Supporting our neurodivergent clients

What can we barristers do to better serve our neurodivergent clients? The answer will, of course, depend on the individual but here are four headline suggestions which can be helpful in every case: (1) ask your client what support they need; (2) challenge your default ways of working; (3) focus on clear communication; and (4) make the process as simple as possible.

Readers should be aware of two excellent resources. Firstly, the Equal Treatment Bench Book (the ‘ETBB’) is an extraordinary resource now running to some 550 pages of practical guidance about how to include all users fairly in the court process. The book’s target audience is judges, and it makes detailed suggestions on all aspects of the process including case management, how communications from the court should be expressed, changes that can be made to the hearing structure, and so on. Secondly, The Advocate’s Gateway produces a series of ‘Toolkits’, including one focused on autistic witnesses and defendants which give advocates practical advice on ensuring participation in a hearing, such as how questions should be framed (see also ‘Techniques for questioning vulnerable lay participants’, Penny Cooper et al, Counsel March 2023).

There is no similar resource directed specifically at other aspects of barristers’ practices. I suspect that many barristers’ experience in that regard will be like my own – improvement coming (if at all) through trial and error. However, a lot of the advice in the ETBB can be extended to our own working practices.

Neurodivergent clients may have a disability under the Equality Act 2020, and many of the steps suggested below might be ‘reasonable adjustments’ of the kind required by that Act. However, the focus here is on best practice rather than on legal obligations.

1: Ask your client what support they need

In the court setting, the ETBB advises that judges should engage early on with litigants to establish what support they need. In some courts that should be part of the first case management hearing, and in others there are ‘ground rules hearings’ with the specific objective of ensuring that vulnerable parties and witnesses can participate fairly.

According to YouGov research commissioned by the Solicitors Regulation Authority in 2019:

‘One of the standout findings, for solicitors and other professional service providers, is that many disabled people are not proactively asked if they need reasonable adjustments at first contact, or only receive adjustments once an issue has occurred. This research has therefore identified that the needs of disabled people should proactively be sought and assumptions not simply made about what help or assistance they might or might not need.’

Assumptions are particularly widespread when it comes to neurodiversity. A familiar example is the notion that dyslexia is ‘only about spelling’, whereas it can be associated with a range of challenges from working memory through to organisation. The ETBB has sections describing the most common forms of neurodiversity, but even that can only ever be a starting point. Each person is different.

2: Challenge your default ways of working

We all have default ways of working – developing our own sense of when a conference is necessary, what can be quickly conveyed by email etc. My second suggestion is to question the way you would usually do things. Again, it is helpful to draw some parallels with the court process. Judges are advised to think about whether the individual might find one kind of hearing (face-to-face, telephone or video) easier than another. Hearing timings could be changed, for instance by adding more breaks or by adopting a different order. Other examples include the following:

• Especially if there is no instructing solicitor, introduce your client early on to a friendly clerk with an understanding of their needs, and stress that the clerk is always available to help.
• Some clients will prefer to discuss the case and receive advice orally, for example if they have difficulty processing written information. Others will have the opposite preference, for example because they have memory difficulties. A third possibility would be to ensure that any oral advice is followed up with a record in writing.
• In the course of researching this piece, a colleague told me of one adjustment he had made – breaking what would have been one long conference down into multiple short conferences. That could be a useful adjustment, for example, for a client who has difficulty concentrating.
• Many of us have become used to firing off emails whenever we have questions. Some find that confusing, difficult to manage, or worrying (why is this being raised now?). An alternative would be to fix a conference in advance.

3: Focus on clear communication

Another major theme of the YouGov research was the need for lawyers to communicate clearly. The ETBB contains many suggestions on this front. I will start with the more obvious ones, although even these are often easier said than done:

• Use short sentences, simple words, and simple punctuation.
• Avoid legal jargon – use names rather than ‘claimant’ and ‘defendant’.
• Avoid using the third person.

‘I think you will probably win your case’ is much clearer than, ‘In my view the Claimant’s prospects of success are above 50%’.

Layout and presentation of written documents can also make a big difference. It can be helpful to make good use of sub-headings, bullet points, larger text size or greater line spacing.

In some cases it is also worth asking yourself whether you really need to share a particular detail with your client. For a person who struggles to process large amounts of information, having the important points delivered clearly is highly valuable, but it might be counterproductive if you then start explaining the intricacies of a legal debate which could arise at the hearing.

4: Make the process as simple as possible

Litigation can be burdensome for anyone, but it is all the more challenging for clients who struggle with organisational skills, timekeeping, memory, or communication. The ETBB contains some useful suggestions for judges, including making orders that deal with a small number of points at a time (rather than one single order right up to trial), spelling out in writing what actions need to be taken, or giving longer deadlines. Examples of steps which barristers can take include:

• Explain very clearly what your client needs to do. For example, identifying precisely which documents need to be provided to you, even if you think that is obvious.
• Discuss timeframes and organise your own work accordingly. For example, sending out a Skeleton Argument for sign-off a couple of days before it is due may not be appropriate.
• Email regular updates. Even an email explaining that nothing has happened since you last spoke a month ago and you are still waiting for the court to make a decision might help to remind your client of the process or set their mind at rest.

The author Tristan Jones would like to record particular thanks to John Horan of Cloisters for his comments on this theme.

Neurodiversity and access to justice

The word ‘neurodivergent’ is used to refer to people whose way of thinking is different from those who are ‘neurotypical’. There is no fixed list of who is considered neurodivergent, but it would commonly include those with autism, dyslexia and ADHD. The word is sometimes also used to refer to people who think differently because of depression, anxiety or other mental health conditions – that is not how I use the word in this article, although many of these adjustments could also be helpful for such clients, as well as when working with neurodivergent colleagues, whether barristers or solicitors.