June 01, 2018

Not Alone: Sensitivity to Veterans’ Mental Health through Mindful Legal Representation

Leonard Simmons, Seward & Kissel, New York, NY

In many ways, the process to obtain veterans benefits is at odds with the health and well-being of the servicemembers it is designed to support.  Based on their service, veterans may be entitled to healthcare, rehabilitation, and disability compensation benefits.1 However, the application process to obtain these health-related benefits can itself be painful.  Veterans must navigate a complex administrative regime and submit claims requiring a combination of expert-level medical and legal analysis, often impeded by the same disabilities that they are seeking healthcare and compensation for.  For example, veterans seeking compensation for post-traumatic stress disorder (PTSD) are required to prove that their condition has a legally cognizable nexus to their service and that their diagnosis conforms to the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-V).2 Although health laws are beginning to ease the burden on such veterans, many remain unable to prepare these filings without the assistance of counsel or private physicians.3

More than four million veterans receive compensation from the Department of Veterans Affairs (VA) for disabilities connected to their service, with nearly one million receiving compensation for PTSD.4  Veterans applying for benefits will face administrative delays lasting years, with the appeals process delaying resolution even further.5 As disabled veterans face these mounting obstacles, attorneys have an opportunity to make a significant difference in the lives of these individuals through more than the provision of legal advice and representation.  Now, based on recent research, there is reason to believe that advocating on behalf of veterans can assist with their physical and mental health along with their legal concerns.

An Opportunity for Advocates 

A 2017 study co-authored by the VA and Jack Tsai, a professor of psychiatry at the Yale School of Medicine has found that veterans’ mental health improved when they had access to free legal services, leading to reduced PTSD symptoms and less money spent on abused substances.The study, which tracked 950 veterans in Connecticut and New York City over the course of three years, demonstrates the opportunity that advocates have to positively impact the lives of their veteran clients.7  United States Senator Richard Blumenthal (D-CT) observed that “[f]or vulnerable veterans, access to expert legal services within the VA could mean the difference between a safe, stable home and homelessness -- a reality underscored in this important study.”8 Although the news of these benefits is cause for celebration, it highlights a further opportunity for veterans’ attorneys to be especially mindful of client mental health needs.

Veterans law organizations across the country provide cultural competency training to their attorneys.9 The covered topics include everything from military terminology and values to the impact of specific disabilities on veterans.10 Yet there remains a further subtlety within the practice that underlies every client interaction.  As advocates, attorneys have a responsibility to obtain a broad range of information from their clients to effectively represent them.  However, veterans’ law attorneys are faced with the countervailing consideration of the client’s well-being as they relay such information.  Veterans with disabilities including anxiety, PTSD or disabilities caused by military sexual trauma (MST) may be uncomfortable speaking with their attorneys, especially if they must relay information relating to traumatic experiences which risks exacerbating their condition.

As the VA study illustrates, access to counsel can provide benefits beyond the purely legal.11 Although members of the general population may fare better with free legal services provided by mindful attorneys, veterans’ mental health in particular has come to the forefront as a national concern.  This finding offers the first evidence of a link between legal services and the mental health of this population, and presents a special opportunity for attorneys to bring mindfulness and compassion to each client interaction.  Mindfulness offers attorneys a series of practices which allow them to hone their focus and bring their attention into the present moment in a way which can lead to a meaningfully different experience for the client.  As attorneys bring newfound attention to their interactions, they may observe specific client sensitivities, allowing them to more tactfully guide conversations, or alerting them that a break is needed before the conversations continue.  Additionally, cultivating this attention may ease client discomfort to the extent that greater focus leads to more compassionate and understanding responses from the attorney. 

The benefits from mindfulness practice have the potential to reach all aspects of legal practice, and assist the attorney as well as the client.  United States Supreme Court Justice Stephen Breyer has noted that “[T]he practice of law is like attempting to drink water from a fire hose.  And if you are under stress, meditation – or whatever you choose to call it – helps.  Very often I find myself in circumstances that may be considered stressful . . . I sit for fifteen minutes and perhaps another fifteen minutes later.  Doing this makes me feel more peaceful, focused, and better able to do my work.”12

An Introduction to Mindfulness

Justice Breyer is not the only legal figure to recognize the benefits of mindfulness practice.  As part of a growing trend, bar associations across the nation are adopting mindfulness programs, law firms are introducing mindfulness to their employees, and law schools are offering mindfulness programs to students.13  For example, the 2017 National Association for Law Placement conference agenda featured multiple programs to teach mindfulness to attorneys, and the Mindfulness in Law Society offers to connect law students with the resources necessary to organize weekly mindfulness programs.14

Lawyers who are interested in mindfulness can begin to practice on their own at any time.  A foundational practice of mindfulness invites the individual to draw attention to his or her breath.15 The breath is a common focus point for attention because it is a bodily sensation people can turn to at any time.  At any given moment, there is a slight cooling sensation on the inhale, and a slightly warmer sensation on the exhale.  A person can rest one’s attention on those sensations and observe the natural breathing of the body, without trying to control it.16

The mind is active, and inevitably thoughts arise and distract from one’s focus on the sensations of the breath.  Once a person realizes that he or she has become distracted from focusing on the breath, he or she can gently and non-judgmentally return his or her focus to the sensation of the breath.  Becoming distracted does not indicate failure or an inability to practice mindfulness.  To the contrary, distraction is a natural part of the mindfulness practice.  The purpose of this practice is to notice distraction and bring attention back to the present moment, resuming observation of the breath.  This process of returning to the breath can be conceptualized as training the mind’s “mindfulness muscle.”  The longer an individual practices, the faster he or she may notice distractions, and the easier it becomes to remain in the present moment.  This simple exercise of watching the breath can make a measurable difference in attorneys’ careers and their quality of life with practice of as little as 12 minutes per day.17

Sensitivity to Mental Health in Practice

There are numerous ways to weave mindfulness into law practice, and many client populations would be well-served by an attorney versed in mindfulness practice.  These skills may be especially valuable in practices involving vulnerable clients, such as in veterans’ law where clients with PTSD or other disabilities must communicate with their attorneys regarding traumatic events underlying their disabilities.  For example, consider an initial client meeting with a veteran seeking compensation and vocational rehabilitation based on mental health disabilities related to the veteran’s period of service.  The attorney might engage in a short breathing mindfulness practice before the meeting, and set a personal objective to complete the interview in a way which minimizes the client’s suffering.  Although lawyers are trained to be inquisitive, the constant nature of questions which arise in the mind while listening to others can be unhelpful.  This barrage of questions may be self-defeating when faced with a client who is sharing traumatic information for the first time, an experience which can leave the client feeling frightened and vulnerable. 

Similar to the breathing practice, attention can be placed on a specific object, in this case, the veteran and his or her story.  Attorneys need not ignore the questions that arise in the mind during the interview, just as thoughts should not be cast out during the breathing practice.  Instead, attorneys can notice the thoughts and gently bring the attention back to the client.  Developing this mental response can have numerous effects.  First, the client may notice that the attorney is paying special attention and may feel more comfortable opening up and discussing important details.  Second, the attorney may notice subtle intonations or body language which alert the attorney to be especially careful around certain subjects, or to suggest a break so that the client can collect his or her thoughts.

Attorneys can also benefit from being mindful of the effects of their language on client behavior.  It can be difficult to convey compassion when advising clients on administrative processes, which can be seen as cold and detached.  Language which emphasizes the team nature of the endeavor can be helpful in this respect.  It should be emphasized that the veteran is at least as important as the advocate in the claims process, and that the best plan for success requires ongoing collaboration.  For each veteran, there will be unique challenges in combining effective advocacy with sensitivity to trauma.  Mindfulness offers attorneys the potential to remain present in a way that allows them to meet each challenge with an appropriate response.

Conclusion

An understanding of and sensitivity to client needs are core components of legal success and professionalism.  This is particularly salient in the context of veterans’ law, where research has demonstrated that access to free legal representation reduces the symptomology of PTSD and substance abuse.  These findings should provide inspiration to take veterans advocacy to the next level: identifying emotional sensitivities and practicing mindfulness in a way that allows attorneys to respond to those sensitivities in a compassionate way.  By practicing to cultivate a focused sense of attention in the moment, attorneys can attend to veterans’ painful experiences and transform the relationship to one based on support and collaboration.  

1 The VA rates service-connected disabilities on a scale from 0-100% using 10% increments.  Service connection may be established by demonstrating a direct connection to an in-service injury (38 C.F.R. §§ 3.303-3.305), aggravation of a pre-existing condition (§§ 3.306 & 3.322) or secondary connection caused by a disability already deemed service-connected by the VA (§ 3.320).  The related disability compensation benefits are cumulative with the benefits the veteran may have to healthcare, vocational rehabilitation and education, depending upon the character of the veteran’s discharge (§ 3.12(d)).

2 See 38 C.F.R. § 4.125 (2016).

3 See, e.g. Veterans’ Mental Health and Other Care Improvements Act of 2008 (Pub. Law. No. 100-387).  Among other things, this law requires the Secretary of Veterans Affairs to carry out research programs related to PTSD and provides veterans with medical support for substance abuse disorders.

4 National Center for Veterans Analysis and Statistics, VA Benefits & Health Care Utilization (2018), available at https://www.va.gov/vetdata/docs/pocketcards/fy2018q1.pdf.

5 On average, it takes 4.7 years from the filing of a Notice of Disagreement to the issuance of a Board of Veterans Appeals decision.  U.S. Dep’t of Veterans Affairs, Board of Veterans Appeals, Annual Report FY 2016, p. 22 (2017), https://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2016AR.pdf (last visited February 24, 2018).

6 Jack Tsai et al., Medical-Legal Partnerships at Veterans Affairs Medical Centers Improved Housing and Psychosocial Outcomes for Vets, Health Affairs (December 2017).

7 Id.

8 VA Study Shows Legal Services Improve Health, New York Legal Assistance Group, https://www.nylag.org/news/2017/12/va-study-legal-services-health (last visited February 23, 2018).

9 See, e.g., Community Education, Swords to Plowshares, https://www.swords-to-plowshares.org/what-we-do/combat-to-community/ (last visited February 23, 2018).

10 See, e.g., id.

11 See Tsai, supra note 6.

12 Amanda Enayati, Seeking Serenity: The 10 New Rules for Health and Happiness in the Age of Anxiety 212 (2016).

13 See, e.g., Mindfulness in Law Program, University of Miami Law School https://www.law.miami.edu/academics/mindfulness-in-law-program (last visited February 22, 2018); Mindfulness, Harvard Law School, http://hls.harvard.edu/dept/dos/wellness/mindfulness/ (last visited February 22, 2018).

14 NALP ALI CLE Professional Development Institute Agenda, NALP, http://www.cvent.com/events/2017-nalp-ali-cle-professional-development-institute/agenda-53a54580f8784d66818f80f8aa54eeff.aspx (last visited April 16, 2018); Mindfulness in Law Society Student Division, http://mindfulnessinlawsociety.com/law-student/ (last visited April 15, 2018).

15 The ability to rest attention on the breath is a core component of mindfulness practice.  As the individual progresses, the practice can evolve into bringing attention into other aspects of daily life.  For an approach which seeks to cultivate attention as connected with elements of the natural world, see Scott Rogers, The Elements of Mindfulness (2017).

16 Free guided mindfulness practices provided by the University of California Los Angeles Mindful Awareness Research Center are available at http://marc.ucla.edu/mindful-meditations.

17 Gretchen Reynolds, To Train an Athlete, Add 12 Minutes of Meditation to the Daily Mix, The New York Times (June 21, 2017).

Leonard Simmons

Seward & Kissel

Leonard Simmons is an associate attorney in the investment management group of Seward & Kissel LLP.  Mr. Simmons represents disabled veterans as part of his pro bono practice, is certified to teach mindfulness to lawyers and law students, and leads an ongoing mindfulness program at Brooklyn Law School.  He may be reached at simmons@sewkis.com. The views expressed in this article do not reflect the opinions of Seward & Kissel LLP.