I’ve a brand-spanking-new lawyer reporting for duty this week. Freshly minted and admitted to the bar, she’s eager to show the world what she can do. I need her to help stay atop the chaos that comes of representing people in crisis. But how can I prepare her for what she’s about to see? She’s been trained about a world peopled with rational actors, folks who make cost-benefit decisions, who bargain in the law’s shadows. Nothing in her education prepared for the world most lawyers call home – the world just this side of crazy.
The law deals easily with those who are out-and-out insane, or with those who lack the competence to deal with their own affairs. In the criminal courts, a defendant can be found not guilty by reason of insanity if he or she lacks the ability to control their conduct in conformity with the law, so-called volitional insanity. Similarly, a person who cannot understand the difference between right and wrong can be deemed insane, so-called cognitive insanity. Few defendants are adjudicated insane, although I suspect far more defendants that we realize are, in fact, well beyond th reach of reason’s shadow.
But the insane, I say, are the easy cases.
So, too, are the incompetent.
Paradoxical as it may sound to a lay person, it is possible to be incompetent but sane.
In the criminal courts, a client is incompetent if they are unable to understand the nature of the charges against them, or if they are incapable of assisting in their own defense. A client who does not understand the nature of the charges against him may well be insane. But what of this business of assisting in your own defense? This is where the line between the irrational and rational becomes blurred. Everything is a matter of degree, and, although lawyers are supposed to be able to recognize the difference between a competent and incompetent client, nothing in a standard legal education prepares a lawyer to make such a judgment.
A client presented in criminal court on serious charges is a client in crisis. To what degree does the episodic stress of standing on the threshold of ruin yield confusion, rage, crippling fear? To what degree did underlying and pre-existing confusion, rage and crippling fear lead the client to engage in the conduct that resulted in his or her arrested? This difficult question of causation is at the very root of the difficulty a lawyer faces in determining whether to ask the court to order a competency evaluation.
But how to maintain the confidence of a client while asking the court to order a psychiatric examination? You don’t inspire trust by questioning competence. The essence of a thought disorder is such that the person who suffers from it doesn’t see or feel how bizarre their thought process has become. When is a client merely idiosyncratic but competent? When does an idiosyncrasy sink the boat of reason?
Many years ago, I represented a man on a larceny count. He claimed it was urgent that our office contact the CIA. He was a registered informant and had information the government had to have, or so he said. Delusions about the CIA’s ubiquitous role in the world, and of its ability to exert control over events, is far more common than most folks might realize; hence the dark humorist’s quip about the spy’s monitoring device implanted in his molar. When this client refused to talk about his case unless and until the CIA were called, my firm moved for a competency examination.The client was whisked off to a forensic facility for an evaluation. It seemed like the right call at the time.
Imagine my surprise several weeks later when our office received a call from the Department of Defense, not the CIA, asking about the client. It turns out he was doing undercover work of some sort for the government. I was not surprised to learn that the client was later deemed to be competent. Was the man unusual, even odd? Unquestionably. But he was neither incompetent nor insane, he was just a part-time mole for the feds.
Psychiatrists and social workers have a vast vocabulary to describe folks just this side of psychotic, but disturbed nonetheless. Consider the so-called character disorders: there are borderline personalities, sociopaths, histrionics, and on and on goes the list. Each disorder bears a cognizable thumb print, some set of behaviors or thoughts that represent a departure from the rational man or woman lawyers are taught to counsel.
What to do with a client who insists on inconsistent objectives and then blames you for not accomplishing the impossible? Or the client who needs to create a sense of crisis to feel alive? Or the person who tells you they understand you when you speak, but steadfastly refuses to help themself, but, instead, engages in self-destructive conduct? My hunch is that a significant portion of the cases in criminal courts are really reflections of underlying psychiatric disturbances the law is not nuanced enough to address. We imprison mentally ill people and call it justice.
The law’s dramas take place just south of crazy.
"You sound jaded," my new lawyer said the other day as I tried to prepare her for what she’ll see.
"Not at all," I responded. "I’ve just been around for a while."
I wish I knew where to send this new lawyer for training on how to recognize and cope with the needs of folks a few degrees away from whatever it is we call normal. I wish I knew where to go myself. We refuse to train lawyers on the role of the irrational in our courts. So much the worse for the law; so much the worse for our society.