Tuesday, May 23, 2006

Explaining the Law to Lawyers

It used to be rather amusing, when some attorney acting out of specialty or out of state advocating on behalf of one of my patients would insist that the hospital should take a particular action – usually to let the person go. “But he’s being held there against his will.” Yes, almost all our patients come here against their will; this is not a new concept to me after thirty years. “She has a right to hire whatever attorney she wants. She doesn’t have to accept counsel appointed by the state.” Yes, that’s true. But if it were me, I’d prefer the court-appointed attorneys who can do these hearings in their sleep. “He has the right to refuse treatment.” Yes, and we then have the right to hold him here as a danger to society. What’s your point, counselor?

I am certainly much their inferior in general questions of law. Rules of evidence? I'm guessing. Required procedure for submission? No clue. But mental health law in NH? Unless you're one of a dozen attorneys in the state (and I know you're not, clown), don't try to explain it to me. It's how I earn my daily bread.

Even I was never quite this snippy in my answers, though I was often tempted. Yet this mean pleasure does get old after awhile. New probable cause judges try the same tired things, which we let go for a few times if it doesn’t affect the patient, dropping hints or trying to explain. Very occasionally, we have to become more blunt. “That interpretation has been tried. It was overturned in 1991 in the Taylor decision.” It’s not that these legal minds are trying to sell bad ideas. These are usually reasonable approaches on first look. But laws overlap and contradict each other, and have to be sorted out on appeal. We shouldn’t have to keep going over it, unless someone’s got a new angle.

An unfair rule of thumb: the more angry and intimidating an attorney becomes about a broad principle, the less likely it is that s/he will prove correct in the end. (A friend who is a hearings officer tells me that the phrase “fundamental fairness” usually telegraphs that the attorney has no real case according to the statute.) The attorney can often make political points along the way, in both local and national cases. Institutions, corporations, or powerful individuals can be accused and made to look guilty. When the case is lost, accusers can complain that the defendants were let off “on a technicality,” or it can be hinted that they were favored in some unfair way. Such things happen, of course, especially if you’re a Kennedy in Massachusetts. But it’s good to have your antennae up and twitching. Sometimes the technicality is that there’s no hard evidence, and what you read in the papers was less than half the story.

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