication. Just how many tirades drenched in hatred, rage and paranoia are we supposed to endure?
There are great fictions at work in the law. Perhaps the grandest of all is that of the reasonable person. The background assumption lurking beneath the surface of the common law is the notion that we are a community of reasonable minds. Folks bargaining in the law's shadows will reach the same conclusions, or, at the very least, will differ about conclusions along lines that all can identify and accept as rational.
But we are far from rational. Rage lurks in the shadows. So does anger, blind self-centeredness, paranoia and a host of other ghouls that may not rise to the level of out-and-out insanity, but which do cloud the horizon. Cracking the sociopath's code, now that would be an accomplishment worthy of note. Imagine how much simpler life would be if we could turn away rage with a kind word, or, in the alternative, know how to discern an anger which is appropriate to its place and circumstance from the infantile rage that bends everything toward itself, like a sinkhole?
I've been looking for a good book on character disorders in the civil litigation system. Thus far, I have not found anything. A week or so ago, I stumbled on a good survery of mental health issues in the criminal law. Crime, Punishment and Mental Illness: Law and the Behavioral Sciences in Conflict, by Patricia and Steven Erickson is part of the Critical Issues in Crime and Society series published by Rutgers University Press.
This book, published in 2008, does not really break new ground. Its value lies in the sketching out the terrain. In the criminal courts, voluntaristic assumptions about human behavior crash headlong into the emerging scientific understanding of the mind and its dysfunctions. The law cherishes its anachronistic commitment to punishment as a means of deterring those who choose to do wrong. Only those most severely ill are excused. But when a person is found not guilty by reason of insanity, they are warehoused nonetheless in an institution that has look and feel of a prison. Our grand experiment with deinstitutionalization of the mentally ill has failed; we're now inclined to imprison a deviant rather than treat him. So much is obvious.
Last week, Connecticut's Supreme Court handed down a decision that troubles me. (My firm took the appeal.) Our client killed his wife in a fit of rage. His trial lawyer had him evaluated and the doctor found the man to be unable to control himself. Simply put, he was a perfect storm waiting to break: poor treatment and bad illness yielded a horrible killing.
The jury rejected the mental disease and defect defense. In part, we argued, that was because the judge gave the jury a bad instruction. Only after the jury found that he had intended to kill his wife were they to consider whether he was unable to control his conduct. Didn't his doctor say he could not control himself? There was no state expert to contradict this claim.
The instructional issue was not properly preserved by trial counsel, so the Court did not squarely meet the issue. But it did telegraph how it might resolve the issue: When a person is cognitively ill, that is they cannot tell a person from a paper sack, mental illness may excuse a person. But mere volitional illness may not, the Court suggested. This would be a sad and tragic result. It is obvious to any litigator that many people simply cannot help themselves; our wills are not anywhere near so free as we pretend them to be.
The grand crimes of the criminal courts merely illustrate truths we refuse to face in the civil courtroom: What fuels a good deal of litigation is the high octane energy that flows from minds bent and twisted beyond reason. The failures we tolerate in the criminal justice system are replayed a thousand-fold in the civil system, driving up litigation costs, clogging dockets and wearying a court staff not trained to play intermittent therapist.
I wonder why the tort reformers of the world have not focused on this issue. And I wonder why there is a dearth of literature on character disorders and the civil justice system. Perhaps because we fail where mental illness is most obvious, we simply despair of the more nuanced tragedies that take place daily in the civil courts.