Document Type

Article

Publication Date

2016

Abstract

Litigants with mental disabilities are taken less seriously by their own lawyers, trivialized by opposing counsel, and disparaged by judges. This is largely a result of “sanism,” an irrational prejudice of the same quality and character of other irrational prejudices such as racism, sexism or homophobia. Recognizing and combatting sanism creates extra burdens on lawyers who do seek to provide effective counsel for this population. Such lawyers need special tools to combat sanism, and we believe that lawyering skills rooted in therapeutic jurisprudence provide the best foundation through which to create a positive psychology of persuasion in this representation. Our presentation will focus on the use of therapeutic jurisprudence to combat sanism and its use as a persuasive tool in the legal system.

Therapeutic jurisprudence (TJ) asks us to look at law as it actually impacts people’s lives and focuses on the law’s influence on emotional life and psychological well-being. The ultimate aim of TJ is to determine whether legal rules and procedures or lawyer roles can or should be reshaped to enhance their therapeutic potential while not subordinating due process principles. TJ’s aim is to use the law to empower individuals, enhance rights, and promote well-being.

It is our belief that sanism can be combatted. First, we must recognize its power to influence court proceedings and attorney-client interactions. Then we must educate members of the legal system about this problematic and dangerous way of thinking. Finally, we must implement, using TJ, a set of practices that not only combats dangerous sanist thinking, but also teaches attorneys how to effectively persuade judges and jurors to look beyond the mental disability of their client.

In this paper, we first discuss the role and process conflicts that inevitably arise when lawyers represent persons with mental disabilities. Next, we discuss the meaning of sanism, and how sanism dominates the entire representational process in such cases. After that, we discuss how the lawyer-client relationship is tainted by these conflicts and the poison of sanism. We subsequently discuss the meaning of therapeutic jurisprudence, and finally contextualize all of what will be saying with the meaning on psychology of persuasion, especially as it relates to the concept of validation.

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