6.2 Trauma- and Violence-Informed Lawyering

Dusty Johnstone; Gemma Smyth

6.2 Trauma- and Violence-Informed Lawyering

Dusty Johnstone and Gemma Smyth

Introduction

This section summarizes some of the emerging approaches to trauma-informed lawyering. Violence-informed approaches have not had the same hold in a law practice with the exception of some Indigenous practitioners, and some who practice through feminist and critical race lenses. This lens is particularly important when considering the context of many externships; namely, legal context in which people are forced by the state to engage in a legal matter. This might include criminal law, social benefits, or immigration. The areas of law that regulate people’s lives create the conditions under which people must engage with law and, as such, frame how people must engage with it.

This section starts with some definitions and implications of a trauma-informed lens, then moves to some practical approaches to working with clients. Working in tandem with a violence-informed approach, trauma-informed lawyering has significant implications for how Western systems of justice operate.

Trauma-Informed Lawyering

American clinicians Katz & Haldar identify four characteristics of trauma-informed lawyering (Sarah Katz & Deeya Haldar, “The Pedagogy of Trauma-Informed Lawyering” (2016) 22 Clinical Law Review 359):

1) Ability to identify trauma,

2) Ability to adjust the lawyer-client relationship accordingly,

3) Ability to adapt litigation strategies, and,

4) Preventing vicarious trauma.

Juxtapose this definition with work by the Justice Institute of British Columbia which emphasizes relational aspects of trauma-informed lawyering:

“Trauma-informed practice (TIP)… is a way of working that emphasizes safety, trustworthiness, choice, connection, collaboration, strengths, skill building, and self-care.”

Trauma-informed approaches offer an important window into lawyering and justice system practices. As many researchers have observed, some of the behaviours exhibited by clients – particularly in areas of law disproportionately impacting people with low income – have some root in trauma experiences. Unfortunately, the legal system requires clients to behave in ways that are not easy (or might be impossible) for people who have experienced trauma. For example, asking a client to recount events chronologically, appear appropriately upset, recall specific facts, and so on, are all very difficult or perhaps impossible. While students are not in a position to change these aspects of the legal system, there are advocacy tips to help trauma survivors.

Working with Clients who have Experienced Trauma

Talia Kramer and Eliza Patten have written a helpful article on working with clients who have experienced trauma (see Talia Kraemer and Eliza Patten, “Establishing a Trauma-Informed Lawyer-Client Relationship (part One)” (October 2014) 33(10) ABA Child Law Practice). While aimed primarily at lawyers working with youth, the article sets out key strategies in trauma-informed lawyering, including:

establishing trust (due to the client’s impaired sense of safety)
amending the lawyer’s methods when interacting with the client (including amending interviewing strategies due to impaired memories, possible lack of focus, difficult presenting narrative), and
modeling positive relationships and a “trauma-informed stance” (including being transparent and clear, giving control to the client regarding key decisions, being reliable, proactively supporting a client, and being patient).

There are increasing numbers of helpful articles, blogs, podcasts, and so on – both academic and practice-oriented – that can help improve a lawyer’s trauma-informed approach.

Possible Challenges and Pitfalls

DIAGNOSING: In their study of trauma-informed education experiences with law students, Smyth, Rogin & Johnstone found that some students who had some training in trauma-informed lawyering tended to jump to ‘diagnosing’ a client. Keep in mind that the lawyer’s job is not to label or diagnose a client’s trauma.
KEEP OPEN OTHER EXPLANATIONS: While trauma-informed approaches can be helpful for clients experiencing various challenges in their lives, it is also not a “one size fits all” approach. Clients may have other mental health disabilities, addiction-related disability, cognitive impairments, or might simply be having a bad day.
KEEP IN MIND HOW THE CLIENT FRAMES THEIR ISSUES: It is generally unhelpful to tell a client they are “traumatized” unless they first open up that possibility. Some clients will not want to use the term “trauma” nor is it always cultural appropriate.
KEEP IN MIND THAT NOT ALL LAWYERS WILL ACCEPT THIS APPROACH: While greater numbers of lawyers are familiar with trauma-informed approaches, the ability for the legal system to accept its natural consequences varies greatly. Indeed, as Judith Lewis Herman wrote in “Trauma and Recovery: The Aftermath of Violence – From Domestic Abuse to Political Terror”, “The legal system is designed to protect men from the superior power of the state but not to protect women or children from the superior power of men. It therefore provides strong guarantees for the rights of the accused but essentially no guarantees for the rights of the victim. If one set out by design to devise a system for provoking intrusive post-traumatic symptoms, one could not do better than a court of law.” As one example, even though a client’s storytelling and narrative capabilities are often impacted, many courts will not adjust their approach accordingly. Thus, the lawyer will have to adjust their advocacy strategy understanding that courts may or may not treat their client appropriately (see Katz & Holder, above).

Resilience and Survival

It can also be helpful to focus not only on trauma, but also clients’ sources of resilience and strength. Dr. Michal Ungar at the Resilience Research Centre in Nova Scotia are conducting many research projects and interventions aimed at supporting individual and systems wellness. Ungar’s work takes the view that focusing solely on individual resilience is a shallow response. Rather, as he noted, “[I]f we can create environments rich in opportunities to bring out people’s best selves, then it’s a cascade of interactions. Almost everyone who is seriously studying resilience has moved away from just this idea of individual grit or mindfulness. Those are positive and helpful, but to help people respond to risk and stress, we need to think about the context in which they are adapting.” (from an interview with Dr. Ayurdhi Dhar, “Looking Beyond Self-help to Understand Resilience”, Mad in America: Science, Psychiatry and Social Justice, online: https://www.madinamerica.com/2021/07/looking-beyond-self-help-understand-resilience-interview-michael-ungar/).

In general, programs and services which are trauma informed are more supportive, avoid retraumatization and punishing those served, and avoid vicarious traumatization of those serving the survivors. However, legal workplaces and systems have not been very good at establishing trauma-informed contexts in which lawyers and clients work and are served. Providing trauma-informed services requires all of the staff of an organization to understand the effects of trauma on the people being served in order to reduce the possibility of retraumatization and remain consistent with the process of recovery. We address this further later. Nonetheless, there are also many individuals and communities working toward more trauma-informed ways of working that have the potential to transform legal service provision.

Recovery

Whether someone recovers from trauma is also complex and dependent on a number of factors. Recovery from ”unintentional trauma” (ie disasters, illness) is difficult but generally more manageable than recovery from trauma caused purposely by another human being. A client’s lack of recovery is complex and layered. It can be affected by previous trauma, new traumas, stress, social isolation, and lack of ‘truth telling’ (the ability to tell others what happened without shame or judgment). For many people, accessing and reintegrating into community is an important source of recovery.

Impacts of Trauma on Lawyers

Lawyers face a unique combination of factors that make experiencing secondary trauma and PTSD more likely and more difficult to treat. Research points to a number of factors including:

The subject matter and client situations lawyers work with,
The material lawyers review as part of evidence gathering,
The lack of attention or discussion of emotions,
Workplace conditions (eg, billable hours, caseload, etc.)
Lack of preparation in law school,
Legal education’s focus on distancing human experience from technorational approaches (eg, focus on rules, “facts”, etc.), and,
Lack of mental health supports for lawyers.

This issue is examined further in the Chapter on Wellness.

PTSD in the Workplace

“For a gruelling two years, Emma endured a relentless torrent of beratement, deliberate information withholding, occasional threats, and all-around bullying from her boss. The toll it took on her body and mental wellbeing became unbearable, ultimately leading her to walk away from a job she had fought tooth and nail to attain.

But even after securing a new position six months later, Emma found herself unable to escape the haunting memories of her former boss. She could not comprehend why she still fixated on the tormentor she had left behind despite finding solace in her new role.

Seeking help from a psychologist, Emma received a devastating diagnosis: PTSD, a direct consequence of enduring her boss’s reign of terror and the toxic work environment for such an extended period. It was a harsh realisation that physically moving on was not enough; she needed time to heal from the deep wounds inflicted upon her psyche.”

Trauma- and Violence-Informed Systems?

While lawyers can take trauma and violence-informed approaches to their daily work, this can be more difficult when the institutions surrounding their work do not. Consider:

How do billing practices impact a lawyer’s ability to practice in this way?
How does legal education operate in ways that ignore or undermine trauma-informed approaches?
How do systems of evaluation and funding impact trauma- and violence-informed care?

Reflection Questions

What are some ways that clients may exhibit signs of trauma?
What practices have you seen in your externship placement or elsewhere that draw on aspects of trauma-informed lawyering?
What practices might support trauma-informed lawyering in your externship placement?
How does a violence-informed approach supplement – or perhaps challenge – trauma-informed practices?
Identify one or more ways that a clinic or firm is engaging with trauma and/or violence-informed practice. This might be based in your own externship experience, or through readings or other sources.
How might judges or hearing officers engage in trauma- and violence-informed practices?

License

Icon for the Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License