Clients with mental disabilities may provide contradictory, unclear or insufficient information. This is no different to clients without mental disabilities. Interviewing clients with mental disabilities requires the lawyer to have good interviewing skills and to examine the evidence in the same way as for other cases. Statements by the client which the lawyer thinks are incredible or irrational do not necessarily negate their credibility. Lawyers should deploy good interview techniques: establish trust, cross-reference information, and repeat questions in different ways. Clients who have been in institutions or have been abused may find it extremely difficult to relive and explain their experiences and may confuse facts. These challenges can undermine the strategic and individual success of the case unless the lawyer identifies and addresses them.
A human rights-based approach to lawyering with people with mental disabilities
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Good
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Avoid
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- Speak directly to the client
- Avoid jargon
- Ask one question at a time, and allow the client time to answer
- Give the client your full, undivided and uninterrupted attention
- Use standard legal interview techniques to evaluate all statements and evidence
- Listen to the client: they are the experts on their own situation
- Recognise that all experts report from their professional perspectives
- Make the environment comfortable for the client
- Brief supporters that their role is to support communication and not to speak on behalf of the client
- Identify supports, which the client chooses when considering remedies
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- Directing questions/comments to the client’s guardian or support person
- Dismissing the client’s concerns because some of her/his statements are unbelievable or nonsensical
- Relying primarily on the opinions of experts, including medical experts
- Using Latin and long sentences
- Asking multiple questions in one sentence
- Interviewing clients in front of staff in institutions
- Using abstract concepts (e.g. ‘rights’) without explaining concrete situations
- Long periods of interviewing without taking breaks
- Answering phone calls during interviews
- Appearing too friendly or familiar with staff in institutions when meeting the client
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