We need to equip lawyers with better trauma-informed legal skills

Par Aruba Mustafa août 27, 201827 août 2018

We need to equip lawyers with better trauma-informed legal skills

 

How clients react to emotional trauma is complex and difficult to predict. It is why representing clients who are experiencing trauma is always challenging at best. The danger, however, is that without proper training, it can be psychologically harmful to the client or lawyer, or both.

Fortunately, “trauma-informed lawyering” is an approach to providing legal services that involves recognizing, understanding and accommodating a client’s trauma, and the impact it can have on the lawyer. It’s an approach that individual lawyers can integrate into their practice.

Doing so within an organization that also adopts a trauma-informed approach produces even better results.

Typically, lawyers are trained to distil facts that are legally relevant from a client’s myriad of non-legally relevant human emotions, reactions, and realities. Even when a client’s physical or psychological injury is relevant from a strictly legal point of view, practitioners tend to regard the injury as psychologically abnormal or unhealthy. As a result, the lawyer will often underemphasize the client’s trauma and its impact. To save time, and often mindful of a clients’ difficult financial situation, a lawyer will favour efficiency over an empathic interaction.

In contrast, a trauma-informed lawyer asks, not “what is wrong with you?” but “what happened to you?” The lawyer understands that trauma has an impact on how a client relates to and interacts with the lawyer and the legal system. For example, a client may struggle to cooperate in providing relevant facts and documents, keep scheduled appointments or trust their lawyer. These may all be signs of trauma.

Unfortunately, traditional legal training leaves lawyers unequipped to process and respond to such situations, even though they are more likely than not to come across clients with trauma experience at some point in their practice. But if they genuinely want to provide a client-centered service and establish a relationship of trust, they must learn to identify trauma and understand its impact.

Being exposed to a client’s suffering can harm the lawyer as well. Legal professionals can develop their own symptoms as a result of continuous exposure to clients’ trauma – a phenomenon known as vicarious trauma or compassion fatigue.

Vicarious traumatization is the harmful change that occurs in a lawyer’s self-perception, view of others and the world. It is distinct from burnout, and can manifest itself in different ways, such as extreme preoccupation with client’s story, an inability to set boundaries, or numbness towards the client’s trauma. According to Sarah Katz and Deeya Haldar, who have studied the matter, symptoms can include: denial of the existence of trauma; over-identification with clients; experiencing insignificant daily events as threatening; alienation; social withdrawal; loss of confidence and feeling of insecurity; generalized despair and hopelessness; disrupted frame of reference; diminished self-capacities; and alterations in sensory experiences, amongst others. Vicarious trauma is likely to interfere with a lawyer’s ability to understand and represent a client’s story.

Lawyers exhibit much higher levels of vicarious trauma than mental health service providers, Katz and Haldar identify two reasons for this: the lack of systemic education of lawyers regarding trauma in their clients and themselves; and overly burdensome caseloads.

The limited literature there is on trauma-informed lawyering tends to focus on areas of practice such as family law, immigration and refugee law, and legal aid clinics – where lawyers are more likely to encounter clients with trauma experience repeatedly.

Even so, trauma can result from common experiences such as car accidents, sudden job loss, discrimination, or any other set of deeply disappointing personal circumstances. Lawyers in private practice may be even more susceptible to vicarious trauma because they are less likely to have the requisite tools to recognize trauma and prevent vicarious trauma. Young lawyers are more likely to be affected by feelings of self-doubt, stress and anxiety that can exacerbate its impact. Lawyers at smaller firms or solo practices are more likely to be isolated, managing a heavy workload alone, and are more likely to have clients that have experienced trauma.

Katz and Haldar recommend teaching students how to integrate being lawyers with the rest of their lives. This would encourage them to think critically about the legal system and the experiences of litigants with experience of trauma as well as set the appropriate boundaries in the lawyer-client relationship. Starting early also ensures that lawyers do not have to unlearn later practices that are harmful to clients with trauma.

A large part of our jobs as lawyers is to give voice to our clients’ experiences. The inability to respond and accommodate their trauma affects our ability to do that well and get them the best possible legal result. Most legal curricula include skill-based courses or clinical courses that provide hands-on learning for students; adding trauma-informed legal skills to the mix would better prepare those students for a world not yet known.

Aruba Mustafa is an Ottawa based lawyer. After two years as a litigation lawyer in Ottawa, she now works in international law and development with a focus on human rights and comparative law. The author’s views are her own.

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