Lawyers and Autistic Defendants

In The Politics of Autism, I discuss interactions between the justice system and autistic people.

Caliman, C. R., and C. M. Berryessa. 2025. “ Legal Defense of Autistic Defendants in the United States: A Qualitative Analysis of the Experiences of Legal Professionals.” Journal of Social Issues 81, no. 4: e70034. https://doi.org/10.1111/josi.70034. Abstract:

Autistic individuals encounter distinct barriers within the criminal-legal system, such as misinterpretations of their behaviors, a lack of accommodations, and systemic biases. Despite growing understanding of these challenges, research on how defense attorneys understand and advocate for autistic clients remains limited. This study explores how defense attorneys in the United States conceptualize autism and apply neurodiversity-informed strategies in their advocacy. Semi-structured interviews with 31 defense attorneys revealed that while most attorneys view autism through a medicalized lens, they acknowledge the need for better strategies to secure accommodations in court. Findings suggest that attorneys often rely on expert testimony and recognize the courtroom as primarily designed for neurotypical individuals. Gaps in training and understanding about neurodiversity may hinder effective defense strategies and limit access to justice for autistic defendants. This research highlights the urgent need for enhanced legal training and systemic reform to improve representation and legal experiences for autistic individuals.

From the article:

When applied to the representation of autistic clients, the assumptions underlying the adversarial model, such as a shared understanding of rational legal strategy, communication norms, and courtroom participation, can pose significant challenges. From a procedural perspective, defense attorneys must provide effective counsel by constructing the best possible defense strategy, negotiating plea deals when appropriate, and ensuring their clients are competent to stand trial. This requires legal expertise and an understanding of their clients’ ability to participate in legal proceedings (Smith 2013). Autistic individuals may experience sensory overload, difficulty with language, and distinct social communication styles that affect how they receive and process legal information (Faccini and Burke 2021; Taylor et al. 2009). For example, a client may nod in agreement while masking confusion or distress, leading attorneys to overestimate comprehension and proceed with legal strategies the client does not fully understand (Cooper et al. 2020).

In response to these limitations, alternative frameworks such as therapeutic jurisprudence have emerged to expand how legal professionals conceptualize their roles. Rather than focusing solely on legal outcomes and adversarial performance, therapeutic jurisprudence encourages attorneys to consider how legal processes and strategies affect their clients' emotional, psychological, and cognitive well-being (Wexler 2004; Winick 1999). For defense attorneys working with neurodivergent individuals, this might mean advocating for courtroom accommodations, using adapted communication techniques, or helping secure external supports that foster more accessible legal participation (Berryessa and Caliman 2026). However, the extent to which attorneys should actively intervene in shaping their clients’ legal experience remains a debated ethical issue.

 

Navy Hires Special Ed Lawyers

In The Politics of Autism, I discuss the day-to-day challenges facing autistic people and their families.  As many posts have discussed, the challenges are especially great for military families.

Rose L. Thayer at Stars and Stripes:

The Navy has hired two special education lawyers as part of a three-year pilot program to expand support for service members enrolled in the Exceptional Family Member Program.

The two civilian attorneys, who have a background in special education law, began in November to assist families trying to get services for special needs children through federal laws put into practice differently in school districts across the country, said Lt. Cmdr. Nick Stampfli, legal assistance department head at the Legal Services Office for Mid-Atlantic Region. Navy families can find themselves at a disadvantage when it comes to special education because frequent moves mean they are regularly entering new school districts with different rules and resources.

“We just really want to level the playing field with what a family that doesn’t move often gets,” he said. “We do see a direct impact on readiness when a family is taken care of and sailors are not worrying about a problem at home, especially a problem with their kids. It’s much easier to deploy.”

The Defense Department’s Exceptional Family Member Program, known as EFMP, is a mandatory enrollment program run by the service branches for military members with an immediate family member, usually a child or spouse, who has special medical or educational needs. The program is meant to assist during the orders assignment process to make sure service members are sent to locations where they can access necessary resources.

Autism and Family Court

In The Politics of Autism, I discuss interactions between the justice system and autistic people.

Kelly C. Wall and Karen Markle write at The Legal Intelligencer:

In high-conflict cases with ASD children, like divorces or custody disputes, it is common that the parents do not want to cooperate with each other and refuse to identify a lead parent (a decision maker) on how to raise the child. This parent is more likely to coordinate special services for the child, doctors' appointments, transportation and therapy. The court will want to know who this decision maker is, which parent has the most stable household and which parent can provide consistency. Conflict occurs when the parents cannot agree on a plan for a number of issues for their child. These include, but are not limited to: discipline, therapeutic treatments and frequency, medication and dosage, diets, education (traditional classrooms or special needs classes) and routines (how often is the child switching between homes and parents).
...
Regardless of the role the attorney is playing, the attorney's representation is all encompassing and he or she has a duty to present a complete record, which will require knowledge of the ASD child's needs. As a representative of the client, it is incumbent upon the lawyer to understand all of these issues so that he or she can elicit this information during testimony and prepare the client to answer these questions. In complex cases, the lawyer can seek expert advice or interview the child's service providers for a better understanding of the child's need.

Delay and Deny: Special Education in the Bay Area

KNTV reports that school districts often try to deny special education services in the Bay Area:

There’s disagreements between families and school districts, and less than 1 percent of families request a due process hearing, and only 3 percent of them actually go to the hearing,” parent advocate Ann McDonald-Cacho said, citing CLA [California Legislative Analyst] statistics. “The numbers show that most families…don’t have the resources, they don’t know where to find a lawyer, they don’t know how they could possibly hire a lawyer in order to work out these disagreements,” McDonald-Cacho said.

McDonald-Cacho works at the Disability Rights and Education Defense Fund (DREDF), an organization founded to help families navigate the school system to get the education their children are entitled to.

...

The NBC Bay Area Investigative Unit requested records showing the amount of money spent on outside attorneys from 2010 to May 2013 for the three Bay Area districts with the most special education cases: Oakland Unified, San Jose Unified and San Francisco Unified.

The reports show Oakland Unified spent more than $850,000, San Jose Unified spent more than $551,000 and San Francisco spent more than $440,000 on outside counsel to deal with special education lawsuits.

Compare that to the roughly $22,300 a year it costs to educate a special needs student. The districts could have provided services to 83 students in that time period.

...

Sunnyvale mom Nancy Agaiby is just beginning her journey, getting ready to enter a due process hearing with the Sunnyvale Unified School District. Her 6-year-old son Andrew was diagnosed with ADHD, but Agaiby said she has spent the past school year trying to reach an agreement with the district about an appropriate education plan for her son.

“They’re not fighting to save money, they’re fighting a 6-year-old,” Nancy told NBC Bay Area. “One of the staff (members) told me this is protocol, to get turned down over and over until finally they allow you in.”

IDEA Fairness Restoration Act

A release from the Council of Parent Attorneys and Advocates:

Yesterday, on March 17, 2011, federal legislation was introduced to allow parents to recover expert witness fees in due process hearings and litigation under the Individuals with Disabilities Education Act.

The IDEA Fairness Restoration Act was introduced in the Senate (S.613) by Senator Tom Harkin (D-IA), Chair of the Senate Health Education Labor and Pensions Committee; Senator Barbara Mikulski (D-MD), and Senator Bernie Sanders (I-VT); and introduced in the House of Representatives (H.R. 1208) by Congressman Chris Van Hollen (D-MD) and Congressman Pete Sessions (R-TX).

As COPAA members are likely aware, in its Arlington Central School District v. Murphy (2006) decision the Supreme Court decided that parents who win/prevail in their IDEA cases cannot get expert witness fees under the provision in the law that allows parents who win/prevail to get attorneys’ fees. Although the legislative history to the IDEA fees provision clearly states that expert fees are covered the Supreme Court refused to consider that history.

COPAA has worked hard since that damaging decision was announced to obtain a legislative fix. Congressmen Van Hollen and Sessions have championed this issue for us in previous legislative sessions. This is the first bill time a bill was introduced in the Senate. COPAA is grateful to all of the members of Congress who are taking the lead on this important legislation.

The bipartisan IDEA Fairness Restoration Act will restore Congress’ original intent and make due process hearings more equitable and affordable for parents of children with disabilities.

Without the ability to recover their expert witness fees, few parents could afford to exercise their constitutional and IDEA rights to challenge denial of FAPE to their children by school districts.

This is because parents, who increasingly have the burden of proof after the Supreme Court decision in Schaffer v. Weast, must present admissible evidence about educational methodology, complex behavioral supports, medical issues, and other technical subjects. Only qualified expert witnesses can present this technical testimony and such testimony can easily cost many thousands of dollars, money that few parents have.

There can be no equal opportunity and access to a public education that is both free and appropriate unless all families of children with disabilities–rich, poor and those in the vast middle–can obtain an education on the same terms. Without the ability to recover expert costs, the due process playing field ceases to be level or fair.

From Senator Harkin's floor statement:

This IDEA Fairness Restoration Act clarifies Congress’ express intent that parents should recover expert witness fees, as they currently can do with attorneys’ fees, if they prove that the school system has wrongfully denied their child an appropriate education as defined by IDEA. By including ‘‘reasonable expenses and fees of expert witnesses and the reasonable costs of any test or evaluation which is found to be necessary for the preparation of the parent or guardian’s case’’ and reestablishing the right of judges to award such fees to parents who prevail in IDEA cases, as Congress intended, this legislation will level the playing field and restore the ability of low- and middle-income parents to be effective advocates for their children’s educational needs.

This legislation is an essential step for protecting the rights of students with disabilities and ensuring that all families, regardless of their financial resources, can advocate for and protect their children’s rights through due process.

Dubious Special Ed "Lawyer"

It is tough enough to contend with mediation and due process. Just imagine finding out that your lawyer is not what he seems. As the Washington Post reports, that's what happened to some DC area special-ed parents.

Into this close-knit world entered Howard D. Deiner, 53. He worked his way into the inner circle by listing himself as a lawyer on a number of Web sites that cater to special education parents, operating in the legal niche for families wanting to challenge the way public schools educate -- or fail to educate -- their children.

But Deiner wasn't licensed as a lawyer for much of the time he took those cases, according to court records, and to bypass that issue he allegedly once signed another lawyer's name on important documents. He lost several cases at a point in the special education process that is the bleakest and the most critical for parents.

....

Some associations wouldn't delete Deiner's name from their listings until Pete Wright, a nationally known special education consultant and lawyer who created the "Wrightslaw" Web site, http://www.wrightslaw.com, pressured them to do so after confronting Deiner.

"That someone would falsely hold themselves out as a lawyer to parents of children with a disability, that is about as bad as it gets," Wright said. "To put this on these parents, how self-centered can somebody be?"

Deiner remains listed on at least two Web sites for families with autism as a lawyer who might be consulted for help with school problems.