Suing Social Workers Under Section 1983: Prima Facie Case
Miers is Good at Something

Announcing: The Sociopathy Project

Let's face a fact that is not openly discussed enough among lawyers: A significant percentage of the plaintiffs have mental health issues. That is why many of them become plaintiffs in the first place.

This is especially so in the case of employment litigation.

Practitioners know the drill. In walks a client. The client is articulate and speaks in complete and compelling sentences about the horrible experience he or she has had at work. You explain the law to them as best you can. More likely than not, you practice in an employment-at-will state. Are they a member of a protected class? Was their adverse action? Did race, gender, age, perceived disability play a role?

The client marshals facts sufficient to persuade you that a prima facie case can be made. Listening carefully, you conclude that the employer is wrong, they've singled out your client for prohibited reasons. You read through the documents brought to you by your client, and suit is filed.

In the weeks and months to follow you notice things: The client refuses to cooperate with discovery, arguing with you about what is and is not relevant. You again try to explain the law, and anger without bounds is unleashed. Every call you make is wrong. Withdraw a claim without support in law or facts and you are met with accusations. The client demands millions to settle a case worth far less, and soon there are letters to the president, the FBI and demands even for press conferences. Soon your paralegal, secretary and associates begin to complain about the hours they spend with this one client discussing issues such as why he or she must sign their interrogatories. The cool calm and collected client you met at the intake interview is suddenly a ravenous black hole demanding answers to questions without answers and refusing to accept your counsel and advise.

Odds are you have stumbled into the embrace of a sociopath or person with a borderline personality.

So what do you do? Do you withdraw because the client's objectives have become repugnant? Do so and face the intevitable grievance and perhaps suit. Do you litigate the case to completion, papering your file so as not to become the latest target for the infinite wrath of a person with stripped gears?

Lawyers and judges don't talk openly about this. This is water cooler talk -- talk behind closed doors.

I can't say I am going to open the door here. But I have been searching in vain for continuing legal education material on how to cope with sociopathic and borderline clients. We expect to meet them in criminal cases, where mental health issues of one sort or another typically predominate; but nothing is said about these issues in cases.

So I've begun reading books on these issues. As part of the Sociopathy Project I will periodically review what I've read. Perhaps you will read them, too, and refer cases, published opinions, law review articles to me. I need answers. Since no one else seems to be offering any, I will find them myself.

First book? Benjamin Wolman, Antisocial Behavior (Prometheus Books, 1999). Wolman is a Ph.D. and heavy into Freudian analysis. I chose this book to read first because, frankly, it was short, and I wanted to avoid something too scholarly early in the project.

Bottom line: sociopaths lack conscience and are devoted solely to serving basic instinctual needs. The world is a mere instrument to their satisfaction. They can fit in and appear to conform to basic social norms, but they do so only for instrumental reasons: Most of us do not steal because we believe it to be wrong. A sociopath avoids theft because the consequences of detection are unpleasant.

Wolman gives quick anecdotal examples of sociopathic behavior. But these are scattered through impressionistic declarations of Freudian theories that are asserted rather than explained or analyzed. The book appears to have been written quickly, a sort of talk-show precise on why there are so many screwed up people in the world. He quotes police chiefs, news magazines and popular sources to write a sort of decline of the west plea for better parenting and moral standards.

There is nothing wrong with what Wolman has done. But not much right either. The book is a quick read and a good working definition of sociopathy. Wolman's written 40-plus other books. I may try another to see if this work is just a representative of a bad month at the keyboard.