Category Archives: Features

Wellness-Agni for Legal Professionals

By: Susan Borecki*

“I feel, therefore I exist.”

-Thomas Jefferson

Years ago, I took a sabbatical from my legal practice and enrolled as a student at the Ayurvedic Institute. Ayurveda is the science of life based on the ancient Vedas. Yoga is the most well-known Vedic discipline in the West. Another that is becoming more widely known is Ayurveda. Ayurveda is the “Mother of all Healing.”  Health and healing according to Ayurveda begin with Agni. 

Agni is the Sanskrit word for fire. In my last article I discussed Agni and digestion. Today we will explore the role that Agni plays in the legal profession. 

Agni refers to the digestive fire, the fire of intelligence, and the fire governing all transformative processes. Like fire, Agni is hot, light, sharp, and dry. Agni governs the highly organized process of creating and blending acid, bile, and enzymes to transform food into usable energy. Maintaining a balanced Agni translates into better digestion, elimination, and immune function.

Agni is also the vehicle by which food becomes consciousness. Agni governs the processing and assimilation of information. All this, through the miracle of fire. 

We speak of something to consider, and legal professionals are voracious consumers. We take in myriad bits of a vast variety of information and evaluate them considering all the related circumstances. We craft them into legal principles, arguments, and conclusions. 

Just as a balanced Agni results in the smooth digestion of food, so a balanced Agni gives optimal job performance. There are a few key qualities that make for an effective and efficient legal professional. All of them require effective and efficient Agni.

Ability to Listen

Meeting with clients requires the ability to welcome people into your environment and help them feel comfortable and appreciated. We do this through outwardly communicating that we are listening. Asking the right questions and reflecting to the client what you have heard is a dance, just as a flame will do. Your good Agni communicates warmth and your understanding of the situation. Your good Agni processes the client’s words and nonverbal cues and allows you to reassemble them into a legally meaningful construct. And, because you have intelligently evaluated your client, you are able to restate the issues in a way that the client is able to understand.

If your Agni is balanced, you will be calm and assess the matters discussed with clarity and control. This in turn stimulates the client’s confidence and trust. If your Agni is too strong, you might appear irritated or angry and judgmental. If it is too low, you could appear distracted or uninterested. You might not accurately assess risks and the chance of success. The plan of action you create may prove ineffective.

Compassion and Empathy

Compassion is the ability to feel sympathy for the client who needs help. Empathy allows you to put yourself in the client’s shoes and feel what they feel. Your internal flame naturally seeks out that of the client. If the client’s Agni is low, you sense it, whether consciously or not. If your Agni is strong, it will reach out to bolster the client’s. If the client’s Agni is too high, one’s own Agni remains cool, to calm the blaze. Your compassionate fire quietly assesses the client and decides if and how you can help. As we know, just listening and being present is often enough.

Extend to others the same compassion and empathy you have for your clients. You cannot hope to be successful if you are not able to appreciate the clerks, your opponent, or the judge. Your subtle flame is always vigilant to the signals given by those who play a role in the outcome of your case.

Assertiveness

An effective legal professional has the appropriate skills and the confidence to use them. An assertive lawyer is game for what may come. One’s enthusiasm—powered by a healthy Agni–is steady, within a manageable range. Out-of-control Agni will make one overly aggressive. One can misread a situation or over-worry an insignificant or unintended slight. This in turn will make one react with anger, failing to maintain a steady, measured course. 

Unfettered aggression can, as they say, “burn bridges.”  In the middle of a conference or a hearing, one can misstep if one overly identifies with one’s points. Zealous representation can be enthusiastic but is ineffective when fanatical and overheated. A well-tempered Agni gives the intelligence to act rather than react. Sometimes, with the right attitude, just showing up really is enough. 

Analytic Skills and Perspective

No one disputes that being able to assess a situation and apply the law appropriately is key for legal professionals. Setting out a problem with an argument supported by law in outline form is our bread and butter. What may not be so apparent is how much analysis is the right amount. An overactive Agni could make one dive too deep in the weeds or blind to key factors.

An insufficient Agni may leave one sputtering and at a loss when it is time to drive home the winning argument, whether on paper or orally. The measured, consistent Agni will make all the important points, to the necessary degree, in both the filings and at the hearing.

Creativity and Timing

There is a general cadence of cases in each area of the law. Within the normal range there is some ebb and flow in which you make a case uniquely yours. Weaving a fresh approach around black letter law is the mark of a consummate professional. 

Understanding how and when to shine new light on an old situation is possible for one with the fire of discernment. Inroads are made by insight coupled with the sincere desire to express a new, better way of seeing things. 

Dedication and Commitment

Of course, the ability to keep the flame of attention burning throughout the whole life of a case is essential. But staying motivated and “stoked” can be a challenge. Confronted with obstacles and delays, a sufficient reservoir of patience can be hard to find. In such situations, knowing that for everything there is a beginning and an end, is the currency of a professional. We talk about putting things off on the back burner or letting things simmer, for example. 

As a criminal defense attorney, I have found that dedication means maintaining the same level of attention and appetite for a case from presentment to the notice of appeal. After the codefendant has pled out, when it is “just us” at the defense table, then me delivering my closing argument (completely convinced of an acquittal), and me enjoying every minute of the 2.67 days the jury is out, and years later remembering my cross of the government’s DNA lab technician, the flame of attention still burns strong. 

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Many of us start the day with caffeine in the form of a large, lovely mug of coffee or tea. To enkindle your Agni, first drink a glass of filtered water. Serve it at room temperature because chilled and iced drinks tend to extinguish Agni. Drink it thoughtfully, as an acknowledgement of your Agni, which will guide you through your day. 

  • The author is a frequent contributor about wellness from the Asian historical perspective. The article should not be construed as medical advice on the subject.

Getting Creative: Why Diversity, Equity, and Inclusion Initiatives are Mental Health & Wellness Initiatives

By: Sarah Knarzer, Esq.1

While well-intentioned, many diversity, equity, and inclusion initiatives (DE&I initiatives) tend to struggle to gain momentum and succeed in law firms and other legal organizations, particularly when those initiatives are focused solely on hiring practices. It is no surprise that diversity, equity, and inclusion does not just miraculously occur in the workforce because some leaders have agreed that it is the right thing to do. In fact, employers who have prioritized practices such as employing attorneys with diverse experiences, making success attainable for all employees, and creating supportive communities within their work force, have realized that DE&I initiatives are the formula for a stronger, healthier workplace. It is evident that for values such as diversity, equity, and inclusion to truly become part of firm or legal organization, they must be integrated into everything that firm or legal organization does, including mental health and wellness programs, and vice versa. 

              Diversity and the Workplace

“Despite the increased emphasis on diversity and inclusion within the legal field over the past decade or so, the legal profession remains one of the least diverse of any profession.”2 This is despite the fact that “studies have shown, time and time again, that diversity is good for business.”3 One primary barrier is leadership—without diverse leadership, diversity initiatives will almost always fail. For example, as of 2017, Asian Americans were the largest minority group at major law firms.4 However, “[a]mong Asian Americans, although women outnumber men among law firm associates, men outnumber women by almost twofold at the partner level.”5 

Diversity for diversity’s sake—a numbers game where you achieve a quota of “diverse” employees and call it a day—is doomed from the start. Such initiatives—while necessary—focus primarily on hiring/recruitment practices, are reactive in nature, and don’t address the root of why minority attorneys struggle to find the same success and satisfaction in the work force as their majority counterparts: minority attorneys at all levels of their legal organization don’t often have the resources to start on the same footing as their majority colleagues in an inequitable workplace or to integrate with or feel embraced by their peers in an non-inclusive workplace.6

 For illustration, being invited to the party is the first step, but if you are not invited to dance, or if you do not have the ability to dance in the first place, you will not have as much fun as the others at the party, despite everyone’s good intentions. Accordingly, injecting robust mental health and wellness initiatives into all aspects of your workplace’s diversity, equity, and inclusion strategy addresses many of the barriers to employee retention, promotion, and public perception as a diverse workspace—but more importantly, it strengthens and empowers employees to be successful on an individual level and as a collective workforce. 

                Need for a Flexible Approach

Mental health and wellness initiatives that take a “one-size-fits-all” approach and ignore the diverse experiences and backgrounds of their employees will not succeed. Minority employees’ mental health can be directly impacted by microaggressions, bias, and a lack of inclusivity that they may experience in their workday. This is particularly true in the legal occupation where many attorneys struggle with mental health—ALM’s 2020 Mental Health and Substance Abuse Survey showed that out of 3,200 responses, 64% of attorneys experience anxiety, 31.2% experience depression, 10.1% feel they struggle with alcoholism, 2.8% feel they may have a drug problem, and, most concerning, 17.9% of respondents have contemplated suicide during their professional legal career.7 

The legal community has made great strides with destigmatizing some of these mental health concerns and providing resources for attorneys who are struggling, but to fully address the concerns of all attorneys, we must identify the sources of mental health problems and the barriers to receiving help before we can remove them. For example, diverse cultural attitudes and stereotypes often impact the way minorities seek help with their mental health or prevent them from seeking help altogether.8

                      A Supportive Environment   

Feeling included, supported, and capable of success in an organization is critical to strong mental health and well being in the workplace.9 Given the amount of time, energy, and attention attorneys spend in their work, it is impossible to ignore the impact that their work environment may have on their mental health. Injecting DE&I initiatives into all aspects of your workplace’s mental health and wellness strategy addresses many of the negative experiences that are unique to minority attorneys and fosters a work environment that is a source of positivity and personal fulfillment for all employees; and mentally well and happy people are better employees, supervisors, leaders, and attorneys. There is no single approach to solve all mental health, well-being, diversity, equity, and inclusion concerns in your workspace. 

However, mental health and well-being and DE&I strategies must be intersectional if they are to be achieved.10  By incorporating concepts of diversity, equity, and inclusion into your mental health and wellness programs, and vice versa, you will start to provide employees and attorneys from all experiences and backgrounds with the resources they need to succeed both personally and professionally at your legal organization. 

    To illustrate, attorneys who manage various disabilities may have experiences that are more challenging than their colleagues’ without disabilities through no fault of any person involved. In addition to the difficulties caused by their disability, these attorneys frequently struggle with both subtle and overt instances of bias and discrimination in the workplace.11 These instances often arise from a lack of understanding of a person’s abilities. 

For example, an attorney who uses a wheelchair to be mobile may not be able to accompany colleagues on a firm-wide hike. A standard health insurance plan may not account for the employee who requires the use of a hearing-aid to participate in a conversation. An employee who is neurodivergent (has autism, dyslexia, etc.) may not be able to integrate socially or professionally without accommodations or support from all their peers. And, of course, while organizations frequently state that they do not permit bullying or harassment in the workplace, it undoubtedly still occurs—and minority communities may endure the most of such unacceptable conduct. 

These are just some of the examples where an individualistic approach would benefit human resources, administrative, and employee development staff in supporting their attorneys within a legal organization. By increasing anti-bias training and education and making small modifications to certain practices—such as health insurance coverage for disabilities, ensuring food options for specialized diets (ex. vegan, kosher), hosting a diverse variety of social functions, permitting flexible leave and floating holidays for those of different religions and ethnic traditions—your workspace can become more equitable and your employees will feel more included, supported, and empowered to succeed.12 

Of course, recruitment, hiring, and retention policies are integral to any diversity, equity, and inclusion strategy. Pooling from diverse backgrounds, valuing diverse experiences, and promoting diverse employees to positions higher up in your legal organization are all critical to obtaining a strong, healthy workplace. However, even in this area of your organization’s diversity strategy, mental health and well being concerns can and should be considered. 

For example, it is important not to tokenize the diverse employees that are currently a part of your workforce in advertising materials and/or recruitment.13 Tokenization occurs when a minority person is hired, promoted, and/or advertised “only to prevent criticism and give the appearance that people are being treated fairly” and without any real intention or practice to treat them in the same capacity as a majority counterpart.14 Doing so is not only misleading to potential employees by setting them up for expectations for their employment that can only fail and disappoint them, but it is also exhausting for one or two choice people to be the beacon for diversity in their organization (often without a paycheck to reflect that additional work,) anxiety-inducing to feel the need to be the perfect example and a mentor to any and all other diverse employees, and discouraging to feel that they were only hired to be a statistic or photo opportunity and not for their skills, abilities, and strengths as an attorney. This does not mean they cannot or should not be a part of those hiring and recruitment practices but doing so should be on their terms and they should feel free to speak honestly about their experiences, even the negative ones. 

Another example is for hiring managers to truly value diversity as a policy, not as a statistic. In a recent study, 76% of new job seekers and employees have reported that a diverse work environment is a crucial factor in considering offers of employment.15 (Speaking for myself, I certainly considered diversity initiatives—and the opportunity to become involved with diversity initiatives—in accepting my current position as an associate at my law firm.) This statistic indicates that now, more than ever, it is important to have a concrete DE&I strategy that can be used as an incentive for diverse and diversity-minded candidates to work at your organization. However, it is also important for interviewers and hiring managers to be honest with potential employees who inquire about DE&I initiatives in your workplace. 

If an employee accepted a job offer partially on the impression that they were joining an organization that had strong diversity, equity, and inclusion policies, only to learn that such policies were not, in fact, valued or practiced by the organization as a whole, they may grow to resent their employer, thus impacting their mental health and well-being as an employee. If your organization is not where you think it should be in terms of diversity and inclusion, but you and others are working to improve that and are looking to hire those who feel the same, then say so—candidates may be excited about the opportunity to leave an impression on their firm and, if given the opportunity and an environment to do so, they may feel fulfilled and empowered by their organization to be a successful employee. 

                    In Closing   

The methods in which your legal organization can strengthen both mental health and wellness initiatives and DE&I initiatives by intersecting the goals of each may be critical to supporting attorneys at your organization. How your firm or organization accomplishes this will require creativity and commitment from all levels—and your strategy will have to be unique to your firm or organization’s workforce, resources, and environment. However, the first step is to view each initiative not as mutually exclusive of the other, but instead as compatible and harmonious goals that, if achieved, will cultivate a workspace where employees can flourish both professionally and personally.

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  1. Sarah K. Knarzer is an Associate Attorney with McCandlish Holton’s Civil Litigation Group in Richmond, Virginia. She is passionate about diversity and inclusion in the legal community and is happy to discuss this article and other initiatives with anyone else who is interested. For inquiries, please e-mail sknarzer@lawmh.com.
  2. Allison E. Laffey & Allison Ng, Diversity and Inclusion in the Law: Challenges and Initiatives, American Bar Association (May 8, 2018), https://www.americanbar.org/groups/litigation/committees/jiop/articles/2018/diversity-and-inclusion-in-the-law-challenges-and-initiatives/.
  3. Id.
  4. Chung et al., The Portrait Project: A Portrait of Asian Americans in the Law (2014).
  5. Laffey, supra note 2 (citing Chung, supra note 3, at 18).
  6. Dr. Heather Bolton, DEI That Ignores Mental Health Is Doomed, HR Daily Advisor (Nov. 6, 2020), https://hrdailyadvisor.blr.com/2020/11/06/dei-that-ignores-mental-health-is-doomed/.
  7. lex Andonovska, Lawyers Reveal True Causes of Mental Health Struggles Beyond COVID-19, JDJournal (May 7, 2020), https://www.jdjournal.com/2020/05/07/lawyers-reveal-true-causes-of-mental-health-struggles-beyond-covid-19/ (citing Mental Health and Substance Abuse Survey, ALM Intelligence (2020)).
  8. For more examples of the way diverse backgrounds affect mental health, see Jayne Reardon & Bree Buchanan, Lawyer Well-Being: An Uncharted Path to Increasing Diversity and Inclusion, American Bar Association (Feb. 19, 2018), https://www.americanbar.org/groups/litigation/committees/diversity-inclusion/articles/2018/winter2018-lawyer-well-being-alcoholism-self-help/.
  9. Patricia Silva, Mental Health Efforts Will Support Diversity In Legal Industry, Law360 (June 9, 2020, 10:09 p.m.), https://www.law360.com/articles/1278451/mental-health-efforts-will-support-diversity-in-legal-industry.
  10. Garen Staglin, The Essential Role of mental Health For A Diverse, Inclusive Workplace, Forbes (July 14, 2020, 9:00 a.m.), https://www.forbes.com/sites/onemind/2020/07/14/the-essential-role-of-mental-health-for-a-diverse-inclusive-workplace/?sh=72e0da4bac4d.
  11. For examples and statistics, please see Blanck et al., Diversity and Inclusion in the American Legal Profession: First Phase Findings from a National Study of Lawyers with Disabilities and Lawyers Who Identify as LGBTA+, 23 Univ. D.C. L. Rev 23 (2020).
  12. For other examples, see Making Diversity, Equity, and Inclusion a Part of Your Corporate Wellness Program, WellRight (July 8, 2020), https://www.wellright.com/blog/making-diversity-equity-and-inclusion-a-part-of-your-corporate-wellness-program.
  13. Five Ways to Avoid Tokenism in Diversity and Inclusion Work, The Network (Aug.19, 2020), https://www.the-network.com/five-ways-to-avoid-tokenism-in-diversity-inclusion-work/
  14. Avoiding Tokenism when Promoting Cultural Diversity in the Workplace, Thomas (Nov. 26, 2020), https://www.the-network.com/five-ways-to-avoid-tokenism-in-diversity-inclusion-work/.
  15. What Job Seekers Really Think About Your Diversity and Inclusion Stats, Glassdoor (July 12, 2021), https://www.glassdoor.com/employers/blog/diversity/.

Make Justice Accessible to Autistic Individuals

By: Walewska M. Watkins*

    Introduction1    

Disabled individuals2—especially those who are intellectually and developmentally disabled— are more likely to become involved in the criminal justice system as survivors or offenders than those who are not disabled.3 They are exploited and injured by strangers and caregivers who take advantage of their physical, intellectual, developmental, or communication limitations.4 Too often, they are re-victimized by our collective failure to sufficiently empower them in rejecting abusive criminal behavior and obtaining legal protections.5 

Whether intentionally or negligently, we have failed to create administrative and judicial systems willing to believe and sufficiently accommodate them.6 We have yet to eliminate personal and systemic biases that conceive of the harms inflicted upon them as inevitable, necessary, or benign or simply as civil or administrative infringements that do not require prosecution.

Disabled individuals also disproportionately bear certain burdens of inequality, including unemployment, poverty, homelessness, and violence that can drive them—as they drive others— to engage in criminal conduct. Some—especially those with intellectual and developmental disabilities—are manipulated into criminal behavior by their social isolation or misinterpretation of the nature of illicit activities.7 Regardless of their status as accusers or accused, disabled individuals are entitled as a matter of law to fully access and participate in our judicial systems. 

As attorneys, we are charged with the aspirational goals of our Rules of Professional Conduct to consider the existing deficiencies in the administration of the justice and to improve our laws and the quality of services we render to the public.8 As officers of the court, we should aspire to eliminate existing and emerging physical and communication barriers that prevent disabled individuals from participating in investigative and adjudicative processes free of condescension and pernicious discrimination. We should also seek to create and enforce remedies that fairly redress the harms disabled individuals experience and address the harms they may perpetrate. 

What is Autism?

An Autism Spectrum diagnosis generally identifies individuals with sensory processing, executive functioning, communication, or social interaction approaches that depart from the stereotyped expectations we deem the norm. Depending upon their profile or situational needs, those who have received the benefit of an Autism Spectrum diagnosis (i.e., Autistic individuals) may be entitled to the protections afforded under federal and state disability rights statutes. 

Some Autistics may, for instance, process language (including its intonations, interruptions, and accompanying gestures) or other sensory stimuli (e.g., a banging gavel or a crowd suddenly standing up) differently from that preferred by a government agent or institution (e.g., more slowly, more intensely, more fearfully, etc.) Others may communicate through alternative means or assistive technology (e.g., American Sign Language, speech generating devices, picture boards, or electronic communication boards) or may have developed an individualized approach to vocabulary, grammar construction, volume, cadence, facial expressions, or mannerisms. Yet others may require emotional or social supports either sporadically or consistently. 

According to the National Institute of Mental Health, about 1.9% of the general population has been diagnosed as Autistic by either a medical or educational expert.9 It is likely, however, that this number underestimates Autism’s prevalence since women and racial and ethnic minorities are more likely to go undiagnosed.10 

The Centers for Disease Control and Prevention estimate that close to 24% of adult Virginians are disabled.11 Though historical changes in diagnostic criteria and previous systemic failures in data collection make it difficult to establish the size of Virginia’s Autistic cohort, estimates show that about 10% of Virginian children who receive supportive education services is Autistic.12 This suggests that Autistics represent a similar proportion of the population here as they do nationwide.

Is Autism a Disability That Our Courts Must Accommodate? (Yes. It is.)

The Americans with Disabilities Act (ADA) along with its regulations and the Virginians with Disabilities Act (VDA) define “disability” in terms of a substantial limitation of one or more major life activities, including neurological functions such as perceiving, concentrating, analyzing, and communicating.13 While each Act has its own nuance, they both seek to ensure that disabled individuals are guaranteed equal opportunities and full participation in social and civic life.14 

Title II of the ADA, for example, requires public entities—such as our Commonwealth courts and Commonwealth Attorneys— to take appropriate steps to ensure the protection of the statutory and constitutional rights of “qualified individual[s] with a disability.”15 These steps (sometimes referred to as “reasonable accommodations”) may include providing access to technological aides, certain professional services, and the assistance of others to facilitate the disabled individual’s communication and participation in government services, programs, or activities.16 The VDA similarly prohibits excluding “person[s] with disability” from participating in or benefiting from programs or activities undertaken by the state, on behalf of the state, or otherwise receiving state financial assistance on the basis of their disability.17 

Whether they do so consistently or only under the stress of participating in judicial processes, Autistic individuals can find these processes inaccessible and thus evidence a substantial limitation to a major life activity. Their unconventional needs or behaviors may, moreover, prevent narrowly focused prosecutors, legal representatives, jurors, or judicial officers from fairly evaluating Autistics’ competence, memory, motivations, and trustworthiness and from honoring their rights to due process of the law and other constitutional guarantees. Autistic individuals would therefore qualify as “person[s] with disability” and be accordingly entitled to receive reasonable accommodations throughout their participation in the judicial process and related proceedings. 

How Can Our Court Systems Reasonably Accommodate Autistic Individuals?

While disabled individuals may be capable of filing a request for a reasonable accommodation (i.e., a modification or adjustment to processes) in advance of a particular interaction,18 they may not know in advance that they will need one. The absence of such requests does not relieve an entity of its obligation to take “appropriate steps”19 to prevent disability-based discrimination.

A logical first appropriate step in providing yet unrequested reasonable accommodations is to recognize that an individual may be unable to perform a specific task in the standardized manner. An attorney, judicial officer, or support staff may, for example, perceive that a person is struggling to complete intake paperwork.20 Without demanding information about the source or nature of the person’s disability, they may volunteer to read the text aloud or paraphrase for simplicity. This may quickly address the challenges faced by dyslexic individuals, by those unfamiliar with technical language, or by Autistic individuals who struggle with open ended questions. 

Depending upon the type of form in question, attorneys may alternatively offer to complete the form for the individual—which would discretely address language production, educational, or motor coordination disadvantages experienced by the disabled individual. The reasonable accommodation that would best fit a situation and an individual, however, will depend upon the situation, the substance of the form, the individual, and the disability. 

Recognizing and honoring a disability is more complicated and must go farther than preparing initial paperwork to access justice. It is the courts’ duty to ensure that Autistic or otherwise disabled victims, witnesses, and even accused are afforded means and strategies for communication that can effectively help them establish their positions and communicate their experiences of trauma.21 

Non-Autistic participants in judicial process should, for example, refrain from relying on the ambiguity of body language and demeanor since Autistics may either produce or perceive those differently. Autistics’ demeanor may, for example, be significantly influenced by trauma and by their unconscious development of “a psychological safety mechanism made up of complex layers of physical, emotional and social actions…”22 

Autistics may also easily misunderstand open ended questions and become unduly anxious due to their limited ability to capture context clues and intended meanings.23 Indeed, following some of our sister states’ precedent, judicial officers should consider exercising their discretion—as contemplated by Va. S.Ct. Rule 2:611— to allow leading questions during a direct examination as a reasonable accommodation to develop testimony at trial.24 

The rules on relevance may have to yield to accommodate an Autistic witness and allow the presentation of contextual information about Autism and how the person’s Autistic profile or learned coping strategies may express itself in the individual’s tone, posture, expressions, behavior, or choices. Such modification to our traditional notions of relevance can similarly provide context to behavior presented as evidence of Autistic defendants’ motive, intent, fault, guilt, demeanor, and remorse to ensure that harms are repaired without imposing disproportional accountability.25 

Individualization of accommodations is fundamental as Autistic individuals are not monolithic. For some, these or similar accommodations may represent the best means to “facilitate the ascertainment of truth,” “avoid needless consumption of time,” and protect an Autistic or otherwise disabled witness from “harassment or undue embarrassment.”26 For us, they may represent our best acknowledgement of the special vulnerabilities of Autistic victims that make them easy targets for physical abuse and psychological and intellectual manipulation. 

_______________________________________________________________

*About the author

Walewska M. Watkins is a legal services attorney, living and working in Northern Virginia. She received her Juris Doctor from Georgetown University Law Center and her LLM in Environmental Law from Tulane University Law School. She is licensed to practice law in New York, California, Puerto Rico, the District of Columbia, and our Commonwealth of Virginia. Her practice has included civil rights, environmental regulation, gender discrimination, and First Amendment rights as well as copyrights and commercial litigation. Ms. Watkins is a member of the Governor’s Virginia Latino Advisory Board and the Fairfax County’s Community Action Advisory Board, a Virginia Board for People with Disabilities’ TAA, and a member of the Little Lobbyists, a not-for-profit organization that advocates for the rights of children with complex medical needs and disabilities.

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  1. There is a growing body of activism and scholarship focused on law enforcement interactions with Autistic individuals and on how training and experience working and socializing with Autistics can improve law enforcement outcomes. Little work has been done, however, to enrich prosecutorial decisions on Autism and on how Autistics may experience crime and criminal prosecutions differently from non-Autistics. During its 2021 Spring Training Institute last April, the Commonwealth’s Attorneys’ Services Council assumed a leading role introducing our state attorneys to an overview of Autism, how aspects of prosecutorial and judicial processes can affect Autistics’ access to justice, and how some reasonable accommodations can mitigate certain challenges. The expert training panel—“Autism and Criminal Justice”— included attorney Ariel Simms from The Arc of the US’ National Center on Criminal Justice & Disability, attorney Kelly Israel from the Autistic Self Advocacy Network, the Honorable Judge Susan J. Stoney from the Fairfax County General District Court, and the author. This article reflects some of its lessons.
  2. This National Center on Disability and Journalism’s Disability Language Style Guide recognize that some disability activists prefer the use of person first language—i.e., “person with a disability”—, while others prefer identity first language—i.e., “disabled person.” Nat’l Ctr on Disability and Journalism’s Disability Language Style Guide, https://ncdj.org/style-guide/#disabledpeople (last accessed April 30, 2021). The Autistic community currently prefers identity first language and thus this writing will follow their lead.
  3. Leigh Ann Davis, People with Intellectual Disability in the Criminal Justice System: Victims & Suspects, p. 1, available at https://thearc.org/wp-content/uploads/forchapters/Criminal%20Justice%20System.pdf#:~:text=People%20with%20intellectual%20and%2For,including%20reasonable%20accomdations%20as%20necessary (last accessed April 30, 2021). See also Jeffrey A. Cohen, Thomas A. Dickerson, and Joanne Matthews Forbes, A Legal Review of Autism, A Syndrome Rapidly Gaining Wide Attention Within Our Society, 77 Albany Law Review 389, 417 (2014)(citing Karen Hughes et al., Prevalence and Risk of Violence Against Adults with Disabilities: A Systematic Review and Meta-Analysis of Observational Studies, 379 Lancet 1621, 1626, 1627 (2012))(Autistic individuals are more likely to be victims than perpetrators of crime.) (Content Warning: This article includes ableist language and perspectives.)
  4. See, e.g., Christina Rainville (Jan. 09, 2018), Prosecuting Cases for Children on the Autism Spectrum [American Bar Association’s Center on Children and the Law Blog Post], available at https://www.americanbar.org/groups/child_law/resources/child_law_practiceonline/child_law_practice/vol_32/april-2013/prosecuting-cases-for-children-on-the-autism-spectrum/ (last accessed April 30, 2021); Karen Hughes et al., Prevalence and risk of violence against adults with disabilities: a systematic review and meta-analysis of observational studies, p. 8 (2012), available at https://www.who.int/disabilities/publications/violence_children_lancet.pdf (last accessed April 30, 2021); Leigh Ann Davis, People with Intellectual Disability in the Criminal Justice System: Victims & Suspects (August 2009), p. 1, available at https://thearc.org/wp-content/uploads/forchapters/Criminal%20Justice%20System.pdf#:~:text=People%20with%20intellectual%20and%2For,including%20reasonable%20accomdations%20as%20necessary (last accessed April 30, 2021).
  5. Id.
  6. Leigh Ann Davis, People with Intellectual Disability in the Criminal Justice System: Victims & Suspects (August 2009), p. 1, available at https://thearc.org/wp-content/uploads/forchapters/Criminal%20Justice%20System.pdf#:~:text=People%20with%20intellectual%20and%2For,including%20reasonable%20accomdations%20as%20necessary (last accessed April 30, 2021).
  7. Id.
  8. Va. State Bar: Professional Guidelines, Preamble: A Lawyer’s Responsibilities, available at http://www.vsb.org/pro-guidelines/index.php/rules/preamble/ (last accessed April 30, 2021). See also Supreme Court of Virginia, Virginia’s Courts in the 21st Century: To Benefit All, To Exclude None, available at http://www.courts.state.va.us/courtadmin/aoc/judpln/reports/2009_strat_plan.pdf (last accessed May 31, 2021)((Vision 2.5 reads: “Eliminate from the operation of the Judicial System harmful biases such as those based on race, gender, age, disability or socioeconomic status”; Vision 5.9 reads: “Ensure that participants in the judicial process are not discriminated against because of race, language, gender, age, disability, or socioeconomic status.”)
  9. Nat’l Inst. of Mental Health, Prevalence of ASD, available at https://www.nimh.nih.gov/health/statistics/autism-spectrum-disorder-asd (last accessed on May 11, 2021).
  10. See, e.g., Jen Malia, “My Daughter and I Were Diagnosed with Autism on the Same Day,” The New York Times, (October 15, 2019), available at https://www.nytimes.com/2020/04/15/parenting/autism-mom.html (last accessed May 11, 2021); Allison B. Ratto et al., What About the Girls? Sex-Based Differences in Autistic Traits and Adaptive Skills, 48 Journal of Autism Dev. Dis. 1698–1711 (2018); David S. Madell et al., Racial/Ethnic Disparities in the Identification of Children With Autism Spectrum Disorders, 99 Ame. Journal Public Health 493 (2009), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2661453/ (last accessed June 14, 2021).
  11. U.S. Centers for Disease Control and Prevention, Disability & Health U.S. State Profile Data for Virginia (Adults 18+ years of age), available at https://www.cdc.gov/ncbddd/disabilityandhealth/impacts/virginia.html (last accessed on May 12, 2021).
  12. Easter Seals, 2016 State Autism Profiles VIRGINIA, https://www.easterseals.com/explore-resources/living-with-autism/2016-autism-virginia.pdf (Content Warning: This document includes ableist language and perspectives.)
  13. As defined by the Americans with Disabilities Act (ADA), the term “disability” means an actual or perceived “physical or mental impairment that substantially limits one or more major life activities” or a record of such an impairment. 42 U.S.C. § 12102(1); 42 U.S.C. § 12102(2)(C). The ADA protects individuals who are perceived as disabled, but who are not actually so, only if their perceived impairment is not one that would be regarded as transitory, defined as lasting six months or less. 42 U.S.C. § 12102(3)(B). See 42 U.S.C. § 12102(4)(including rules of broad construction and interpretation). See also 28 C.F.R. § 35.108. For purpose of the ADA, “major life activities” include, but are not limited to, “but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” 42 U.S.C. § 12102(2)(A). They also include immune, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. 42 U.S.C. § 12102(2)(B). See also Virginians with Disabilities Act, Va. Code § 51.5-40.1.
  14. See 42 U.S.C. § 12101(b); Va. Code § 51.5-1.
  15. 42 U.S.C. § 12132. See also 42 U.S.C. § 12131(1)(defining the public entities subject to ADA’s Title II); 42 U.S.C. § 12131(2)(defining “qualified individual with a disability” as a disabled individual who, with or without reasonable accommodations, “meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.”)
  16. 28 C.F.R. §35.160.
  17. Va. Code § 51.5-40.
  18. The Supreme Court of Virginia highly recommends the use of the following form to make a reasonable accommodation request: http://www.courts.state.va.us/courts/ada/accommodation_request_form.pdf (last accessed May 31, 2021). No government entity may, however, predicate the processing or grant of a reasonable accommodation upon the filing of a paper application or preferred form.
  19. 28 C.F.R. §35.160(a)(1) (“A public entity shall take appropriate steps to ensure that communications with applicants, participants, members of the public, and companions with disabilities are as effective as communications with others.”)
  20. The basis for this exemplary scenario must be credited to attorney Ariel Simms from The Arc of US.
  21. 28 C.F.R. § 35.160(b)(1) (“A public entity shall furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities, including applicants, participants, companions, and members of the public, an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity.”)
  22. Kieran Rose, Autistic Masking and Autistic Burnout: What is Masking?, available at https://theautisticadvocate.com/autistic-masking/ (last accessed on May 12, 2021).
  23. Similarly, slang, popular expressions, and overly symbolic language can also confuse or easily frustrate certain Autistic and otherwise disabled individuals.
  24. See, e.g., State v. Rivera, 987 A.2d 887, (R.I. 2010) (affirming decision to permit adult with developmental disabilities to be questioned by leading questions in a sexual assault case); People v. Augustin, 112 Cal. App. 4th 445, 449, 5 Cal. Rptr. 3d 171, 175 (2003)(affirming trial court’s decision to accommodate assault victim with cerebral palsy and speech disabilities by permitting leading questions on direct examination); State v. Stewart, 2003 WL 21251642, *11 (Tenn. Crim. App.)(affirming decision to permit direct examination of adult victim through leading questions, noting victim’s “mental condition” and “severe speech impediment” such that she “could not express herself as other witnesses can”); Trammell v. State, 298 So. 2d 66 (1974) (affirming decision to allow witness who had suffered a stroke to be questioned by leading questions and to answer non-verbally).
  25. Jeffrey A. Cohen, Thomas A. Dickerson, and Joanne Matthews Forbes, A Legal Review of Autism, A Syndrome Rapidly Gaining Wide Attention Within Our Society, 77 Albany Law Review 389, 413 (2014). (Content Warning: This article includes ableist language and perspectives.) The Hon. Jeffrey A. Cohen and the Hon. Thomas A. Dickerson are Associate Justices of the Appellate Division of the New York State Supreme Court, Second Judicial Department.
  26. See Va. S.Ct. Rule 2:611. See also Connecticut Code of Evidence § 6-8(b)(3), Comment (“Under exception (3), the court may allow the calling party to put leading questions to… a witness who has trouble communicating.”); California Rule of Evidence 767, Comment (“The exception stated at the beginning of the section continues the present law that permits leading questions on direct examination where …such questions are necessary to obtain relevant evidence. This would permit leading questions on direct examination for …examining handicapped (sic) witnesses[.]”)(internal citations omitted).

अग्नि Agni: The Power of Fire

By: Susan Borecki

Many years ago I took a sabbatical from my legal practice and enrolled as a student at the Ayurvedic Institute.  Ayurveda is the science of life based on the ancient Vedas.  Yoga is the most well-known Vedic discipline in the West.  Another discipline that is becoming more widely known is Ayurveda, the “Mother of all Healing.”  Health and healing according to Ayurveda begin with Agni. 

Agni is Sanskrit for fire.  Agni is hot, light, sharp, and dry.  Agni governs innumerable physiological processes including digestion and the assimilation of food at the cellular and more subtle levels.  

Digestion is key to health and wellness according to Ayurveda.  Foods are digested differently so one needs to know which foods are compatible with one another.  For example, poultry (including eggs), should not be eaten with dairy (such as milk and cheese).  Similarly, dairy should be eaten separately from fruits.  Fruits should be eaten alone, and not served on top of cereal or baked into bread or muffins.  Grains, including wheat and rice, combine well with beans, vegetables, meat, nuts, eggs and cheese.

If one’s agni is strong, the rules can be followed less stringently.  If one’s agni is poor, incompatible food combining can result in incomplete digestion.  The body is not always easily able to eliminate undigested food.  Accumulated over time, undigested food becomes a toxin called Ama.  

Ama is cold, dull, wet, heavy and viscous.  Ama can result in indigestion, fatigue and cloudy thinking.  Ama accumulation can be seen on the tongue.  A clear tongue, free of a white or brown coating, can be an indication of good agni.  A coated tongue may be a sign of ama in the body.  Ama can collect into the deep tissues and, if not addressed, can result in weight gain, dullness and ill health.

According to Ayurveda, food will absorb the ambient energies.  You can improve the quality of your digestion, therefore, by being mindful of your thoughts as you cook and eat.  Be fully present and emotionally grounded while handling food.  

Don’t argue or entertain disagreeable thoughts while cooking and eating.  And never criticize your food.  Your food fuels your activities, your thoughts and your feelings.  It also is incorporated into your tissues including the mind.  If you don’t like a particular dish, then finish it quietly or put it aside.  

You can improve your digestive fire by consuming simple, fresh and tasty meals.  Think positive, good thoughts while you cook and eat your meals.  Put off unpleasant topics for another time.  

Kindle your agni with Agni Tea:

1 quart water 
1 pinch cayenne 
2 handfuls minced fresh ginger root 
2 Tbs. cane sugar or other sweetener 
1 to 2 tsp. rock or sea salt

½ a lime, squeezed

Put the first 5 ingredients in a pot and boil for 20 minutes.  Add the lime juice and enjoy.

_____________________________________________________________________

This article is for entertainment purposes only and is not to be used to diagnose or treat illness.  

The Power of Breath

By: Susan Borecki, Esq.* 

“Wisdom is not acquired save as the result of investigation.” – Sankara Charya

Where did that button go?  That bright red button that opens up the hole in the courtroom floor.  It was right here a minute ago, wasn’t it?  It was under a folder, maybe.

I practice criminal law in Washington, DC.  My job is representing the accused.  I do my best to challenge the prosecutor, her witnesses, her theory, and her evidence.  If I am lucky, I also have witnesses, a theory and evidence to present.  But I am not normally so lucky.  

I attended a CLE in the early 90s called, “Only the Strong Survive.”  One of the presenters discussed the Red Button.  It was somewhere on the defense table, but was mostly elusive.  Usually, the best one could hope for is the court reporter to ask for a break.  

The presenter of this class gave a lot of pointers on preparing to defend the indefensible, how to bolster your client’s and your own confidence.  One tip I remember was labeling your trial binder with the client’s name emblazoned in large bold letters on the cover and spine.  Things you could do ahead of time so maybe you had a lot of distractions that you wouldn’t think about the red button.

But a CLE is not usually the place to look for solutions to mental or professional crises.  We have to find those elsewhere.  I did.  Let me share it with you here.

Meditation is the quieting of the endless chatter in the mind.  It is the attention to the breath that helps move one’s consciousness away from the mundane details that keep us busy and distracted.  

It’s a few moments of discipline leading to peace.  Over time, with practice, meditation stills the mind.  It gives one the confidence to find the necessary momentum, to pivot, whether it is standing one’s ground or ceding it with grace.  

The gap between two breaths contains a universe of possibilities.  

So, let’s get started.  Sit comfortably and breathe in (you didn’t need me to tell you to take off your mask, right?).  Breathe out.  Breathe out through your mouth, pushing the air out from your diaphragm.  Breathe in again, this time more deeply.  

If you haven’t closed your eyes yet, close them now.  Breathe in from your nose, filling your lungs.  Pause, if only for a nanosecond, then breathe out, again through your nose.  Give yourself the pause.  Continue breathing in and out like this for a few minutes.  Some people go for hours, but a few minutes once or twice a day is fine.  

Center your attention around your breath.  Thoughts may arise in your mind.  Ignore them.  They will drift by.  If they are important, they will be there when you are done.  Keep to the simple task of relaxing and breathing until you are done.

The answer to panic is the emptiness between breaths.  The breath can lead to space and clarity.  There is no reason to disappear.  Instead, transform and refresh by centering yourself.

______________________________________________________________________________

*The author has been a student of Ayurveda and its related disciplines for as long as she has practiced law. Her specialty is criminal law, and she has prevailed in a number of high profile and precedent setting cases. 

An Immigrant Woman’s Odyssey: Domestic Violence in America

By: Iqra Sheikh, Esq.*

Settling in America

Maryam [1] was born and raised in small rural community in Asia. In her country’s culture, the siblings of one family are often married to the siblings of another family, in order to strengthen family ties and preserve the family’s wealth. Women in the community were also taught that this system would also reduce domestic violence; for if a man were inclined to beat his wife, he would be reminded that her brother was married to his sister and could retaliate accordingly.

Neither Maryam nor her husband received any formal education, and both spoke the local ethnic language of their country, rather than the national language spoken by the elite. Nonetheless, Maryam and her husband immigrated to America, hoping as all immigrants do, to make a better life for themselves in the new world. For years they worked the night shift at a convenience store together; saving money to purchase their own franchise outlet, enabling them to accumulate wealth beyond their highest expectations. Despite their financial success, the couple remained childless; much to their sorrow and that of their families.                              

Cultural Norms Follow

Although their family overseas began pressuring Maryam’s husband to take a second wife, Maryam was shocked when her husband called her from a trip back to their home country and informed her that he had married again. By the time Maryam’s husband returned to America, his second wife was expecting their first child, while Maryam was still married to him.

Maryam’s husband, upon returning from his overseas trip with his second wife, had also changed in his conduct towards Maryam. He had become not only abusive but demanded that Maryam agree to a divorce and return to their home country. Maryam now found herself in a precarious position. She had no home to return to and lacked independent finances. As a divorced woman, she would also be shunned by her family and relatives.

Faced with a legal quandary of his own making, Maryam’s husband became physically abusive. His violent temper became increasingly physically dangerous, leaving Maryam with black eyes, a bloody nose, and broken limbs. With no one to turn to, she suffered in silence.

Maryam and her husband associated mostly with fellow immigrants from their home country; most of whom believed that spousal abuse was a private family matter. One learned from the old country experience, never to involve the authorities in family matters. Further, despite her many years in the United States, Maryam still had limited English skills. Relying on her husband to communicate with the outside world, manage their money, and secure their legal immigration status.

She had no grasp of her legal rights or the governmental options at her disposal, even if she had been able to communicate her needs in good English. Fearing for her life, Maryam fled her husband, staying with and relying on the charity of close friends. Her friends, however, similarly lacked the legal knowledge to assist Maryam or the language skills to advocate on her behalf.                                       

Immigrant Women and Domestic Violence

Domestic violence is not only an immigrant problem, but immigrant victims of domestic violence—many although not all women—face unique hurdles and challenges that limit their ability to seek redress. While sensationalist stories of acid attacks and honor killings in immigrant communities often garner the most media attention, most forms of domestic violence go unreported. Statistics on domestic violence involving immigrant groups are incomplete and unreliable; even though more than ten million people a year, many of these are women, are victims of domestic violence in the United States annually.

Immigrants, however, experience higher rates of domestic violence than the native-born population; largely because the social drivers of domestic violence can be particularly prevalent in immigrant communities. Some studies show that nearly 50 percent of immigrant women have experienced domestic violence and that in some cities in this country nearly 50 percent of domestic violence homicide victims are foreign born.

Immigrant victims of domestic violence are soft targets because of their delicate immigration status and may also fear law enforcement because of their experience in the countries from whence they came. Many spousal abusers also threaten to deport their victims if they complain and keep the children as hostages. Economic dependency on an abuser, and the economic consequences that can follow if the abuser is arrested, are motivating factors that lead abused spouses to maintain their silence in immigrant communities. Especially if the immigrant women are in the country illegally.

Many immigrant victims of domestic violence and abuse may also have high threat perception from police officers; particularly if they come from countries where law enforcement is routinely abusive towards civilians or indifferent to sexual and gender-based crimes. This threat perception may be exacerbated by their fear of deportation. Spousal abusers often exploit these fears.

Unfortunately, some of these concerns may be warranted: in a 2015 study by the American Civil Liberties Union (“ACLU”) found that of 900 immigrant domestic violence and sexual assault victims, 88 percent of respondents said that police often or sometimes do not believe the victim or blame the victim for the violence and 83 percent said that police often or sometimes do not take allegations of domestic violence and sexual assault seriously.

Another 51 percent of them said police are often or sometimes biased against immigrants and 69 percent said that police are often or sometimes biased against women. Sixty-one percent of the respondents said that reporting domestic violence or sexual assault to the police could trigger criminal charges that could lead to deportation. .

Many immigrant women like Maryam are unaware that the U.S. legal system can grant them primary custody of the minor children, spousal and child support from their abuser, protection orders to prevent their abusers from threatening them, and the right to file criminal charges against their abusers, without fear of deportation. Fewer still know how to secure legal assistance from pro bono legal clinics and volunteer attorneys.  Like Maryam, they are often at the mercy of their spousal abusers.                                               

Needs of Immigrant Women

Immigrant victims of domestic violence, if they complain, also risk ostracism by their family and community. Volunteer counsel must be taught to grasp the social and cultural challenges of the immigrant abused spouse. Lacking such training, they can appear callous and indifferent to someone like Maryam. A grasp of the cultural diversities of our society is needed by today’s legal professional. Her needs also entail language and norm value hurdles that she needs to surmount.

Even if Maryam were to surmount many of these hurdles, she could face threats to her physical safety and that of her family back in the old country. Domestic squabbles have been known to spark blood feuds and violence between families. The legal challenges extend beyond staying in the country without being deported or having custody of the children. They can take on a sinister format that calls for the volunteer attorney to be sensitive not only to the client’s legal needs, but also the cultural barriers and challenges that the client faces. No easy task.

Lack of adequate translation services is particularly acute in the rural areas of this country, and victims may be forced to rely on their young children to act as translators, which can often compound the trauma children of an abusive marriage face. Concern of getting the children involved will sometimes muzzle a victim’s voice and stifle her ability to tell her story and seek redress from the authorities. Maryam, while having no children, nevertheless, faces many of the same challenges.                                                           

Summary

Although lack of access to justice can be debilitating for immigrant women who are the victims of domestic violence, legal assistance can benefit them greatly and reduce their abuse. As many survivors’ report, the most frightening part of domestic abuse for an immigrant spouse like Maryam is the reality that one cannot escape from the abuser or get help from the authorities. Especially like Maryam, a feeling that their life in America has turned into a nightmare. Leading some to commit harm to themselves and their children in response to the pressures that they face.

Volunteer attorneys have the power to not only provide legal assistance to their clients, but also to end the most frightening part of their ordeal by giving them control over their lives, and the option to leave the spousal abuser on their own terms; without fear of continued physical abuse. With legal assistance, Maryam can leave her abusive husband without fear, and before the vicious circle he has created can lead to the loss of her life.  Her need is dire. Her American dream need not end in a nightmare.                                                                                       ______________________________________________________________________________

*The author is a Virginia lawyer who is both familiar with the challenges that immigrant women face, and who volunteers of her time to assist the victims of domestic violence within immigrant communities in the United States.

1. The name Maryam is fictional character. A composite of the abuses and suffering that many immigrant women undergo daily, because of norm-value systems that has followed them to this country.

Available Resources

Attorneys who, while not familiar with the plight of immigrant women, who seeks to assist, can find help in some of the resources listed below:

  1. Legal aid organizations including, but not limited to: Legal Services of Northern Virginia, Legal Aid Society of Eastern Virginia, Central Virginia Legal Aid Society, and Blue Ridge Legal Services.
  2. Immigrant legal service organizations including, but not limited to:  Ayuda, Capital Area Immigrant Rights Coalition, Hogar Immigrant Services, and Just Neighbors.
  3. Domestic violence organizations, including, but not limited to: The National Domestic Violence Hotline.

LGBTQ+ CLIENTS IN TODAY’S LEGAL CASES

                                                         by Julie Currin, Esq.

        To begin to learn more about this diverse community, I did several immersion exercises.  I took a few days to binge-watch all the current episodes on the NETFLIX series “Queer Eye”.  In this series, five fabulous gay and/or transgender men help a nominated “hero” take a step forward in self-esteem, fashion, grooming, and furnishings.  Recently, they worked in Japan which added a new cultural dimension to the prior stories based in Philadelphia, PA,  a couple of Georgia cities, and a few more places in the Southeast United States.  I also read a Gender memoir by Jacob Tobias called “Sissy” about growing up gender non-conforming and nonbinary.  I attended a web-based continuing legal education program for LGBTQ+ Visibility Week on Seminal LGBTQ+ legal cases in the U.S. and U.K. and I did online research for tools used by clinicians with this population.  

        My study was designed around several same-sex marriages that were just now beginning the process of divorce in Virginia.  I wanted to find out the historical background of our clients to include family makeup, religiousness, coming out narrative, activism, trauma assessment (PTSD), basic alcohol screening and where indicated, suicide risk.  Then I wanted to answer two questions for use by the law firm where I am employed.  First, did the client feel accepted and treated with respect?  And second, how did the client feel the legal system was working for them as these are some of the first same-sex marriages interfacing with Virginia’s divorce laws.  

        Same-sex marriage became legal in Virginia on October 6, 2014, in the U.S. Supreme Court’s refusal to hear an appeal in the Fourth Circuit Court of Appeals case of Bostic v. Schaefer.  Yet it wasn’t until February 2019 that the Virginia General Assembly passed a bill to explicitly and legally include surrogacy contracts for same-sex couples.  In these intervening years, no changes were made to divorce law in the Commonwealth that might specifically address specific LGBTQ+ case differences.  So how is the old law working for same-sex couples in divorce?

        D, a 25-year-old white male who identifies as homosexual was born in Georgia.  He described his childhood as “traditional” although his parents were unmarried.  He attended church in his early years but did not feel his family held any strong religious beliefs.  He spent developmental years 6-12 in a group home along with 2 maternal brothers and one sister due to his mother’s mental health issues.  It was only after many narrative questions, when an open-ended catchall inquiry was made, that molestation by a maternal uncle at age 4-5 and by a teenage boy at age 6 was disclosed as “maybe impacting his sexuality.”  D is in the Navy and did not self-identify as gay until approximately 16.  He hid this since he attended a “ghetto” school which he defined as a lot of fights, nearby gunshots, and violence.  He first came out at 19 and first told his father at the age of 20.  He waited longer because his Dad had made unaccepting comments about a lesbian step-sibling and he felt he would be kicked out of the house.  He told his father when he was leaving for boot camp and so was out of the house.  His father was upset and took months to get over it.  His mother was more accepting, as were a younger half-brother and a maternal aunt.  He does not feel that his Navy career has been impacted by this life choice.  He presented as very easy-going, described himself as a “clean freak” who generally laughs off or lets slide offensive gay slurs or jokes.  He did not scale for alcohol abuse, briefly overusing at home between 20 to 22, nor for PTSD or suicide risk.  He does not engage in activism.

         The AUDIT-C or Alcohol Use Disorders Identification Test-Concise was utilized for all participants.  I also used the PCL-C or PTSD Checklist – Civilian Version and standard questions about suicidal ideation, any prior attempts, and current thought patterns.

        The main reason D feels his marriage did not last had to do with his mate not making the effort to be included in D’s extended family and feeling financially taken advantage of.   He did not feel in any way judged by the staff at our law firm nor did he feel that the legal system was working any differently for him than a straight couple.

        Having been the attorney working with D, these were not surprising results.  However, the late in the interview disclosure of youthful sexual exploitation made me aware of how important open-ended catchall questions can be in a narrative approach.

        My next participant was E, a 32-year-old Black Navy man born in Kingston, Jamaica.   E told me that childhood abuse was normalized in Jamaica during his early years.  He described being beat with paddles and belts.  He felt his father beat him more because he liked boys and tried to “beat it out of him” including hitting him with tree limbs, throwing stones at him, and punching him in the stomach.  He recognized his sexuality early at age 5 or 6, had his first experiences about 11 or 12, and at the age of 14 came out and was rejected by both parents initially.   One sister was accepting.  He feels he had to hide his inner self and be hypermasculine which caused great psychic stress culminating in two suicide attempts in his early twenties. Even now, E experiences psychosomatic reactions.  He said it is not easy being gay and Black, that it is stressful.  He struggles with self-acceptance and feeling worthy of God’s love as a result of his family upbringing and religious indoctrination. These are still impactful.  He does not abuse alcohol.  He feels African-Americans are less tolerant of homosexuality and that the church is hypocritical.  Because he is in the military, he continues to have to restrain his normal reactions to gay-bashing and feels that overt instances of public discrimination have increased under the current President.  He has symptoms of PTSD.  He uses exercise as a coping mechanism.

        E is married to a Muslim born in Senegal who has not come out yet to his family.  He feels two masculine gay men have a harder time making a relationship work like his marriage.  Although they began a divorce, E and his spouse are pausing in that process to try to work things out.  He felt accepted and not judged coming to our law firm for help.  He does not perceive at this stage of litigation that the legal system has treated his case any differently.  He would like me to interview his spouse.

        S is a 47-year-old white Bisexual female born in California.   She is highly educated and very verbal.   She describes herself as a “nerd jock.”  She has a degree in Psychology and teaches middle school health science/gym.  S has had significant relationships with men but leans more toward women.  She too has a military background.  She felt the need to hide her sexual identity when stationed overseas and when teaching in rural Virginia.  She feels accepted at the school where she teaches now.  She did not have a strong religious upbringing.  She did not screen in for alcohol abuse.  She does have symptoms of PTSD, including memory problems when highly stressed, anxiety and depression.  

        S married cross-culturally, an Asian woman with medical issues and raging tantrums.  After 9 years together and despite couples counseling and in-home separation, the parties are in an acrimonious divorce at this time.  There are accusations of adultery and domestic violence.  S feels the Courts treated her request for a protective order differently than in male/female cases.  Although she felt accepted at our firm, she feels her case is not progressing in the same way traditional couples divorcing would.  She feels the length of time it’s taking is traumatic and wonders if her attorney is making the same efforts, filing the same paperwork, pushing as hard in her case as in straight divorces.  She is interested in reading the final study paper.

        I had hoped to include one more female participant in this first grouping but was not able to schedule the interview before the deadline for this paper.  Nor do I include the first interview I reported because it was not as in-depth and did not have the benefit of the tools used in these three cases. Nor was I as immersed in LGBTQ+ issues at the time that I met with the first person.  

        As the first foray into these issues suggests, there is much we can learn about treating our LGBTQ+ clients with understanding and respect.  The truth is that we are “counselors” of law and when we identify issues that impact our client’s directly and potentially their cases, we have a duty to advise.  This could go so far as to take the form of a referral for professional counseling assistance but at minimum, we should be including additional questions in our intake documents and interviews to be better stewards of equal justice for all.

Julie Currin, Esq., is an attorney in Virginia Beach.

Exercise: The Cure For Stressed Out Lawyers

By Connie Morrissey Ruiz

        “Exercise and application produce order in our affairs, health of body, cheerfulness of mind, and these make us precious to our friends …” Thomas Jefferson.

These words were true when said by Mr. Jefferson but resonated from times past with the words of Hippocrates who said:

        “If we could give every individual the right amount of nourishment and exercise, not too little and not too much, we would have found the safest way to health.”

As active attorneys today scramble to operate in the new Covid-19 environment, the ordinary pressures of too much to do in too little time are aggravated by isolation in the pressure cooker of quarantine/lockdown rules.  Existing health issues, physical and mental, can become inflamed unless addressed by an effective response.

Exercise can contribute to a preventive strategy in personal health planning.  It also serves to maintain good physical and mental health as part of health maintenance planning.  Equally important, it has already been established that exercise can play a major role in various treatment regimens for existing diseases and injuries.

According to Dr. Robert Sallis, a family and sports medicine physician at Kaiser Permanente:

        “Regular exercise may be the most powerful medicine we have – more powerful in most cases than any pill or procedure.  We literally have thousands of years of data, going back to Hippocrates, that exercise has a powerful therapeutic effect.”

In February, the 2018 Physical Activity Guidelines Advisory Committee submitted its Scientific Report to the US Secretary of Health and Human Services. The report summarized the scientific evidence on physical activity and health and was used to develop the second edition of the Physical Activity Guidelines for Americans.

Treatment of Type 2 Diabetes provides one example.  For years it was common for doctors to prescribe Metaformin; considered the standard treatment.  Metaformin lowers blood sugar levels by improving the way the body handles insulin which is a benefit for both those with Type 2 Diabetes as well as those who are pre-diabetic.   This drug is listed on the World Health Organization as an essential medicine deemed effective and safe.  However, doctors were amazed at the results of the Diabetes Prevention Program after a lifestyle of exercise and diet outperformed the drug Metaformin in a head-to-head comparison over 15 years, preventing people at high risk for diabetes from developing the disease.   Additional information on exercise treatment benefits can be found in the article Exercise Is the Answer for All That Ails You by Markham Heid.[1]

The impact on mental health cannot be overstated.  Studies have consistently shown that exercise can also enhance memory, improve attention, alleviate depression and equally important, can ward off neurodegenerative disorders like Alzheimer’s and Parkinson’s disease.  

The same endorphins that are released with exercise to make one feel good also stimulate the growth of new brain cells and help prevent age-related decline.  As explained in the article This Is What Exercise Does to Your Brain by Dana G Smith[2]:

        “Scientists are starting to discover how exercise increases levels of important hormones and neurochemicals that help forge new connections between brain cells, and may even lead to the birth of neurons in an area of the brain called the hippocampus, the organ’s mood and memory hub.”

If Exercise were Classified as a Drug, It Would Be Called A Miracle Drug

Exercise is the ultimate “work smarter not harder” to be healthier for day-to-day wellness essential to our daily performance in our jobs and careers.  It can strengthen immune systems to combat Covid-19 as well as the yearly flu and cold season and to prevent and/or treat diseases that we all long to prevent in our aging years like cancer, diabetes, and Alzheimer’s. Here are some stark statistics in 2020 from Research America:

  • More than 78 million adults (or 35.7%) and more than 12.5 million children (or 16.9%) in the U.S. are classified as obese.
  • By increasing the risk for cardiovascular diseases, Type 2 diabetes, and most cancers, obesity contributes to 1 in 10 deaths, making it the second leading cause of preventable death in the U.S.
  • Obese individuals with diabetes or high blood pressure have a 26% greater risk of death than healthy-weight individuals.

Not enough attention is paid to the fact that the widespread adoption of effective exercise programs by Americans, combined with a proper diet plan, could result in a major reduction in health care costs associated with funding levels in Medicare and Medicaid, not to mention the private insurance market.  Americans have become too accustomed to taking pills as the first answer to nearly all health exigencies and doctors have been incentivized by pharmaceutical manufacturers to push their drugs.  Exercise, the miracle drug, is the elephant in the room.

How to Get Started: Begin With An Honest Assessment.

Are any of the following self-descriptive:

  • lethargy
  • irritability
  • depression
  • health issues
  • increasing dependency on pharmaceuticals and/or alcohol
  • strained personal and/or professional relations?

The answers should be honest as the information need not be shared with others.  The assessment should indicate the extent exercise can be a solution to any of these.

How quickly can an effective exercise program be incorporated into your lifestyle?  The short answer is immediately.  Any exercise is better than none.  Even desk-bound, standing up and walking around regularly, doing push-ups even against the wall can provide a start.  If gyms survive the Covid-19 shutdowns, there may remain multiple options available with qualified fitness professionals to guide the development of tailored exercise programs.  Multiple self-administered and group-led exercise programs also can be found online.

If a busy professional is unable to dedicate the World Health Organization  recommendation of 2.5 hours a week for exercise as a preventive health strategy (far short of the 2 hours each day adopted by Mr. Jefferson in his regimen), there are emerging alternatives available to achieve real results in record time.  One such method utilizes electronic muscle stimulation (EMS).  

EMS initially started gaining recognition as a means of enhancing sports training starting in the 1960’s when the Soviet sports scientists were using it with elite athletes and claiming force gains up to 40%.  The first EMS approach was with self-adhesive pads used both for rehabilitation as well as for strength performance in athletes.  However, since 2007, EMS has transitioned to Whole-Body EMS so when combined with an exercise routine lead by a certified Personal Trainer specialized in working with the technology, a 20-minute workout can elicit enough muscle contractions to be comparable to a traditional 90-minute workout.  Since then, the whole-body EMS approach spread thereafter to fitness clubs in Europe and has been made available to the public in multiple countries, now including the United States.

EMS represents the new wave of efficient exercise opportunities for Americans to ward off multiple medical/mental health issues and to promote overall well-being. One US provider of EMS technology is Personal20, owned and operated by this author, located in Herndon, Virginia, for time-limited professionals, with an additional location being planned.  There are a few other providers of the EMS technology and the industry is expected to grow.

Specifically, the development of the evidence-based P20 Method provides a whole-body workout with little pressure on joints.  By sending electric impulses to the muscles through the motor nerves, while doing simple exercises, they stimulate even weakened muscle connections.  Both slow and fast-twitch muscles are activated from the start so that a more intense, although low impact, level of training is received. On the Personal20.com website, there are multiple Google reviews from professionals, touting its effectiveness, including a review by the Chief Legal and Compliance Officer at Tata Communications.

More recently, EMS has been successfully introduced in clinical settings to help patients requiring physical therapy and chiropractic services. Promising results are emerging for those suffering from back pain, hypermobility issues, injury rehabilitation, and even pre-surgery strength development, especially for joint replacement/surgery.  

Summary

Attorneys are not excluded from the physical and mental health afflictions impacting all Americans.  Moreover, the pressures of stress and time limitations increase the chances of serious illness.  Knowledge about reasons and opportunities for change comes first.  Then taking the first/next step follows.  Addiction to the miracle drug of exercise is one addiction everyone can get behind.  The potential for improved health is unlimited and the potential for lowered healthcare costs is enormous.  Today is not too late to start.

About the Author

Ms. Ruiz is a co-founder of Personal20 EMS Studios and the Vivafit Women’s Boutique Fitness Franchise.  She is qualified as an EMS Specialist, Health and Fitness professional with several present and past certifications including:  EMS Certification by E-Fit, XBody, and Miha Bodytec; also American Sport & Fitness Personal Training, Michael King Pilates (formerly Pilates Institute),  AFAA and ACSM Group Fitness, Les Mills Body Pump, RPM, and Body Combat.  Ms. Ruiz has been invited to speak at national and international fitness conferences such as those sponsored by the International Health, Racquet & Sports Club Association (IHRSA), the ForumClub International Congress & FIBO Global Fitness.

For questions and additional information, she may be contacted through the website Personal20.com, or directly at constance@personal20.com.


Equal Justice and Legal Services for the Poor: An Elusive Goal

by: Alexander Hewes[1]

        “Equal justice under law is not merely a caption on the facade of the Supreme Court         building, it is perhaps the most inspiring ideal of our society. It is one of the ends for which our entire legal system exists…it is fundamental that justice should be the same, in substance and availability, without regard to economic status.” 

– Lewis Powell, Jr., U.S. Supreme Court Justice

The National History:

        Organized civil legal aid for impoverished citizens in America can be traced to the end and immediate aftermath of the Civil War. The Freedmen’s Bureau, first known as the Bureau of Refugees, Freedmen and Abandoned Lands, was established by an act of Congress on March 3, 1865, two months before Confederate General Robert E. Lee surrendered to Union General Ulysses S. Grant at Appomattox Court House.  It was intended to help millions of former black slaves and poor whites in the South in the aftermath of the Civil War. The Freedmen’s Bureau established schools and offered legal assistance, while also providing food, housing and medical aid.

        The first legal aid society, a private charitable program, was established by lawyers in New York City in 1876 as the Legal Aid Society of New York. Its initial purpose was to defend the rights of German immigrants who could not afford to hire a lawyer. In 1890, a large donation from the Rockefeller Family allowed the organization to expand the reach of its services to include individuals from every background.

        In the following decades, the legal aid movement spread in the urban centers of the United States and, by 1965, virtually every major city had some kind of program. At that time, there were nearly 300 organizations employing over 400 full-time lawyers. Yet, there was no national program. Many legal aid programs were private corporations. Others were sponsored by bar associations, relying heavily on the donated time of lawyers. Some were part of governmental units, usually municipalities. Some were part of other social agencies.

        The federal Legal Services Program began in the Office of Economic Opportunity in 1965, as part of President Lyndon Johnson’s War on Poverty. The OEO created a structure that was based on the civil legal aid model and on demonstration projects that had been operating in New Haven, New York, Boston and Washington, D.C., funded by the Ford Foundation in the early 1960s.  Yet the development and progress of Federal legal assistance programs for the poor has been uneven with differing levels of resistance unrelated to the underlying need to provide services.

        They shared some common characteristics.  First, the resources were impossibly inadequate.   With limited resources and a high number of eligible clients, legal aid generally gave perfunctory service to a high volume of clients.  Going to court was rare.  Appeals were even more rare.  Legal aid had little effect on those it was intended to serve and the client population as a whole.

        As it developed, the federal Legal Services Program took cues from the pioneering work of the NAACP and its legacy of fighting legal battles to win social justice for African Americans that began in 1909.  The architects of the federal legal services program realized that the law could be used as an instrument for orderly and constructive social change as a supplement to what was being achieved by lawyers for the civil rights and civil liberties movements.  

        Clint Bamberger, the first director of the Legal Services Program, told the annual meeting of the National Legal Aid and Defender Association in 1965 that “Lawyers must be activists to leave a contribution to society. The law is more than a control; it is an instrument for social change. The role of [the] OEO program is to provide the means within the democratic process for the law and lawyers to release the bonds which imprison people in poverty, to marshal the forces of law to combat the causes and effects of poverty.”

        A year later, Bamberger told the National Conference of Bar Presidents: “We cannot be content with the creation of systems of rendering free legal assistance to all the people who need but cannot afford a lawyer’s advice. This program must contribute to the success of the War on Poverty. Our responsibility is to marshal the forces of law and the strength of lawyers to combat the causes and effect of poverty. Lawyers must uncover the legal causes of poverty, remodel the system which generates the cycle of poverty and design new social, legal and political tools and vehicles to move poor people from deprivation, depression, and despair to opportunity, hope and ambition.”

        Although many legal aid clients received public assistance prior to the mid-1960’s, no effort had been made to challenge questionable policies adopted by agencies providing such assistance – i.e., no “welfare law” had been developed. Similarly, what became known “housing law,” “consumer law,” “health law,” and the like did not exist.

Virginia’s History

        Virginia’s history of providing legal services to the poor followed an organizational path parallel to national history.  Before 1964, the majority of the legal needs of the poor were addressed by volunteer lawyers or private charitable organizations without state or national coordination.

        As early as 1906, the then-named Associated Charities of Richmond (became the Family Service Society and then Family Lifeline) had a legal department whose mission was to enforce the laws for the protection of women and children.[2]  Local bar associations also maintained legal aid programs, but these were all-volunteer and only provided a fraction of what was needed to address the legal needs of the indigent.  

        Before 1964, the only bar association in Virginia with a formal pro bono program was the Arlington Bar Association which has operated a pro bono referral program since the early 1950s.  The population density in that County generated enough foot traffic to make the program practical but the same demographics obviously did not exist in many parts of the Commonwealth and the rural poor were particularly short-changed on legal services.  This was a likely reason for the shortage of formal pro bono programs before the 1960s.

        Funded by the OEO, at least seven legal services organizations in Virginia were established in the late 1960s and early 1970s.  Yet the organized delivery of legal services to the indigent in Virginia was not a top-down development initiative by the Office of Economic Opportunity or Legal Services Corporation.  The Commonwealth’s first legal aid organization, the Legal Aid Society of Eastern Virginia, was established after the Norfolk Bar Association  applied to the OEO for a grant in 1996 which it used to establish what was then called Tidewater Legal Aid.  A separate example of a ground-up initiative came with the establishment of what is now the Legal Aid Justice Center (LAJC).  The forerunner to this organization was rooted in a pro bono partnership between University of Virginia law students and local attorneys who came together to attempt to meet the unmet legal aids of low income citizens in the area.  They formed Charlottesville-Albemarle Legal Aid, which became a formalized legal aid program in 1967.

        In addition, the time period from 1964 to 1982 also saw the emergence of the first clinical education programs at Virginia law schools.  Although the principal motivating factor behind this development was the students’ need for real-world experience, the clinics had the collateral benefit of providing legal services to indigent clients.  The first such program was the Alderson Legal Assistance Program established in 1968 at Washington and Lee School of Law, which provided legal services to female inmates at the Alderson Federal Correctional Institution (now the Alderson Federal Prison Camp).  The second legal clinic in Virginia was organized by John Levy at William and Mary School of Law in 1976.

        Despite these early initiatives, a 1991 Virginia State Bar and Virginia Bar Association Joint Committee to Study Legal Services in Virginia discovered that 84 percent of the Commonwealth’s poor lacked the benefit of counsel when confronted with a serious legal problem.   Since the mid 1990’s dozens of Virginia law firms have committed resources to the development of programs encouraging and promoting pro bono support, from fully integrated internal projects to fellowships and internships, as well as collaborations with outside groups, bar associations and law schools.

Virginia Current Day.

        Today, there is a plethora of alternative delivery systems for legal services to the poor that are either sponsored, or recognized by the VSB.  The VSB regularly updates its lists of regional and statewide programs that have been approved as official Qualified Legal Services Providers, as well as contact information for their pro bono coordinators. 

        The VSB website also links to the “JusticeServer” which was developed in collaboration with the Greater Richmond Bar Foundation, the Legal Aid Justice Center and Central Virginia Legal Aid Society to leverage the latest technology in providing pro bono legal services to low income clients.  This all-inclusive, state-wide case management and referral system enables private attorneys to accept and work on pro bono cases from their own computers. Each attorney can create a confidential profile, view pro bono opportunities available in their practice area and location, and find the resources to assist with handling the legal matter.

        Also, the VSB provides free webinar pro bono training and the Virginia CLE offers free content for attorneys dedicated to filling the justice gap by providing pro bono representation to their fellow Virginians.  Separately, the VSB maintains a list of Military & Veteran Pro Bono Projects intended to serve veterans.

The Continuing Shortfall

        With this history of accomplishment, it is disheartening to note that when Governor Ralph Northam recognized October 2019 as Pro Bono Month, he reported that more than 80 percent of the civil legal needs of the poor in Virginia go unmet and that one in eight Virginians were then eligible for free legal services from Virginia’s legal aid programs.   It is certain that there is a disparate impact on the rural poor who have even more limited transportation and communication options.  It is clear that much more needs to be done.  Expanded broadband coverage and internet access, coupled with an ethically-guided use of artificial intelligence programs can provide some relief but infrastructure and formal organizations can take things just so far.  Just as Virginia’s history of innovative local leadership has depended on the voluntary efforts of lawyers in each community, so too the still unmet needs of the indigent require more effort from lawyers capable of providing those needed services.

        The VSB’s Rule 6.1 of the Rules of Professional Conduct creates an aspirational goal that Virginia lawyers take professional time – at least 2 percent per year – to do pro bono publico legal services.   With an attorney that generates 1800 billable hours per year, that amounts to a total of 36 hours; hardly a burden.

        While a greater effort is required it is worth pointing out that the needs of the poor should not be used to fuel political agendas of any kind.  If we are going to come close to the standard described by Justice Powell, quoted above, it will require the cooperation of all and a unity of purpose.


[1] Mr. Hewes is a former Trial Attorney with the U.S. Department of Justice; with prior service in private practice and on the Staff of the United States Senate Committee on Banking, Housing and Urban Affairs.  He is an author and lecturer on various legal issues and is currently in private practice in Winchester, Virginia, also serving as a member of the Invictus Editorial Board.

[2] Mary Frances Shelburne, A Brief History of the Family Service Society of Richmond, Virginia, WILLIAM & MARY, 1932, ret. 14 Dec. 2017.

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