language impairments: what’s a lawyer to do??

Language Impairments:What’s a lawyer to do??

Raising the issue• Language related deficits extend beyond 15 (hereinafter **)

• Competency

• Motions to suppress– Miranda– Voluntariness– False Confession– Consent

• Guilty pleas

• Lack of intent or knowledge as a defense

• Mitigation/Culpability

• Revocations

• Juvenile Waiver/Transfer

• Sexual Predator Commitments (failure to comply with treatment)

Competency

• Ability to assist counsel is the main event and is not just an exchange of information

• Competency requires ability to effectively communicate with counsel. Cooper v. Oklahoma

• **• IQ insufficient measure• Talking slowly doesn’t fix it; neither does repeating it• Request language assessments

– SLP/Psychologist– Expert testimony

Confessions: Miranda

• Vocabulary• Ability to follow complex sentences• Abstract concepts• Fund of Knowledge– Even if they’ve seen it on TV

• Auditory Processing• Follow directions• Likely to say they understand (they don’t want to look

stupid)• **

Confessions: Suggestibility & Reliability

• **• More suggestible• More likely to confess• More likely to confess to something they didn’t do• Narrative deficits – Incomplete or misleading statements(“he got in my

face so I shot him”)• Pragmatic deficits (how police interpret the

suspect and his statement)

Guilty pleas

• Massive amounts of information– Risks– Benefits– Elements– Collateral consequences

• Difficulties with decision making• Time limits on accepting an offer

Post-dispositional issues• Increased likelihood of disciplinary problems

(Clarke)• Inability to successfully deal with cookie-cutter

verbal based therapies • Many literacy programs assume intact language

system• Difficulties with restorative justice• Compliance with supervision (with a long list of

rules…)• ADA??

How Language Impairments Impair the Attorney-Client Relationship

• Working within the attorney-client relationship itself

• Narrative skills• Understanding the legal process• Decision Making• Empathy & Trust

Recognizing LI

• Previously unidentified• Perfect world: routine language assessments• Receptive, processing, & expressive skills– SLP

• Special assessment for pragmatic deficiencies• SLP as advisor and “interpreter”• FAQ: Where do I find an SLP?

When Money Is An Object:Look for signs

• Forgetting instructions• Confusion with non-literal language• Talking a lot but saying little• Not asking questions• Not answering questions• Seeming “difficult”• “He got in my face so I shot him”• Remember - **

External clues

• School records esp. IEPs• Verbal IQ (with a word of caution)• Reading scores• Associated disorders or conditions• Disciplinary issues– Behavior Problem?

Improving Attorney-Client Communication

• Beware of your non-verbal signals• Timelessness• 3 1hour meetings > 1 3hour meeting• Notes as props, not the main event• Atty-client conversations as act of double

consciousness– What is the client doing/saying?– What am I doing/saying??

Getting beyond “he got in my face so I shot him”

• Lawyer as “archeologist looking for shards”• Allow story to emerge– Assume multiple discussions

• Visuals & Role Play• Targeted discussions– When you say ‘he got in your face,’ show me

exactly what he did• Walk client back for context• Uncovering emotional content

Getting beyond law talk• Unpack the concepts and language• Put concepts in context of client’s case

– Reframe• Visuals and Role Play• Shorter, less complex sentences• Explain expectations, perceptions, and rules of engagement• Assess understanding (without it looking like a test)• Beware TMI

– What does the client need to know NOW?– Chunk information

• Quit talking like a lawyer– You do not really understand something unless you can explain it to your grandmother. --- Albert

Einstein

Do you understand?

Educating judges & prosecutors

• Easy fit with Daubert/Frye• Not understanding rules vs. non-compliance• Reconsider the “bad attitude” (Pragmatic deficits)• Reconsider “he got in my face so I shot him”• Reconsider poor conduct record• Reconsider poor compliance with

treatment/supervision (“you were given a chance”)• Getting around “he looks like he understands”• Previously unidentified• **

More trouble spots

• Client testimony– Questioning form– Credibility– Impeachment– Expert to explain?

• Client cooperation/Acceptance of responsibility• Remorse• Presentence interview• Limited time plea offers