I. Posttraumatic Stress Disorder

Posttraumatic Stress Disorder (PTSD), once called shell shock or battle fatigue, is a mental health problem that can occur following the direct experience or witnessing of life- threatening events such as military combat, natural disasters, terrorist attacks, serious accidents, or violent personal assaults. PTSD is a medically recognized anxiety disorder that occurs in normal individuals under extremely stressful conditions. Most people who experience a traumatic event will have reactions that may include shock, anger, nervousness, fear, and even guilt. These reactions are common and for most people go away over time. People who suffer from PTSD often relive the experience over and over again through a range of symptoms (e.g., nightmares and uncontrollable thoughts, difficulty sleeping, and feeling detached or estranged from other people), and these symptoms can be severe enough and can last long enough to significantly affect the person’s quality of life and ability to function (Veterans Healthcare Administration, 2011; United States Department of Veteran Affairs, n.d.).

For individuals suffering from PTSD, the area of the brain that processes emotions is also more likely to be triggered by stimuli, regardless of whether the stimulus has anything to do with the original trauma. These biologically based body-changes that occur with PTSD help explain why a veteran might react to noises differently, such as fireworks or a helicopter flying overhead or certain odors, textures, climates, and situations. As a result of these PTSD-related biological changes, the ability to tell the difference between a real threat and a perceived threat can be impaired (National Alliance of Mental Illness [NAMI], 2011).

Signs and Symptoms
Signs and symptoms of PTSD occur most frequently within 3 months of the traumatic experience but can often be delayed for years. The severity and duration of PTSD can vary greatly among people but the symptoms can usually fit into three main categories including:

Reliving (Re-experiencing):
• Reliving the ordeal through thoughts and memories of the trauma.
• Flashbacks, hallucinations, and nightmares.
• Physical reactions to triggers that symbolize or resemble the event (NAMI, 2011).

Avoiding (Feeling numb, Hypoarousal):
• Avoiding people, places, thoughts, or situations that may remind him/her of the trauma.
• Feelings of detachment and isolation from friends and family, as well as a loss of interest in things the person once enjoyed.
• Difficulty thinking about the long-term future. Sometimes this is expressed in an inability to plan for the future or risk-taking because the individual may not see themselves living a full lifespan (NAMI, 2011).

Increased Arousal (Hyperarousal):
• Includes excessive emotions; problems relating to others, including feeling or showing affection; difficulty falling or staying asleep; irritability; outbursts of anger; difficulty concentrating; and being “jumpy” or easily startled.
• The person may also suffer physical symptoms, such as increased blood pressure and heart rate, rapid breathing, muscle tension, nausea, and diarrhea (WebMD, 2012).

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I. Introduction Post Traumatic Stress Syndrome

Post Traumatic Stress Disorder (PTSD) is a stress and anxiety condition that results from exposure to an overwhelming traumatic event combined with feelings of utter helplessness ( self-hatred.) .1 At the most general level, PTSD exists when the trauma resurfaces over time in intrusive ways causing disruption in a person’s thoughts and behaviors.

(A response to a triggering event causes a physiological response in which “adrenaline . . . becomes a neurotransmitter which overrides the decision making and executive processes of [the] cerebral cortex, or
smart brain.”122 While it is possible to decrease a response in the beginning stages using relaxation techniques, the lack of effective and early intervention usually leads to a period of heightened arousal that
lasts between three-and-a-half to four days.123 In such a state, concentration and communication become impaired and intrusive thoughts increase.1249(2009] ATTORNEY AS PTSD FIRST-RESPONDER 169))

(In the most general terms, “Triggers can come through any of the senses and include sounds, sights, tastes, and smells.” Id.)

(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.)

(Whether an undiagnosed client’s condition resulted from Delayed Onset PTSD, which was dormant for months before its symptoms surfaced,14 or the client’s intentional efforts to mask her symptoms in an effort to appear strong or loyal (uncommon access to the client’s decision processes, personal history, and behavior, a combination of which can easily reveal PTSD symptoms)

(Many attorneys may not desire PTSD first responder status because the title implies a responsibility to “respond” to matters normally in the domain of licensed clinicians.18 Even for those few attorneys who do litigate matters facially related to PTSD, such as in the defense to a criminal charge or efforts to obtain disability benefits, 19 the condition is normally addressed solely through expert witnesses with the responsibility of diagnosis falling exclusively on the shoulders of the trained clinician)

(The resulting lack of concern for or knowledge of the effects of this disorder create a substantial risk that the attorney will be misled into believing that a client with PTSD either does not have the disorder or is not impaired by it.27 Through this limited frame, even a well-meaning attorney can unknowingly contribute to the aggravation of a client’s condition while believing she has fully satisfied her professional responsibilities.28 In fact, attorneys who fail to acknowledge their clients’ PTSD symptoms or counter the effects of stress responses can cause harm beyond their clients’ legal cause. Chief among other potential harms, the compounded stress of litigation alone can increase the risk of suicidal behavior.29)

(Even a civilian who has never deployed to combat will face harmful stress responses to litigation, which can sometimes last for months, causing lack of sleep, depression, and other undesirable symptoms.34 For a
population already susceptible to taking their own lives due to PTSD, clients who suffer from PTSD will face heightened stress and anxiety.)

(Posttraumatic Stress Disorder is a condition caused by an over whelming traumatic event that “distressingly recurs” in various manifestations leading to impairment lasting more than a month.38 Although the Text Revision of the Diagnostic and Statistical Manual of Mental Disorders IV (DSM-IV-TR) recognizes PTSD as a “stress disorder,” the condition “contains the components of both stress and anxiety.”39 Anxiety is most apparent in the “chronic feeling of dread, apprehension, and hypervigilance” experienced by victims of PTSD.40)

(43 While “the symptoms of PTSD are part of the normal reaction to trauma,”44 the symptoms translate into Acute Stress Disorder when experienced for four weeks, Acute PTSD when they last beyond four weeks, and Chronic PTSD when they persist beyond three months.45)

(When left untreated, PTSD can lead veterans to behave irresponsibly, impulsively, violently, and self-destructively, which has created significant concern for their own well-being and the well-being of others.)

(The link between PTSD and criminal activity is also well documented.64 Commonly, veterans with the disorder knowingly participate in dangerous behavior in attempts to recreate the rush of combat.65 This could include anything from driving at extremely fast speeds,66 to provoking road rage,67 and starting fist-fights.68 While the use of illegal narcotics can also supply a desired adrenaline rush that simulates combat, drug abuse is also common among those who desire to escape feelings of guilt or shame over losses they suffered in combat.69 Ultimately, criminal activity can result from (1) Overreaction to danger cues; (2) Behavioral re-experiencing while in a dissociative state; (3) Stimulation-seeking behavior to overcome numbness and emotional nonreactivity; and (4) Engaging in dangerous behavior to alleviate survivor guilt.70 The above “flashback” scenario in number two, which is commonly cited in legal publications, is quite possible71 but hardly demonstrates all possible criminal manifestations of PTSD. For many of these reasons, “military trial practitioners are likely to encounter PTSD in some fashion in future trials involving combat veterans.”)

(Victims experiencing PTSD may have extreme difficulty concentrating, feel constantly on guard or jumpy, and experience unpredictable outbursts of rage.”).

(“Forensic stress disorder” (FSD), which contains many of the same diagnostic criteria as PTSD,99 manifests symptoms that include obsessive thinking, panic attacks, fear, and “intrusive thoughts of the legal case [that] can invade daily activities and disrupt evening dreams.”100 However, the symptoms of FSD normally persist six months or less following the conclusion of the legal action.101 Importantly, the client who is already suffering from PTSD prior to litigation is far more likely to experience acute stress reactions to litigation, which can “lead to an inability to manage the uncertainty and frustration of the legal process.”102)

(The avoidance of the triggers by the defendant who has self-inflicted PTSD)

(Additionally, the accused is forced throughout the pretrial and trial stages of a criminal prosecution to relive, often as a passive spectator, the traumatic experience of the crime through the testimony of witnesses, photographs, exhibits, and legal arguments. All of these circumstances, routine to the criminal trial
process, have the potential to stimulate and aggravate the accused’s PTSD.104)

(“Criminal and similar kinds of legal proceedings are intensely stressful and can create feelings of fear, anxiety, and depression.”).

(101 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.”).

(102 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.”).
(Among immigrants applying for asylum or victims of domestic violence, for example, it is valuable to assist clients in regaining a sense of lost control)
(Lack of trust of others and self-destructive tendencies, which are common characteristics of PTSD,)

(Since self-abuse is common among trauma victims, you may see it acted out in the form of settlement suggestions that are self-defeating or self-destructive behaviors such as not showing up for court appearances.”113 Attorneys must be prepared to explore aspects of the client’s legal decision-making process— objectives, prioritization of issues, and the weighing and balancing of decisions—to identify the presence of otherwise unseen distorting forces. In the strategic vernacular, the attorney must endeavor to get inside the client’s defective OODA loop, and counter it with in a way that permits effective evaluation of legal options.114 Too often, combat veterans who experience a traumatic event suffer from shattered beliefs about the world around them.11)

(recognizing that traumatic stress has the ability to “shatter necessary and deeply held beliefs”); 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”).

1. Exposure Therapy is based on the theory that a patient with PTSD will benefit from re-experiencing trauma in a controlled environment where his or her fears can be explored with the guidance of a nonthreatening clinician.129 In a very real way, lawyers engage in exposure therapy when they take reluctant clients or witnesses to visit a courtroom and sit in the witness chair to aid in easing the anxiety of providing live testimony. Some clinicians have hailed exposure therapy as the most effective among the treatment choices.130 Prolonged Exposure (PE) is a popular and effective method in which patients “vividly imagine” traumatic events, by speaking or writing about them, often in the first-person, present tense format, with a focus on “the most distressing aspects.”131 Patients then revisit their accounts, which are either written or recorded, and observe subtle differences in the way the event is recounted over time.132 By revisiting the event with the guidance of the clinician, the patient is able to develop more accurate statements or images over time. Studies reveal that PE can have as much as a 70% success rate in reducing PTSD symptoms after nine sessions of treatment.133 Attorneys should seek to learn whether a client is receiving exposure therapy treatment at the time of legal counseling. By synchronizing calendars with the clinician, the attorney can avoid scheduling meetings close in time to the days when the client will revisit vivid traumatic experiences.

Another form of clinician-supervised exposure therapy includes:

Virtual Reality (VR) Therapy, which exposes veterans to computersimulated images that resemble their own traumatic experience.134 Virtual environments commonly depict streets, homes, and scenes encountered in Iraq.135 In some pilot programs, clinicians can reproduce smells common to combat environments and other effects that make the experience extremely realistic.136 Virtual Reality programs are not yet mainstream, but attorneys in the near future may represent clients undergoing PE or VR clinical trials during the course of the representation.

2. Cognitive Behavior Therapy (CBT) involves clinical exploration of the link between the client’s distorted thoughts and his maladaptive behavior.137 During CBT, a therapist helps the client explore these links by making the client complete charts and other written assignments.138 133 E. The goal is to assist the client in challenging faulty assumptions or beliefs and to permit the client to adopt corrected beliefs.139 Scholars describe a “feedback loop” that explains how unchecked thoughts can result in ongoing impairments: In the case of painful feelings, a negative feedback loop becomes an “event,” the subject of further thoughts, which produce more painful feelings, which become a larger event inspiring more negative thoughts, and so on. The loop continues until you work yourself into a rage, an anxiety attack, or a deep depression.140 Cognitive Behavior Therapy practitioners use a common three column “A-B-C Worksheet” to identify the interrelationship of thoughts, situations, and feelings.141

(PTSD victems often experience emotions first, without seriously considering their thoughts,143 )

Specialist Melvin’s thought above (“These kids have an IED or this is an ambush,”) can represent three of eight types of distorted thinking— “overgeneralization,” “catastrophizing,” or “magnifying”—which are defined in Figure 2, below.146

Fig. 2. Eight Forms of Distorted Thinking

Distorted thoughts commonly associated with PTSD, and which could influence legal representation, include the following:

1. Filtering: You focus on the negative details while ignoring all the positive aspects of a situation.
2. Polarized Thinking: Things are black or white, good or bad. You have to be perfect or you’re a failure. There’s no middle ground, no room for mistakes.
3. Overgeneralization: You reach a general conclusion based on a single incident or piece of evidence. You exaggerate the frequency of problems and use negative global labels.
4. Mind Reading: Without their saying so, you know what people are feeling and why they act the way they do. In particular, you have certain knowledge of how people think and feel about you.
5. Catastrophizing: You expect, even visualize, disaster. You notice or hear about a problem and start asking, “What if?” What if tragedy strikes? What if it happens to you?
6. Magnifying: You exaggerate the degree or intensity of a problem. You turn up the volume on anything bad, making it loud, large, and overwhelming.
7. Personalization: You assume that everything people do or say is some kind of
reaction to you. You also compare yourself to others, trying to determine who is smarter, more competent, better looking, and so on.
8. Shoulds: You have a list of ironclad rules about how you and other people should act. People who break the rules anger you, and you feel guilty when you violate the rules.

Distorted thoughts commonly associated with PTSD, and which could influence legal representation, include the following:

• “It’s not worth my time and energy to plan for the future because I may be redeployed”147

• “I never think beyond today, much less tomorrow or the next day. I won’t live much longer.”148

• “Grieving means I’m weak.”149

• “If I move on with my life, I will stop thinking about those I lost.”

150 With knowledge of such limitations, the client can conduct further self analysis, acting as a personal scientist, to substitute dysfunctional thoughts with more productive ones. 151 The process can work equally well in permitting the client to evaluate errors in the interpretation of legal advice

146 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,

Captain Evan R. Seamone

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Loss of military benefits and medical coverage and care and other (veterans benefits)

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”); 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.”); 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.
29 Savitsky, supra note 12, at 333 (“When mental health issues are not addressed, the
results may be deadly.”); 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.”). See
generally Cvetanovich & Reynolds, supra note 28, at 620 (“Numerous studies have
linked suicide to PTSD and other mental illnesses.”).
30 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”).
31 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”), 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); 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
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