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While the authenticity of all major mental illnesses has always been questioned by some, depression is perhaps the most vulnerable to such skepticism. Because everyone, at one time or another, gets "the blues," many see depression as an excuse for laziness or weakness of character. However, three New York legal cases decided in 2003 concerning civil litigation, administrative agency decisions and the disciplining of attorneys for misconduct demonstrate our courts' increasing willingness to consider depression not as an excuse, but as a mitigating factor in judging a person's behavior.

In BMG Music Publishing Ltd. v. Croma Music Co., 2003 U.S. Dist. LEXIS 20895 (SDNY), a breach of contract case, one of the defendants had failed to respond to the summons and complaint that the plaintiff had served on her, and the federal magistrate therefore found her in default. The defendant then sought to have the default vacated, claiming that constant and serious depression had caused her to neglect her everyday affairs and that she consequently had failed to open her mail during the time the lawsuit had been commenced. Although the magistrate had ruled against the defendant and allowed the default to stand, upon the defendant's appeal, the District Court found that the defendant may have shown the "excusable neglect" necessary to lift the default and send the case back to the magistrate to examine the extent of her alleged depressed condition.

In Diaz v. Wing, 302 A.D.2d 201 (1st Dept), Ms. Diaz and her family had been receiving public assistance and food stamps from the New York State Department of Social Services (DSS), when that agency learned that a member of her family had received income that Ms. Diaz had failed to report. Consequently, DSS sent a notice to Ms. Diaz requesting supplemental information regarding the family's income, indicating that her failure to provide that information could result in the discontinuation of her benefits. When the deadline for the information passed and Ms. Diaz did not comply, DSS discontinued her benefits.

Shortly thereafter, the agency held a fair hearing, during which Ms. Diaz explained that she had forgotten to return the form with the requested information because she suffered from "major depression" and anxiety, which caused her to frequently forget important matters and to become "easily overwhelmed." A specialist from a community organization helping Ms. Diaz testified as to her condition, saying she was "acutely depressed" and that she failed to respond to the agency's request because she was "medically unfit." The administrative law judge ruled that Ms. Diaz's condition did not constitute "good cause to excuse her lack of compliance under the state regulation, even though that regulation excused a recipient's non-compliance if it was due to a 'physical or mental condition.'"

On appeal, the Appellate Division, First Department reversed, finding that depression clearly constituted a "mental condition" under state regulations. Thus, the court found that because the plaintiff had produced uncontradicted evidence of her problems with depression, she had a legitimate excuse for having failed to comply with the agency's request.

In a third case, an attorney disciplinary proceeding, also heard by the Appellate Division, First Department (305 A.D.2d 7), a local attorney was charged with several counts of misconduct in violation of attorney disciplinary rules. Over the course of ten years, the lawyer had neglected several clients' cases and had used deceptive means to prevent the clients from discovering the neglect, including forging court orders. In one instance, the attorney had paid his client $60,000 of his own money to cover up his failure to collect rent arrears on the client's behalf.

The disciplinary committee, which originally heard the case, had recommended disbarment, despite the testimony of the attorney's psychologist, who explained that the attorney's conditions were the result of severe depression and a "deep seated fear of failure" stemming from an exacerbation of the pressures of his job.

The Appellate Division disregarded the committee's recommendation, explaining that the attorney's behavior demonstrated a gradually developing "pattern of avoidance," which did not involve the moral corruption of cases in which attorneys commingled clients' funds with their own, or deceived other attorneys, courts or clients for strategic advantage or personal monetary gain. The court mentioned that the $60,000 the attorney had paid to his client was the exact amount his client was entitled to receive had the attorney fulfilled his responsibilities. The court reasoned that because the attorney's misconduct obviously resulted from depression and avoidance, rather than greed, disbarment was too severe a punishment, and instead imposed a period of suspension.

These three cases demonstrate a willingness by the courts to consider depression as a matter of illness rather than moral or personal weakness. While the cases do not explicitly equate depression with disease, the courts give quite substantial weight to a party's depressed condition in mitigation of penalties, which would otherwise be imposed.

Furthermore, at least at present, the courts have not developed any specific rules or any threshold that must be met before consideration is given to a party's depressive state to mitigate a penalty or excuse behavior. Just as depression varies in severity—from a level requiring hospitalization to less serious dysthemia, which may result in inactivity, lack of motivation and avoidance—so too the courts have seemed to recognize that differences in the severity of the affliction cause people to act differently. So rather than measure, for instance, where on a scale of severity from one to ten the person's depressive state fits, the courts have based their rulings on whether the person is legitimately diagnosed as depressed and whether their particular state and symptoms could have caused the offending behavior and act as a mitigating circumstance.

The lines between mere sadness, depression and severe depression are gray and blurred. The courts nonetheless have recognized depression as an affliction that may explain a party's behavior. While the burden of proof appropriately is on the party introducing his/her depression, once depression and a reasonable nexus between the depression and the behavior, courts appear increasingly inclined to take this illness into consideration in issuing their rulings.