Attorneys as first-responders: Recognizing the destructive nature of posttraumatic stress disorder on the combat veteran's* legal decision-making process

Military Law Review

Volumn 202, Issue , 2009, Pages 144-184

  Seamone, Evan R ^a  

^a U S ARMY   (United States)

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EID: 77951145412     PISSN: 00264040     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (282)

1. AM. PSYCHIATRIC ASS'N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 467-68 (text rev., 4th ed. 2000) [hereinafter DSM-IV-TR];
2. infra Part II (exploring the diagnostic criteria for PTSD) ;
3. infra Captain Evan R. Seamone, The Veteran's Lawyer as Counselor: Using Therapeutic Jurisprudence to Enhance Client Counseling for Combat Veterans with Posttraumatic Stress Disorder, 202 MIL. L. REV. 185, 241-44, app. A (2009) (reprinting diagnostic criteria).
4. See infra Part II;
5. vSeamone, supra note 1, app. A, at 241-42.
6. E.g., J. Ford Huffman, True Stories of PTSD, Brain Injury Victims and Those Who Try to Help, ARMY TIMES, http://www.armytimes.com/entertainment/books/ offduty-book-battles-081409/(last visited Dec. 18, 2009) (describing how clinicians now define the "combination of mild [Traumatic Brain Injury] with PTSD" as the "signature injury" of the wars in Afghanistan and Iraq").
7. In this sense, attorneys are much like Chaplains, who are also often forced to act as de facto counselors in order to compensate for the difficulty of mental health professionals in treating servicemembers with PTSD. Steven J. Danish & Bradley J. Antonides, What Counseling Psychologists Can Do to Help Returning Veterans, 37 COUNSELING PSYCHOLOGIST 1076, 1078 (2009).
8. E.g., FLA. STAT. § 112.1815 (1) (2009) (defining a "first responder" as "a law enforcement officer..., a firefighter... or an emergency medical technician or paramedic employed by the state or local government").
9. E.g., N. Y. PUB. HEALTH LAW § 3001 (5) (Consol. 2009) (defining a "certified first responder" as one who has met "minimum [training] requirements" and "who is responsible for administration of initial life saving care of sick and injured persons").
10. E.g., National Defense Authorization Act for Fiscal Year 2006, Pub. L. No. 109-163, § 596 (b) (1) (A), 119 Stat. 3136 (2006) (defining sexual assault first responders as "criminal investigators, medical personnel responsible for rape kit evidence collection, and victims advocates").
11. E.g., Scott Wylie, "After September 11: Disaster Preparedness: Document Protection Guidance for Lawyers and Their Clients, 44 ORANGE COUNTY LAW. 42, 44 (2002) ("Lawyers are often among the first responders after any major disaster in the United States-a fact unknown to many in our country.").
12. E.g., Sudha Shetty, Equal Justice Under the Law: Myth or Reality for Immigrants and Refugees?, 2 SEATTLE J. SOC. JUST. 565, 566-67 (2004) (recognizing that, the legal first responder has a responsibility to triage just like the medical first responder, which is satisfied in refugee cases when attorneys "assess... clients in... underserved communities where language and cultural barriers act as major barriers to accessing equal justice").
13. E.g., Nancy Cook, Hurricane Katrina: The Storm Still Rages, 56 R. I. B. J. 43, 43 (2008) (observing attorneys' status as first responders in the provision of various legal services to victims of Hurricane Katrina).
14. See Shetty, supra note 9, at 566-67 (recognizing the attainment of first responder status is warranted when an attorney performs the function of "triage" in a population where existing legal problems have evaded conscious attention).
15. Laura Savitsky et al., Civilian Social Work: Serving the Military and Veteran Populations, 54 SOCIAL WORK 327, 336 (2009) ("It is insufficient to assume that the care of service members, veterans, and their families will be adequately provided for by military and governmental systems.").
16. "[Although approximately 80% of Iraq and Afghanistan service members with a serious mental health disorder such as PTSD acknowledged that they had a problem, only approximately 40% stated that they were interested in receiving help. " Brett T. Litz, Research on the Impact of Military Trauma: Current Status and Future Directions, 19 MIL. PSYCHOL. 217, 222 (2007). Of the respondents, "[o]nly 26% reported receiving formal mental health care."
17. Id.
18. Delayed Onset PTSD describes a condition in which symptoms begin more than a month following the trauma. DSM-IV-TR, supra note 1, at 467-68.
19. For further discussion see BRIDGET C. CANTRELL & CHUCK DEAN, DOWN RANGE TO IRAQ AND BACK 71-72 (2005).
20. See discussion infra note 54 and accompanying text.
21. See infra Part II. E.
22. Savitsky et al., supra note 12, at 329-34 (identifying, amongst other issues with obvious legal ramifications, interpersonal domestic violence, child abuse and neglect, substance abuse, and financial considerations, which could potentially lead to incarceration).
23. Such sentiments are representative of attorneys' general reluctance to transform into the role of a social worker. E.g., Susan Diacoff, Law as a Healing Profession: The "Comprehensive Law Movement, " 6 PEPP. DISP. RESOL. L. J. 1, 59 (2006) (recognizing that "[t]he dominant, traditional approach found in the profession usually downplays, if not ignores, " the client's feelings, emotions, and an attorney's involvement in addressing them") ;
24. Clare Huntington, Repairing Family Law, 57 DUKE L. J. 1245, 1311 (2008) (noting that "attorneys should not become therapists, " even in heated family law disputes involving non-legal counseling).
25. E.g., Rory E. Riley, Preservation, Modification, or Transformation?: The Current State of the Department of Veterans Affairs Disability Benefits Adjudication Process and why Congress Should Modify, Rather than Maintain or Completely Redesign, the Current System, 18 FED. CIR. B. J. 1, 9 (2008) (observing the increase in PTSD disability claims related to the campaigns in Iraq and Afghanistan and the highly complex nature of these cases).
26. E.g., 38 C. F. R. § 3.159 (a) (1) (2009) (articulating the VA's minimum standards for competent medical evidence from a person qualified to diagnose mental illness).
27. E.g., Brigid Coleman, Note, Lawyers Who are Also Social Workers: How to Effectively Combine Two Different Disciplines to Better Serve Clients, 7 WASH. U. J. L. & POL'Y 131, 144 (2001) (revealing that while attorneys have a duty provide clients with advice on personal courses of action, mental health providers operate from an opposing "self-determination" model that eschews an advisory role).
28. Not only is issue framing considered a "hallmark" of legal education, e.g., Adam Neufeld, Costs of an Outdated Pedagogy? Study on Gender at Harvard Law School, 13 AM. U. J. GENDER SOC. POL'Y & L. 511, 512-13 (2005) (observing the engrained nature of the "issue-spotter examination" in legal education), it is also indispensable in legal practice.
29. E.g., Kathryn M. Stanchi, Resistance is Futile: How Legal Writing Pedagogy Contributes to the Law's Marginalization of Outsider Voices, 103 DICK. L. REV. 7, 23 (1998) ("Framing or characterizing the issue in law is an extremely important tool of advocacy because it dictates what facts are relevant, what law applies, and who wins.").
30. J. EDWARD RUSSO & PAUL J. H. SCHOEMAKER, DECISION TRAPS: THE TEN BARRIERS TO BRILLIANT DECISION-MAKING & HOW TO OVERCOME THEM 19 (1989).
31. Id.at 15.
32. The prioritization of ultimate legal issues, combined with lack of training on the intersection of mental health and client counseling, generates insensitivity to underlying mental health issues. See, e.g., Judy H. Kluger et al., The Impact of Problem Solving on the Lawyer's Role and Ethics, 29 FORDHAM URB. L. J. 1892, 1918 (2002) (comments of Susan Hendricks) (observing that defense attorneys do not routinely attend training in "types of mental illness and their treatment" and, if polled "on their own knowledge of [mental health] issues,... a proud and significant percentage would tell you that they do not need to know about these topics because they are attorneys, defense attorneys, not social workers") ;
33. id. (observing that lack of knowledge of mental health issues "mak[es] it harder for [these same attorneys] to meet their ethical obligations to counsel clients fully").
34. In criminal practice, the ultimate PTSD issue is normally limited to severity of the condition and the impact of the condition on the client's understanding of the charged criminal conduct. E.g., Major Timothy P. Hayes, Jr., Post-Traumatic Stress Disorder on Trial, 191 MIL. L. REV. 67, 85-100 (2007) (describing standards for lack of mental responsibility or partial mental responsibility negating specific intent). In disability cases, the ultimate PTSD issue concerns the question of whether the onset of the condition is related to the client's military service.
35. E.g., Heathcote W. Wales, Causation in Medicine and Law: The Plight of Iraq Veterans, 35 NEW. ENG. J. ON CRIM. & CIV. CONFINEMENT 376-89 (2009) (describing the evidentiary hurdles posed by the causation requirements in establishing service connection for mental illness, including PTSD) ;
36. VETERANS BENEFITS MANUAL 146-168 (Barton F. Stichman & Ronald B. Abrams eds., 2007) (describing a complex series of special considerations that apply to the evaluation of PTSD disability claims).
37. E.g., Rebecca J. Covarubias, Lives in Defense Counsel's Hands: The Problems and Responsibilities of Defense Counsel Representing Mentally Ill or Mentally Retarded Capital Defendants, 11 SCHOLAR 413, 443 (2009) (observing that counsel are often unable to discover a client's mental condition because "the attorney does not know how to identify the symptoms") ;
38. see also Evelyn Lundberg Stratton, Solutions for the Mentally Ill in the Criminal Justice System, 32 CAPITAL U. L. REV. 90, 102 (2004) (noting that the attorney's "perceptions are more accurate to the extent that he is trained and knows how to look for distortions in viewing and interpreting even simple behavior").
39. Consider, for example, the trial defense counsel who advises an active duty servicemember regarding nonjudicial punishment. The attorney may believe that the issue is isolated, and fail to detect a pattern of conduct related to symptoms of PTSD. If the client continues to engage in risky behavior related to symptoms of the untreated condition, the recidivism could lead to a discharge under other than honorable conditions that eliminates or substantially limits his ability to receive necessary medical treatment upon separation, even if he is diagnosed with PTSD at the time. E.g., 38 C. F. R. § 3.12 (b) (2009) (barring eligibility for veterans' benefits under several circumstances related to misconduct or characterization of discharge unless the veteran was "insane at the time of committing the offense") ;
40. Brittany Cvetanovich & Larkin Reynolds, Note, Joshua Omvig Veterans Suicide Prevention Act of 2007, 45 HARV. J. ON LEGIS. 619, 634 (2008) ("Receiving a less-than-honorable discharge, even for offenses linked to PTSD (such as drug abuse, being absent without leave, and assault), renders a veteran ineligible to receive medical benefits.") ;
41. Amy N. Fairweather, Compromised Care: The Limited Availability and Questionable Quality of Health Care for Recent Veterans, 35 HUM. RTS. 2, 24 (2008) (observing the "limited eligibility for federal benefits" and a "particularly cruel outcome for many veterans who suffer from PTSD and are kicked out of the military for behavior stemming from their combat injury"). All the while, the attorney, who had no knowledge of PTSD symptoms, could go on thinking that she did everything within her power and responsibility to assist the client when she counseled him on the legal issues related to the initial minor infraction.
42. Savitsky, supra note 12, at 333 ("When mental health issues are not addressed, the results may be deadly.") ;
43. id. ("Without treatment and support, PTSD-related stress may lead to divorce, substance abuse, family violence, unemployment... and other related issues that can have a lasting, detrimental effect on family life and society.").
44. See generally Cvetanovich & Reynolds, supra note 28, at 620 ("Numerous studies have linked suicide to PTSD and other mental illnesses.").
45. E.g., Chuck Crumbo, Military Moms Meet on Somber Occasion; Gold Star Mother Chapter Opens in Columbia, HERALD (Rock Hill, S. C.), Aug. 2, 2009, at 28 (observing that, in 2008, "[t]hrough mid-July, 129 soldiers had died from suicide, exceeding the combat death toll").
46. Compare Grace Vuoto, Wounds of War; Army Suicides at Record Pace, WASH. TIMES, July 2, 2009, at B02 (predicting a suicide rate in which "the tally for 2009 will likely eclipse last year's total of 140 suicides, the highest rate since the Pentagon began recording suicide rates 28 years ago")
47. with Mark Mueller & Tomãis Dinges, The Wounds Within: Suicide in the Military, STAR LEDGER (Newark, N. J.), Nov. 22, 2009, at 1 (noting that by October 2009, the Marine Corps matched its prior year's suicide record of forty-two and by 16 November 2009, the Army had matched its own record of 140 cases) ;
48. see also Elizabeth A. Stanley & Amishi P. Jha, Mind Fitness: Improving Operational Effectiveness and Building Warrior Resilience, 8 JOINT FORCE Q. 144, 144 (2009) (noting "the growing number of suicides, with the Marine Corps experiencing more suicides in 2008 than since the war began and the Army logging its highest monthly total in January 2009 since it began counting in 1980").
49. See, e.g., Bob Egelko, Federal Court Hears Vets' Appeal on Mental Health, S. F. CHRON., Aug. 13, 2009, at A7 (revealing Veterans Administration statistics that "reported 18 suicides a day among veterans and 1, 000 suicide attempts a month among the 30 percent of veterans under VA care").
50. Savitsky et al., supra note 12, at 333 ("The leading suicide risk factors were problems with relationships at home and in combat, followed by legal actions....").
51. E.g., Larry J. Cohen & Joyce H. Vesper, Forensic Stress Disorder, 25 L. & PSYCHOL. REV. 1, 17-19 (2001) (describing harmful symptoms of this litigation-induced disorder).
52. See generally Seamone, supra note 1 (providing further analysis of possible measures individual attorneys can take to improve client counseling).
53. Id.
54. Savitsky et al., supra note 12, at 337. In a recent task force report on the Army's medical evaluation process, General (Ret.) Frederick Franks, Jr., recognized attorneys and paralegals as "stakeholders in the disability evaluation system" and emphasized how all stakeholders must endeavor "never [to] leave a fallen comrade, " even in addressing potential unseen injuries like PTSD or TBI."
55. GENERAL (RET.) FREDERICK FRANKS, JR., I WILL NEVER LEAVE A FALLEN COMRADE: FINAL TASK FORCE RECOMMENDATIONS TO BETTER FULFILL THE ARMY'S DUTY IN MEB/PEB 1, 627 (29 Apr. 2009).
56. DSM-IV-TR, supra note 1, at 467-68.
57. ASHLEY R. HART II, AN OPERATOR'S MANUAL FOR COMBAT PTSD: ESSAYS FOR COPING 6 (2000).
58. Id.
59. Seamone, supra note 1, app. A, at 241-42.
60. William P. Nash, Combat/Operational Stress Adaptations and Injuries, in COMBAT STRESS INJURY: THEORY, RESEARCH, AND MANAGEMENT 33, 51 (Charles R. Figley & William P. Nash eds., 2007) [hereinafter COMBAT STRESS INJURY].
61. LAURIE B. SLONE & MATTHEW J. FRIEDMAN, AFTER THE WAR ZONE: A PRACTICAL GUIDE FOR RETURNING TROOPS AND THEIR FAMILIES 23 (2008) ("Frequent Combat Experiences Reported by Members of the U. S. Army and Marines").
62. A detailed breakdown can be found in Charles W. Hoge et al., Combat Duty in Iraq and Afghanistan, Mental Health Problems, and Barriers to Care, 351 NEW. ENG. J. MED. 13, 18 tbl.2 (2004) (accounting for "Combat Experiences Reported by Members of the U. S. Army and Marine Corps After Deployment to Iraq or Afghanistan").
63. Albert "Skip" Rizzo et al., Virtual Reality Applications for the Treatment of Combat-Related PTSD, in COMBAT STRESS INJURY, supra note 42, at 183, 184.
64. ERIC NEWHOUSE, FACES OF COMBAT PTSD & TBI: ONE JOURNALIST'S CRUSADE TO IMPROVE TREATMENT FOR OUR VETERANS 18-19 (2008).
65. Id. at 12;
66. Rizzo et al., supra note 44, at 184-85 (observing "[t]he majority of trauma victims naturally recover as indicated by a gradual decrease in PTSD symptom severity over time").
67. NEWHOUSE, supra note 45, at 19 (citing an interview with Dr. Matthew Freidman, Executive Director of the Veterans' Administration National Center for PTSD).
68. E.g., CANTRELL & DEAN, supra note 14, at 71-72. Delayed Onset PTSD describes symptoms that begin more than a month after the trauma.
69. NEWHOUSE, supra note 45, at 19.
70. Pauline Jelinek, Wartime PTSD Cases Jumped Roughly 50% in 2007, May 27, 2008, http://www.huffingtonpost.com/2008/05/27/wartime-ptsd-cases-jumped-n- 103779.html.
71. Rachel Dekel & Zahava Solomon, Secondary Traumatization Among Wives of War Veterans with PTSD, in COMBAT STRESS INJURY, supra note 42, at 137, 138.
72. NEWHOUSE, supra note 45, at 18 ("Soldiers on their third/fourth deployments are at particular risk of reporting mental health problems.") ;
73. Danish & Antonides, supra note 4, at 1082 ("With increased deployments, the likelihood of greater levels of PTSD, depression, and TBI increases.").
74. E.g., Dan Heilman, Returning Veterans with Post Traumatic Stress Disorder Present Unique Challenges for the Criminal Justice System, MINN. LAW., Oct. 27, 2008 (observing "[w]e've had 1.7 million people deployed in Iraq and Afghanistan, and almost half of them have gone back more man once"). It is not uncommon now to encounter military members who have deployed five times.
75. E.g., Savitsky et al., supra note 12, at 327;
76. Danish & Antonides, supra note 4, at 1082 ("As of August 2008, one third of those deployed have served at least two tours in a combat zone, more than 70, 000 have been deployed three times, and more than 20, 000 have been deployed at least five times.").
77. E.g., Rand Center for Military Health Policy Research, Research Highlights: Invisible Wounds: Mental Health and Cognitive Care Needs of America's Returning Veterans (2008), at 3 ("Our survey found that only 53% of returning troops who met the criteria for PTSD or major depression sought help from a provider for these conditions in the past year.").
78. E.g., Covarubias, supra note 27, at 442 (observing that "[m]entally ill individuals often choose to hide their symptoms because of the stigma associated with their illness"). For a survey of leading reasons why servicemembers with PTSD refuse to obtain the services they so desperately need
79. see Litz, supra note 13, at 222-23.
80. E.g., George W. Reilly, Second Wind Foundation Offers New Help for PTSD Sufferers, PROVIDENCE J. (Rhode Island), Feb. 4, 2008, at C-06 ("Many veterans either do not recognize the signs of PTSD or are in denial out of fear of being stigmatized.").
81. E.g., Wales, supra note 26, at 374 ("[M]any service members will not be symptomatic, or aware that they are symptomatic, until sometime after leaving active duty.").
82. See infra Parts II. E.1-3 (discussing various therapies including Virtual Reality Therapy).
83. "[O]ur American, and especially our military, culture can make it difficult to admit that you have psychological pain and even more difficult to seek mental health treatment if you do need help. " SLONE & FRIEDMAN, supra note 43, at 137. Soldiers may "fear that they will be labeled as weak or 'mental, ' or that others will think less of them because they have sought professional assistance."
84. Id. In an effort to combat these perceptions, the Army has launched a number of efforts. Changes in security clearance protocols now recognize that it is perfectly normal for a Soldier to seek mental health counseling in relation to combat experiences.
85. E.g., Editorial, Army is Tracking Stress Disorders in the Field, MIAMI HERALD (Sun. ed.), July 27, 2008 (recognizing that "[t]he pentagon no longer treats visits to a counselor as an adverse factor in giving security clearances"). Furthermore, general officers, such as General Carter Ham, Commander of the Army's European Command, and Major General David Blackledge, have publicly shared their own experiences recovering from PTSD in an effort to demonstrate that this condition can influence just about anyone, and help is necessary to combat its negative effects.
86. E.g., Editorial, A Four-Star General Admits to Suffering from PTSD, REG.-GUARD (Eugene, Ore.), Dec. 1, 2008, at PA8 (describing General Ham's experience) ;
87. Editorial, Marching Toward Wellness, WASH. TIMES, Dec. 3, 2008, at B01 (describing Major General Blackledge's experiences). Some military programs even permit servicemembers to receive mental health treatment at primary care facilities to avoid the stigma of going to a mental health center for treatment.
88. E.g., Less Spivey, New Approach to PTSD Offers Service Members Greater Privacy, Reduced Stigma, U. S. DEP'T OF DEF., MIL.. HEALTH SYS., July 15, 2009, http://www.health.mil/Press/Release, aspx?ID=822 (describing a pilot program instituted at Lackland Air Force Base). Despite these efforts, some Soldiers are still reluctant to seek help for their symptoms because they "fear that psychological problems can't be fixed or believe they should just be able to get over it on their own. "
89. SLONE & FRIEDMAN, supra note 43, at 137-38.
90. E.g., Lynne Gold-Bilin & Jonathan W. Gould, Post Traumatic Stress Disorder and the Practice of Family Law, 19 J. AM. ACAD. MATRIMONIAL L. 17, 31 (2004) ("As troops return from such hotspots as Iraq and Afghanistan, the issue of PTSD will become more important to the family law attorney.").
91. E.g., Casey T. Taft et al., Risk Factor for Partner Violence Among a National Sample of Combat Veterans, 73 J. CONSULTING & CLIN. PSYCHOL. 151 (2005) (observing significant rates of partner violence among combat veterans as high as one third) ;
92. Savitsky et al., supra note 12, at 329 ("[I]nability to moderate aggression postdeployment may result in misplaced, inappropriate aggression and lead to family violence.").
93. KEITH ARMSTRONG ET AL., COURAGE AFTER FIRE: COPING STRATEGIES FOR TROOPS RETURNING FROM IRAQ AND AFGHANISTAN AND THEIR FAMILIES 31 (2006) (observing that avoidance is a common symptom of PTSD which affects all members of the family by causing them to feel rejected) ;
94. see also Dekel & Solomon, supra note 50, at 137, 141 ("[W]ives of PTSD veterans report greater spousal conflict, less intimacy, less cohesion, and less martial satisfaction than wives of non-PTSD veterans, as well as more verbal and physical violence by their husbands.")
95. E.g., Dekel & Solomon, supra note 50, at 137 ("[W]ives of traumatized veterans are one of the various groups of persons who have been identified as suffering psychological consequences of traumatic events which they did not experience at first hand, but through their close proximity to a direct victim."). The authors note that secondary traumatization of wives may result in the "transmission of nightmares, intrusive thoughts, flashbacks, and other symptoms."
96. Id. at 138.
97. U. S. DEP'T OF DEF. TASK FORCE ON MENTAL HEALTH, AN ACHIEVABLE VISION: REPORT OF THE DEPARTMENT OF DEFENSE TASK FORCE ON MENTAL HEALTH 36 (2007). In a related statistic, "The yearly divorce rate in the U. S. Army nearly doubled for enlisted personnel and tripled for officers between 2001 and 2004."
98. Danish & Antonides, supra note 4, at 1082.
99. See also HART, supra note 39, at 10 ("Many combat veterans report some initial difficulty in adjustment but develop severe problems later in life when there are other psychosocial complications which include increased responsibility at work, family dynamic issues such as divorce, separation, and challenging teenagers for example."). The return to the household after redeployment often leads to such a response.
100. Id.
101. "Estimates put the number of service veterans under some form of correctional supervision at more than 500, 000." Rhonda McMillion, Sending in Reinforcements: A New ABA Group Will Coordinate Efforts to Bolster Legal Services for Veterans, A. B. A. J., Apr. 2009, at 62, 62;
102. see also Heilman, supra note 52 (observing "About 600, 000 of those people have PTSD and TBI... and less than half of them get the help they need. Those are the ones who end up in the criminal courts.") ;
103. C. Peter Erlinder, Post-Traumatic Stress Disorder, Vietnam Veterans and the Law: A Challenge to Effective Representation, 1 BEHAV. SCI. & L. 25, 30 (1983) ("Some authorities have suggested, that 25% to 30% of Vietnam veterans who saw heavy combat have been arrested on criminal charges.").
104. E.g., CANTRELL & DEAN, supra note 14, at 32-33.
105. See also Larry R. Decker, Combat Trauma: Treatment From a Mystical, Spiritual Perspective, J. HUMANISTIC PSYCHOL. 30, 32 (2007) ("Many combat veterans found war to be the most meaningful experience of their lives and frequently long for a return to the intensity of the horror.").
106. CANTRELL & DEAN, supra note 14, at 32.
107. Id. at 33.
108. Heilman, supra note 52 (recounting the story of a combat veteran who "gets in fights in bars because he can't stop wanting to fight"). Early studies of Vietnam veterans revealed that those with PTSD "reported an average of 20 acts of violence in the past year compared to less than one act reported by combat veterans without PTSD."
109. Matthew Jakupcak et al., Anger, Hostility, and Aggression Among Iraq and Afghanistan War Veterans Reporting PTSD and Subthreshold PTSD, 20 J. TRAUMATIC STRESS 945, 946 (2007). Like the earlier studies, more recent ones confirm that "symptoms of PTSD are associated with anger, hostility and aggression among Iraq and Afghanistan war veterans."
110. Id. at 947-50.
111. HART, supra note 39, at 11 ("Nearly seventy percent of veterans with combat PTSD also have other diagnosable mental health problems. The two most prominent are affective disorder and substance abuse."). Such substance abuse normally includes pain killers, alcohol, and marijuana, all of which are abused to meet the "expectation that the intoxicant will create a change in mood."
112. Id.
113. Constantina Aprilakis, Note, The Warrior Returns: Struggling to Address Criminal Behavior by Veterans with PTSD, 3 GEO. J. L. & PUB. POL'Y 541, 553 (2005).
114. E.g., Erlinder, supra note 64, at 33-35 (discussing a Louisiana trial in which a longrange reconnaissance veteran successfully argued temporary insanity to a murder charge based on a PTSD flashback episode where he went into a defensive mode as if in combat).
115. Hayes, supra note 26, at 78.
116. U. S. DEP'T OF ARMY, REG. 27-26, RULES OF PROFESSIONAL CONDUCT FOR LAWYERS R. 1.13 (b) (1 May 1992) [hereinafter AR 27-26] ("An Army lawyer shall not form a clientlawyer relationship or represent a client other than the Army unless specifically assigned or authorized by a competent authority.").
117. E.g., Deborah Epstein et al., Transforming Aggressive Prosecution Policies: Prioritizing Victims' Long-Term Safety in the Prosecution of Domestic Violence Cases, 11 AM. U. J. GENDER SOC. POL'Y & L. 465, 474 (2003) ("One study of victims involved in the criminal court system found that almost 40% met formal diagnostic criteria for PTSD. Victims experiencing PTSD may have extreme difficulty concentrating, feel constantly on guard or jumpy, and experience unpredictable outbursts of rage.").
118. See also Hayes, supra note 26, at 101-02 (discussing attempts to discredit witnesses at courts-martial based on their diagnoses of PTSD).
119. E.g., Captain Daniel E. Speir, Application and Use of Post-Traumatic Stress Disorder as a Defense to Criminal Conduct, ARMY LAW., June 1989, at 17;
120. Samuel P. Menefee, The "Vietnam Syndrome" Defense: A "G. I. Bill of Criminal Rights"?, ARMY LAW., Feb. 1985, at 1. For example, in the most recent Military Law Review article focusing on PTSD, the author's "main emphasis" was "an analysis of PTSD within the military courtroom."
121. Hayes, supra note 26, at 69. This article supplements that common objective with an analysis of PTSD within the attorney's office.
122. * 37-49 (N-M. Ct. Crim. App. June 27, 2007) (addressing the claim that defense counsel were ineffective when "they failed to recognize, secure, and present evidence and expert testimony concerning the impact that post-traumatic stress disorder (PTSD) and/or acute stress disorder (ASD) had upon the appellant's ability to form the specific intent required for [the charged offenses]").
123. * 6-8 (N-M. Ct. Crim. App. Sept. 27, 2007) (addressing the claim that the defense counsel failed to introduce evidence of PTSD beyond the accused Marine's statement that he was taking medication for PTSD).
124. E.g., id.
125. Observers note that returning Iraq and Afghanistan veterans have placed a greater tax on the criminal justice system because of the unique aspects of these conflicts. E.g., Robert T. Russell, Veterans Treatment Court: A Proactive Approach, 35 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 357, 357 (2009) ("With the increase of [Afghanistan and Iraq] veterans with serious needs in our criminal justice system, comes the need for the system to develop innovative ways of working to address these issues and needs."). For example, in the advent of effective life-saving measures, far more Soldiers have survived to return home with serious mental health complications from their combat injuries.
126. E.g., ILONA MEAGHER, MOVING A NATION TO CARE: POST-TRAUMATIC STRESS DISORDER AND AMERICA'S RETURNING TROOPS, at xxi (2007) : [I]n today's theaters of war, where troops are dealing with extended and multiple deployments, twenty-four hour operations with no opportunity to unwind, sleep deprivation, ever changing mission goals and guerilla warfare conditions where enemies and civilians blend together, it has been estimated that cases of PTSD may be higher than in past conflicts.
127. See also Candice M. Monson et al., Cognitive Processing Therapy for Veterans with Military-Related Posttraumatic Stress Disorder, 74 J. CONSULTING & CLIN. PSYCHOL. 898, 898 (2006) ("[R]esearch with active duty personnel in Iraq and Afghanistan suggests that we are creating a new generation of veterans with high levels of PTSD and related mental health symptoms.").
128. E.g., Christopher Hawthorne, Bringing Baghdad into the Courtroom: Should Combat Veterans be Part of the Criminal Justice Equation, 24 CRIM. JUST. 4, 6 (2009) (describing the ten-minute Video Public Service Announcement, "Beyond the Yellow Ribbon: PTSD and Veterans, " created by the Norfolk County District Attorney's Office in Clinton, Massachusetts, "which explains to law enforcement the 'natural reactions to unnatural events' that cause post-combat trauma in veterans").
129. CAL. PENAL CODE § 1170.9 (LexisNexis 2009). This legislation "lets judges depart from presumptive prison sentences in cases involving veterans with PTSD, and, when suitable, order treatment in lieu of jail time." Heilman, supra note 52.
130. MINN. STAT. § 609.115 (LexisNexis 2009). Under this legislation, "If the defendant is a veteran and has been diagnosed as having a mental illness, the court may consult with the federal or state Department of Veterans Affairs to determine treatment options in lieu of or along with a jail sentence." Heilman, supra note 52.
131. Russell, supra note 79, at 364.
132. Id. at 363: As presiding judge over Buffalo's Drug Treatment and Mental Health Treatment courts, I noticed that many of the participants on my docket had something in common-They were veterans. In fact, it was the noticeable rise in the numbers of veterans on the city treatment dockets that ultimately led to the advent of a specialized Veterans Treatment Court.
133. Judge Russell observes the dramatic change in traditional courtroom roles. "To facilitate the veterans' progress in treatment, the prosecutor and the defense counsel shed their traditional adversarial courtroom relationship and work together as a team." Id. at 365.
134. Mary Ellen Schneider, Broadcast, Treatment Courts Aimed at Getting Vets Back on Track (Int'l Med. News Group Broadcast, June 26, 2009).
135. E.g., Jane Pribek, Reaching Out to Returning Vets: Veterans' Treatment Court Moves Forward in Wisconsin, WIS. L. J. (Milwaukee, Wis.), Feb. 2, 2009 (describing the Wisconsin Veterans Intervention Program).
136. Editorial, Helping Vets, TULSA (OKLA.) WORLD (Final ed.), Dec. 10, 2008, at A22.
137. Hawthorne, supra note 80, at 12.
138. Editorial, supra note 88, at A22.
139. Schneider, supra note 86.
140. E.g., Services, Education, and Rehabilitation for Veterans Act, H. R. 7149, 110th Cong. § 2 (2008) (proposing federal funding for veterans treatment courts throughout the nation).
141. Foremost, on active duty, narcotics pose special dangers due to operational conditions, including access to weapons and multimillion dollar equipment
142. Major Tyesha E. Lowery, One "Get out of Jail Free" Card: Should Probation be an Authorized Courts-Martial Punishment?, 198 MIL. L. REV. 165, 166-67 (2008). Commanders have articulated the major reason for this limitation: "[O]ur legal system is pretty efficient in comparison to the civilian system. From flash to bang-it's pretty quick. The overhead [i.e., manpower required to supervise the Soldier] would be debilitating. We don't have the overhead to monitor Soldiers."
143. Id. at 197-98 (citing Interview with Colonel David Clark, Commander, Training Support Brigade, Fort Sam Houston, Tex. (Feb. 29, 2008)).
144. E.g., Pribek, supra note 87 (recognizing that veterans' treatment court programs require "a comprehensive training program for defense attorneys, prosecutors, judges, [and others], " focused on "the effects of PTSD, and how to effectively interact with veterans with it, and other service-related disorders").
145. E.g., Bruce J. Winick & David B. Wexler, The Use of Therapeutic Jurisprudence in Law School Clinical Education: Transforming the Criminal Law Clinic, 13 CLIN. L. REV. 605, 613 (2007) ("The criminal defense lawyer... must possess the psychological skills necessary to understand when the client's problem is the product of alcoholism or substance abuse, mental illness, or some behavioral disorder, all of which may respond to treatment or rehabilitation in an appropriate community program.") ;
146. Kluger et al., supra note 25, at 1918 (recognizing that "problem-solving courts, " like veterans' treatment courts, "are... changing the parameters with respect to client counseling" by requiring attorneys to develop expertise in alcoholism, substance abuse, and mental illness for the purpose of fulfilling "ethical obligations") (comments of Susan Hendricks).
147. E.g., Russell, supra note 79, at 365 (recognizing that veterans' treatment courts require both prosecutors and attorneys to "shed their traditional adversarial courtroom relationships and work together as a team").
148. E.g., Katrina J. Eagle & Steve R. Binder, Veterans Facing Criminal Charges: How a Community of Professionals Can Serve Those Who Served Our Country, 16 NEV. LAW. 16, 16 (2008) ("The veteran's trauma is compounded by the threat of a criminal charge and punishment for the offense.").
149. Cohen & Vesper, supra note 34, at 2.
150. Id. at 17-19 (describing diagnostic criteria for FSD).
151. Id. at 5;
152. see also Bruce Winick, Therapeutic Jurisprudence and the Role of Counsel in Litigation, 37 CAL. W. L. REV. 105, 109 (2001) ("Criminal and similar kinds of legal proceedings are intensely stressful and can create feelings of fear, anxiety, and depression. "). (Pubitemid 33232887)
153. Cohen & Vesper, supra note 34, at 4 ("Although litigants may suffer symptoms found in individuals diagnosed with acute or posttraumatic stress disorder, the psychological disturbance for litigants usually abates within six months after the legal case has concluded.").
154. Id. at 14 ("[I]ndividuals who witnessed violent or life threatening-events as well as those people who were involved in traumatic accidents prior to litigation experience acute stress reactions.").
155. J. Vincent Aprile II, PTSD: When the Crime Punishes the Perpetrator, 23 CRIM. JUST. 39, 39 (2009).
156. Id. at 40.
157. E.g., Diacoff, supra note 18, at 55: Lawyers working with traumatized clients can help reverse the effects of trauma, by using excellent interpersonal skills. For example, if the client was raped and experienced degradation and humiliation, the lawyer can provide the client with an additional measure of respect, autonomy, and control. The attorney can ask the client when and for how long she wants to talk about the event, listen well, and treat her with respect.
158. Symposium, Stress, Burnout, Vicarious Trauma, and Other Emotional Realities in the Lawyer/Client Relationship: A Panel Discussion, 19 TOURO L. REV. 847, 860-61 (2004) (comments of Professor Peters).
159. E.g., SANFORD M. PORTNOY, THE FAMILY LAWYER'S GUIDE TO BUILDING SUCCESSFUL CLIENT RELATIONSHIPS 19 (2000) ("Obviously the first step in management of your client is recognition of what needs to be managed.") ;
160. Covarrubias, supra note 27, at 443 (observing that counsel are often unable to discover a client's mental condition because "the attorney does not know how to identify the symptoms") ;
161. see also Evelyn Lundberg Stratton, Solutions for the Mentally Ill in the Criminal Justice System, 32 CAPITAL U. L. REV. 90, 102 (2004) (noting that the attorney's "perceptions are more accurate to the extent that he is trained and knows how to look for distortions in viewing and interpreting even simple behavior").
162. Lynette M. Parker, Increasing Law Students' Effectiveness When Representing Traumatized Clients: A Case Study of the Katharine & George Alexander Community Law Center, 21 GEO. IMMIGR. L. J. 163, 171 (2007).
163. Marjorie A. Silver, Love, Hate, and Other Emotional Interference in the Lawyer/Client Relationship, 6 CLIN. L. REV. 259, 275 (2000) ;
164. see also Erlinder, supra note 64, at 26 (recognizing that "few attorneys are likely to recognize that a wide range of client problems from criminal charges and substance abuse to family problems and employment disputes may be related to PTSD....").
165. Parker, supra note 108, at 182.
166. Id. at 190 ("The area of trauma, PTSD, and vicarious trauma is a specialized course not necessarily taken by all psychology master students.").
167. Id. at 167. Others, such as Professor Erlinder, recognize the attorney's duty to learn about PTSD for service to all clients in general: PSTD can affect virtually every aspect of a veteran/client's behavior. Additionally, the effects may be subtle, and the... effects may not appear to be related to combat at all. For attorneys untrained in psychology or psychiatry, this implies a duty to examine a veteran client's psychological history for a PTSD connection with particular care, even when the relationship is not readily apparent.
168. Erlinder, supra note 64, at 30.
169. PORTNOY, supra note 107, at 31.
170. The term "OODA loop" originated with Air Force strategist Colonel R. Boyd. John R. Boyd, Patterns of Conflict, lecture notes (1986), available at http://www.d-ni.net/boyd/pdf/poc.pdf. As an acronym for the repeated steps "Observe, Orient, Decide, and Act, " the OODA loop relates to accurate "situational awareness."
171. Doug Richardson, Network-Centric Warfare: Revolution or Passing Fad?, 28 ARMADA INT'L 62, 62 (2004). The victorious force will be triumphant over its opposition because it has a faster and more continuous OODA loop.
172. Id.
173. See also Zheyao Li, Note, War Powers for the Fourth Generation: Constitutional Interpretation in the Age of Asymmetric Warfare, 7 GEO. J. L. & PUB. POL'Y 373, 399 & n. 144 (2009). Colonel Boyd's theory has been applied in varied contexts including the portrayal of the United States in the media.
174. E.g., Newt Gingrich & Mark Kester, A Security Strategy of Transforming Societies: From Stabilizing to Transforming Societies as the Key to American Security, 28 FLETCHER F. WORLD AFF. 5, 11 (2004). In the context of combating PTSD's many distortions, the attorney can effectively neutralize the client's distorted thinking and prevent complications throughout the litigation if she routinely checks for signs of PTSD and then intervenes promptly after spotting the signs.
175. E.g., Nash, supra note 42, at 53 (recognizing that traumatic stress has the ability to "shatter necessary and deeply held beliefs") ;
176. Decker, supra note 65, at 31 (observing that "[t]he very nature of trauma is such that it attacks our basic beliefs and challenges our processes of accommodation and assimilation" and that "most trauma survivors' beliefs (including combat veterans') are deconstructed and set into disarray").
177. Nash, supra note 42, at 53. In this recognition, Nash recounts the three core fundamental assumption recognized by Dr. Janhoff-Bulman, and adds the additional two fundamental assumptions based on his clinical experience.
178. See generally RONNIE JANHOFF-BULMAN, SHATTERED ASSUMPTIONS: TOWARD A NEW PSYCHOLOGY OF TRAUMA (1992).
179. Nash, supra note 42, at 53-54.
180. See A. B. A. GUIDELINES FOR THE APPOINTMENT AND PERFORMANCE OF DEFENSE COUNSEL IN DEATH PENALTY CASES cmt. to Guideline 10.5 (rev. ed. 2003).
181. E.g., ARMSTRONG ET AL., supra note 61, at 17. In the most general terms, 'Triggers can come through any of the senses and include sounds, sights, tastes, and smells."
182. Id.
183. E.g., id. at 17-18: An anniversary date of a traumatic event can also bring back thoughts, feelings, and physical reactions related to the trauma. For instance, a veteran may experience an "anniversary reaction" or an increase in posttraumatic stress symptoms at Thanksgiving, as she recalls a mortar blast that happened on Thanksgiving Day, killing one of her buddies. Anniversary reactions can cause intense peaks in anxiety or depression and may occur even before [the Soldier] consciously remembers that a particular traumatic event even happened on that date.
184. Id. at 17.
185. HART, supra note 39, at 17.
186. Id. ("It will typically take an individual three and a half to four days before the adrenaline is exhausted within the body.").
187. Clinicians sometimes refer to this heightened state of arousal as a "wild ride" because it generates a physiological response that often leaves the client with continuous "strong urges to fight or flee, " and uncomfortable nervous shaking.
188. Id.
189. NEWHOUSE, supra note 45, at 19
190. E.g., SLONE & FRIEDMAN, supra note 43, at 164 ('Typical PTSD treatment usually involves assessment, [educating the patient about the disorder], and, depending on the severity and the particular set of symptoms, therapy, medication, or both.") ;
191. NEWHOUSE, supra note 45, at 223 ("Most conventional modes of treatment, including those used by the VA, involve a combination of group therapies, cognitive behavioral therapies, and/or medicines to realign the chemistry of the brain. ") ;
192. HART, supra note 39, at 76-79 (describing the effects of various medications and highlighting the fact that "[m]edication for combat PTSD is utilized because of changes in the biological functioning of the individual exposed to trauma").
193. U. S. DEP'T OF VETERANS AFFAIRS & DEP'T OF DEF., VA/DoD CLINICAL PRACTICE GUIDELINE FOR THE MANAGEMENT OF POST-TRAUMATIC STRESS (2004) [hereinafter VA/DoD PRACTICE GUIDELINE].
194. Id. at 1-18 (strongly recommending EMDR, PE, CPT, and Stress Inoculation).
195. E.g., William P. Nash & Dewleen G. Baker, Competing and Complementary Models of Combat Stress Injury, in COMBAT STRESS INJURY, supra note 42, at 65, 73 ("[Exposure] treatments all make use of controlled reexperiencing of traumatic cures both in imagination and in real life in order to facilitate desensitization and extinction of conditioned fear responses.").
196. Eg., Editorial, Virtual Reality Brings Therapy to PTSD Patients, U. S. Dep't of Def., MIL. HEALTH SYS., June 10, 2008, http:/www.health.mil/Press/ Release.aspx?ID=238 (relating the comments of Dr. Greg Reger, Clinical Psychologist, Telehealth and Technology Center of the Defense Center of Excellence, who states, "The standard-ofcare treatment for PTSD is exposure therapy").
197. Allison G. Harvey et al., Cognitive Behaviour Therapy for Posttraumatic Stress Disorder, 23 CLIN. PSYCHOL. REV. 501, 502 (2003).
198. Nash & Baker, supra note 129, at 73 ("In PE, for example, traumatized individuals are asked to record on audiotape the story of their traumatic experiences in detail and in the present tense. They are then asked to listen to these tapes on a daily basis while practicing relaxation techniques."). Exposure can be real, rather than imagined. The practice of "in vivo" exposure calls for patients to participate in an event that they had previously been avoiding. In one example, veterans who feared the presence of helicopters based on their combat experiences reduced these fears over time by riding in helicopter flights with the supervision of their therapists.
199. See generally Raymond M. Scurfield et al., An Evaluation of the Impact of "Helicopter Ride Therapy "for In-Patient Vietnam Veterans with War-Related PTSD, 157 MIL. MED. 67 (1992).
200. E.g., Edna B. Foa & Shawn P. Cabill, Matching Survivors to the Appropriate Modality, in TREATING TRAUMA SURVIVORS WITH PTSD 34, 53 (Von Rachel Yehuda ed., 2002).
201. See generally Rizzo et al., supra note 44. As of June 2009, "There [were] about 40 Virtual Iraq systems in Defense Department and Veterans affairs hospitals and clinics, " with the Air Force and Navy operating most of the active duty systems.
202. Geoff Ziezulewics, Military Uses Virtual Therapy to Help Troops Heal Wounds, STARS & STRIPES (Mideast ed.), June 29, 2009, at 3, available at http://www.stripes.com/article.asp?article=63509§ion=104.
203. E.g., Ziezulewics, supra note 134, at 2 (reproducing photographs from the University of Southern California's Institute of Creative Technologies).
204. E.g., id. at 4 (noting that during the use of the virtual simulations, "the smell of fire, diesel, cordite, body odor and burning rubber are also used to facilitate memory recall and emotional processing").
205. SLONE & FRIEDMAN, supra note 43, at 165 ("CBT involves working with your cognitions, or thoughts, to change your emotions, thoughts, and behaviors.").
206. See generally MICHAEL A. TOMPKINS, USING HOMEWORK IN PSYCHOTHERAPY: STRATEGIES, GUIDELINES, AND FORMS 1-6 (2004) (describing the nature of psychotherapy homework and its many benefits) ;
207. DAVID D. BURNS, THE FEELING GOOD HANDBOOK, at xxxiii-xxxvi (rev. ed. 1999) (describing how he and his patients are able to understand the application of psychological concepts at a personal level when they put pen to paper and provide individualized information).
208. E.g., DENNIS GREENBERGER & CHRISTINE A. PADESKY, MIND OVER MOOD: CHANGE HOW YOU FEEL BY CHANGING THE WAY YOU THINK 109 (1995) (describing the value of considering alternative and balanced thoughts and how consideration of such thoughts provides new insights and feelings).
209. MATTHEW MCKAY ET AL., TAKING CONTROL OF YOUR MOODS AND YOUR LIFE: A THOUGHTS AND FEELINGS WORKBOOK 18 (1997).
210. PATRICIA A. RESICK ET AL., COGNITIVE PROCESSING THERAPY VETERAN/MILITARY VERSION: THERAPISTS MANUAL 63 (Dept. Veterans Affairs 2007) [hereinafter CPT THERAPISTS MANUAL] (describing how the worksheets help patients to "see the connection between... thoughts, and feelings following events").
211. E.g., ARMSTRONG ET AL., supra note 61, at 17 (observing that "[b]eing around children who remind you of kids in the war zone" is a specific reminder "that may trigger responses for returning veterans").
212. E.g., id. at 101 (describing how Soldiers with PTSD often use "emotional reasoning, " in which they "reason things out based on how [they] feel").
213. E.g., MCKAY ET AL., supra note 140, at 42 (reproducing a completed "Thought Journal") ;
214. GREENBERGER & PADESKY, supra note 139, at 100-01 (same).
215. E.g., GREENBERGER & PADESKY, Supra note 139, at 100-01.
216. MCKAY ET AL., supra note 140, at 32 ("Summary"). These eight patterns represent most of the dysfunctional thoughts exhibited by patients, although they might go by different names. Elsewhere, for example, polarized thinking has been called "All-ornothing thinking" and "Magnifying" has been called "Overfocusing on the Negatives."
217. E.g., STEVEN TAYLOR, CLINICIAN'S GUIDE TO PTSD: A COGNITIVE BEHAVIORAL APPROACH 193 (2006) ("Handout 10.1, Cognitive Distortions Associated with PTSD").
218. ARMSTRONG ET AL., supra note 61, at 132.
219. Id.
220. Id. at 119.
221. Id.
222. E.g., Harvey et al., supra note 131, at 503 ("Cognitive restructuring involves teaching patients to identify and evaluate the evidence for negative automatic thoughts as well as helping patients to evaluate their beliefs about the trauma, the self, the world, and the future.").
223. VA/DoD PRACTICE GUIDELINE, supra note 127, at 1-21.
224. SLONE & FRIEDMAN, supra note 43, at 165 ("Cognitive Behavioral Therapy... has been shown to be the most effective treatment for PTSD. In fact, CBT has been designated the treatment of choice in all evidence-based clinical practice guidelines for the treatment of PTSD published to date.").
225. HART, supra note 39, at 30: Recent research has shown that when individuals are traumatized, there appears to be marked lateralization of activity in the right hemisphere. There is also a decrease in activation or stimulation to a part of the brain in the left hemisphere responsible for language... There appeared to be a decrease in oxygen utilized by this part of the brain in the left hemisphere during the activation of a traumatic memory.
226. E.g., Harvey et al., supra note 131, at 512 (discussing patients' visual "tracking" of the therapists movements while focusing attention on traumatic events) ;
227. Howard J. Lipke & Allan T. Botkin, Case Studies of Eye Movement Desensitization and Reprocessing (EMDR) with Chronic Post-Traumatic Stress Disorder, 29 PSYCHOTHERAPY 591, 591 (1992) : EMDR calls for the patient to visualize the most distressing moment of a traumatic incident and the concomitant physical distress while... repeating the [associated] negative self-statement.... [Next], the patient is asked to follow, with his or her eyes, the therapist's finger as it rapidly moves back and forth a distance of approximately 12 inches across the patient's field of vision approximately 12 inches from the face. Twelve to 24 back-and-forth eye movements are made at a rate of two complete cycles per second. When the movements are completed the patient is asked to "blank" the scene out of mind and take a deep breath.
228. Commander Mark C. Russell, Treating Combat-Related Stress Disorders: A Multiple Case Study Using Eye Movement Desensitization and Reprocessing (EMDR) with Battlefield Casualties from the Iraq War, 18 MIL. PSYCHOL. 1, 3 (2006).
229. HART, supra note 39, at 31.
230. Id.
231. Russell, supra note 156, at 3.
232. Id.
233. Id. at 8.
234. Id.
235. Id.
236. Id.
237. Id.
238. Id.
239. Id.
240. Id. at 9.
241. Id.
242. Id.
243. NEWHOUSE, supra note 45, at 247 (describing the experiences of Heather Kiyszak).
244. Id at 252 (describing Dr. Shapiro's theory).
245. E.g., Russell, supra note 156, at 2 (observing positive treatment recommendations from the International Society for Traumatic Stress Studies, the U. S. DVA/DoD, The American Psychiatric Association, and the Israeli National Counsel for Mental Health).
246. Regardless of whether a client is undergoing CPT, EMDR, or PE therapy, the recommended treatment lasts approximately twelve weeks.
247. E.g., Kent A. Corso et al., Helping Military Personnel and Recent Veterans Manage Stress Reactions, 31 J. MENTAL HEALTH COUNSELING 119, 119 (2009) (observing that "effective treatment protocols are rigorous and time-consuming-as much as 12 weeks of 60-90 minute sessions"). In line with this protocol, for example, the Army's CPT program consists of twelve sessions.
248. See generally CPT THERAPISTS MANUAL, supra note 141.
249. E.g., PORTNOY, supra note 107, at 19 & 158.
250. See generally Anthony Bertelli, Should Social Workers Engage in the Unauthorized Practice of Law, 8 B. U. PUB. INT. L. J. 15 (1998) (identifying inevitable legal overlap in the functions of mental health providers who treat low-income populations).
251. Veterans' treatment courts have recognized this overwhelming benefit and structured their programs accordingly. See supra Part II. C.
252. Jacqueline St. Joan, Building Bridges, Building Walls: Collaboration Between Lawyers and Social Workers in a Domestic Violence Clinic and Issues of Client Confidentiality, 7 CLIN. L. REV. 403, 430-31 (2001). The Army rule is no different.
253. See U. S. DEP'T OF ARMY REG. 608-18, THE ARMY FAMILY ADVOCACY PROGRAM app. G-4 (30 Oct. 2007) ("A military lawyer has no obligation to make a report of spouse or child abuse that comes to his or her attention as a result of privileged communication unless the communication clearly contemplates the commission of a future crime.").
254. St. Joan, supra note 178, at 440.
255. See also Paula Galowitz, Collaboration Between Lawyers and Social Workers: Re-Examining the Nature and Potential of the Relationship, 67 FORDHAM L. REV. 2123, 2147-53 (1999) (discussing various methods to remove impediments to collaboration between lawyers and social workers).
256. See MANUAL FOR COURTS-MARTIAL, UNITED STATES, R. C. M. 703 (d) (2008) (providing standards for the appointment of an expert consultant).
257. See generally Major Will A. Gunn, Supplementing the Defense Team: A Primer on Requesting and Obtaining Expert Assistance, 39 A. F. L. REV. 143 (1996) (providing practical guidance on how to meet R. C. M. 703 (d) 's requirements).
258. See, e.g., SLONE & FRIEDMAN, supra note 43, at 142 (discussing accessibility of Soldiers' medical records, especially relating to mental health treatments for PTSD). There are so many exceptions to the military's psychotherapist-patient privilege established by Military Rule of Evidence 513 that defense counsel have been cautioned not to expect protection of client communications with mental health providers.
259. E.g., Lieutenant Colonel R. Peter Masterton, The Military's Psychotherapist-Patient Privilege: Benefit or Bane for Military Accused?, ARMY LAW., Nov. 2001, at 21-22.
260. E.g., ABA COMMN. ON L. & AGING & AM. PSYCHOLOGICAL ASSN., ASSESSMENT OF OLDER ADULTS WITH DIMINISHED CAPACITY: A HANDBOOK FOR LAWYERS 3 (2005) (LEXIS Course No. SM054) (exploring various alternatives that will not compromise the attorney's role or violate the client's best interests).
261. E.g., Coleman, supra note 21, at 142 (identifying common limitations on multidisciplinary legal teams including coordination difficulties and "time pressure[s]").
262. See supra Part II. E.2 (reviewing key attributes of the A-B-C Worksheet). Similar collaboration between the attorney and clinician has been proposed by forensic psychologist Astrid Birgden, who envisions cross-disciplinary application of a psychological technique by an attorney and mental health professional.
263. Astrid Brigden, Dealing With the Resistant Criminal Client: A Psychologically-minded Strategy for More Effective Legal Counseling, 38 CRIM. L. BULL. 225, 237 (2002) ("A joint defense attorney and mental health professional strategy is proposed to maximize cooperation in the resistant client; the attorney applies motivational techniques [during three stages of the counseling process] while the mental health professional applies cognitive behavioral intervention and relapse prevention at the [other two additional] stages."). In this joint model, "[t]echniques previously designed for the mental health professional regarding motivating change and techniques for the defense attorney regarding enhanced decisionmaking are combined."
264. Id. at 238-39 & 238 tbl.4 (depicting attorney and mental health professionals' respective roles).
265. E.g., Christina A. Zawisza & Adela Beckerman, Two Heads are Better Than One: The Case-Based Rationale for Dual Disciplinary Teaching in Child Advocacy Clinics, 7 FL. COASTAL L. REV. 631, 679-80 (2006) (identifying several crucial ways social workers and other mental health professionals can assist attorneys in meeting their duties, including overcoming barriers to effective communication during client counseling) ;
266. Seamone, supra note 1 (addressing enhanced counseling methods that permit attorneys to effectively represent servicemembers with PTSD).
267. Few can doubt the fundamental proposition that "[a]ll attorneys have an ultimate responsibility to act in the best interests of their clients." Christopher J. Mealing & Donald Stepner, Court Annexed Arbitration-The Northern Kentucky Experience, 81 K. Y. L. J. 1155, 1163 (1993).
268. See, e.g., Friedman v. Comm'r of Pub. Safety, 473 N. W.2d 828, 834-35 (Minn. 1991) (addressing the attorney's obligation to maximize an alcoholic client's well-being by exploring treatment options for his condition).
269. Shetty, supra note 9, at 566-67.
270. See supra Part II (discussing the prevalence of PTSD in combat veterans and the fact that a majority of veterans will not have this condition). The population of veterans facing legal problems will likely contain a higher percentage of veterans with PTSD than the entire veteran population.
271. Id.
272. For example, the combination of a deployment patch and indicators of service in the Explosive Ordinance Disposal military occupational specialty would suggest, at the least, that the servicemember has had increased exposure to traumatic combat events. The same can be said of flight surgeons or others who are charged with treating combat injuries.
273. E.g., ARMSTRONG ET AL., supra note 61, at 142 (describing common signals, such as problems organizing information).
274. E.g., MODEL RULES OF PROF'L CONDUCT cmt. to R. 1.1 (2006) ("A lawyer can provide adequate representation in a wholly novel field through necessary study or consultation with a lawyer of established competence in the field in question. ") ;
275. AR 27-26, supra note 73, cmt. to R. 1.1 (same). In cases involving the representation of children, for example, courts have imposed supplemental rules requiring attorneys to become conversant in psychology and the clinical assessment of their clients.
276. Zawisza & Beckerman, supra note 185, at 679.
277. See supra Part II. C.
278. E.g., Steve Lash, Require "DNA 101 "for Lawyers, Justices Urged, CHI. DAILY LAW BULL., Oct. 14, 2005, at 1 (reporting the efforts of the American Bar Association to "urge[] the justices to require that defense attorneys either understand DNA and other biological evidence or consult with experts" to prevent wrongful convictions) ;
279. Myrna S. Raeder, Cost-Benefit Analysis, Unintended Consequences, and Evidentiary Policy: A Critique and Rethinking of the Application of a Single Set of Evidence Rules to Civil and Criminal Cases, 19 CARDOZO L. REV. 1585, 1589 (1998) (identifying a pervasive "math phobia" in the legal profession and observing that "the discomfort some feel with the Daubert standard (requiring the court to determine the reliability of new technological advances) stems from the inability of many trial lawyers and judges to understand hard science").
280. E.g., Gregory W. O'Reilly & Allan Sincox, Forensic DNA Case Evaluation and Litigation, 28 LITIG. 43, 43 (2001) (noting that "the two most important skills necessary in trying DNA cases are to learn the science well enough that you can not only crossexamine a[n]... expert but also explain the technology to a lay jury").
281. Joelle Anne Moreno, Beyond the Polemic Against Junk Science: Navigating the Oceans that Divide Science and Law with Justice Breyer at the Helm, 81 B. U. L. REV. 1033, 1081 (2001) ("Legal scholars and practitioners who must assess the quality of scientific evidence must also acquire a basic understanding of core statistical concepts."). Professor Moreno identifies the need for scientific sophistication by identifying several common errors that attorneys must correct from the misuse of terminology to the misunderstanding of scientific methodology.
282. Id. at 1064-81.