Month: January 2023
Helping Family Law Clients Through Conflict: Neuroscience & ADR Tools
Carol Barkes & Colby Jones
Attorneys are tasked with zealously representing their clients’ positions,1 and in the courtroom, this principle is second to none. However, particularly in family matters, attorneys take on the role of advisor, which contemplates incorporation of extralegal considerations into the advice provided to clients. Advisors more holistically account for a client’s circumstances and future well-being.2 Guiding families through their legal crisis often entails making recommendations to use alternative dispute resolution as a means to resolve conflict.
Preparing family law clients for alternative conflict solving requires more than simply educating them on the basics of negotiation, their best and worst alternatives, or of the law underpinning the strengths of their case. It requires an understanding of how people respond to and deal with conflict and personal crises.
By recognizing some basics of how the human mind responds to stress, attorneys can provide more meaningful service while better preventing burnout—something common in the field of family law.3 By applying neuroscience to conflict resolution, attorneys are better empowered to understand themselves and others while avoiding the landmines that can make family law all the more challenging.
This article will address the effects of stress on family law clients, the conflict narrative many family law clients create, neuroscience-based techniques attorneys can use to help clients prepare to effectively engage in ADR, and some ADR tools that are particularly useful to clients going through divorce and custody proceedings.
Effects of Stress
To put it lightly, divorce and custody conflicts are stressful for clients, and in no small part because of the amount and immediacy of change to their lives it represents. The brain equates change with uncertainty. When the brain cannot connect all the dots, so to speak, it creates “evil plot twists” that may not actually exist.4 Consider, for instance, being asked by a supervisor to meet with them in their office. Rarely does such a request garner a positive reaction rather than a fear-based response, evoking thoughts like, “What did I do wrong?” or, “Am I going to be fired?” The uncertainty comes from not knowing the intention.
Where there is “information poverty” there is uncertainty. This response to stress creates a “fight or flight” reaction that shuts down the brain’s rational reasoning region, the left prefrontal cortex, and temporarily creates a mental “reaction machine,” as it were.5 It is an innate mechanism to protect against harm. Once attorneys are engaged, information tends to stop flowing, making clients more susceptible to these types of reactions. Attorneys, though, can assist clients in maintaining their grounding despite intense stress to ease the dispute resolution process and perhaps prevent needless litigation in the future.6
The Conflict Narrative
People in conflict almost invariably have a strongly held conflict narrative. They come to attorneys with narratives about the past, their relationships, and themselves (generally as hero or victim). They also develop their “evil plot twist” throughout the case, which generally conforms to their overarching conflict narrative created from a lifetime of past experiences often having nothing to do with the situation at hand. In fact, when one reviews their life memories, they should do so with the understanding the details are not all accurate.7
Attorneys can guide clients through reactionary moments of stress and conflict by modeling different thought processes and communication styles. Challenging an upset or distraught client’s narrative is difficult and perhaps counterintuitive because the standard mode when confronted with strong emotions is to console, agree, and comfort.
However, challenging clients’ stress-induced conflict narratives generally benefits them in the long run, where resolution is the goal. Otherwise, armed with these narratives, the client enters mediation as an historian-warrior ready to attack the other side, defend their own position, and doggedly fight for every fact in their own history. They will not, however, be equally equipped to manage stress and conflict or have any insight into their own role in its creation and persistence. Attorneys can model better thinking and communication styles to help clients manage their own stress responses.
Adapting Speech Patterns
Adapting speech patterns helps challenge a client’s views, especially when a client creates conspiracies about the “other party” or engages in other recognizable patterns of emotional responses to conflict, adapting speech patterns can help while challenging the client’s views. Breaking speech down to 10 words or less per sentence, or no more than 20 words for more complex topics. Either way, limiting speech to 30 seconds or less, and then pausing, will allow clients to absorb the message conveyed while under stress.8
In a similar vein, effective attorneys teach their clients to refrain from being defensive, but to instead accept responsibility and seek to understand their partner’s perspective. When confronted with hostility from a stressed client, or when challenging a client’s conflict narrative, simply ask questions that help the client redirect their attention towards solutions versus reliving the past. Defensiveness is rarely a successful strategy and one that escalates conflict.9
Attorneys do not need to be overly direct, rude, or “cross-examine” their clients. Rather, attorneys can ask open ended questions that encourage clients to be more forward looking, moving away from their conflict narrative. For example, simply asking clients to describe how they imagine their life post-divorce can help them refocus on their interests rather than positions, think more positively, and be more open to creative solutions.10
Another neuroscience gem that can benefit both clients and attorneys is to learn to recognize the effects of mirror neurons. Mirror neurons fire when an individual observes behaviors in others, such as crying and laughing. They are thought to be one of the cornerstones of empathy.11 When observing behavior, mirror neurons create an experience in the observer similar to the observed behavior, inducing similar emotions, such as joy and sorrow. This is one reason we cry in movies or get sad when a loved one is hurting.
While mirror neurons are an asset for relating to others, they present a conundrum for attorneys. Unless careful in keeping professional distance, attorneys risk actually taking on the emotions of their clients as their own. Attorneys may adopt their clients’ negative thinking and communication style born of a sense of urgency and frustration felt by their clients. This can lead an attorney to become overly aggressive with “opposing” counsel, become belligerent, uncooperative, even plain rude or verbally abusive.
The attorney may also become completely divested of a dispute resolution mindset and instead exacerbate the conflict from a sense of indignation and blame of the “other side.” Finally, this can lead attorneys to “advocate for the cognitive distortions and negative behavior of [their clients].”12 As much as the attorneys in these circumstances have allowed themselves to become victims of their client’s own conflict, they become perpetrators of that trauma upon other members of their profession. This is to say nothing of the waste of court resources when conflicts between attorneys fuel the litigation.
Attorneys who represent their clients as if they are managing their own personal experience run the very real risk of burnout. This not only dilutes an attorney’s ability to be objective as they experience their clients’ situations in “living color” but also activates their own stress responses even though the situation at hand is not a threat to the attorney.
To minimize the effects of mirror neurons, becoming the voice of reason, kindness, and calm, will de-escalate a client. This frame of mind protects the attorney, as well, because inordinate amounts of stress can have deleterious effects on mental and physical well-being. From a neuroscience perspective, acquiring excess stress from others can actually kill one’s own brain cells.13
With this information in mind, a final word of wisdom would be that attorneys refrain from considering opposing counsel as obstacles in their way, or as the “enemy.” Instead, outside of the courtroom, consider them as a peer collaborator to reach optimal resolution for clients.14 Avoid fueling the fire of high conflict situations and get families beyond these legal chapters and on with living better lives.
This attitude will protect attorneys from fight-or-flight stress responses and enable them to find more creative solutions for clients. A collective approach to resolving conflict is not only better for clients but for society as a whole, and it does not hurt one’s professional reputation either.
Additional Dispute Resolution Tools
Although there is not room in this article to address the underlying systemic causes for conflict among parties and their counsel within the family law judicial system, such as the rules and procedures that tend to exacerbate conflict from the beginning of a family law case, the authors do want to highlight some possible resources for resolving family disputes that are likely underutilized. Hopefully, attorneys and others reading this article may find the following resources useful in mitigating other influences that fuel conflict.
Personal Property Binding Arbitration. Although not a service well-known in Idaho, if parties cannot agree on division of personal property items of lesser value, they can submit the matter by order or stipulation to binding arbitration, to avoid taking every toaster to trial, as it were. A personal property arbitrator meets with the divorced couple, generally post-decree, to divide personal property (e.g., kitchenware, knickknacks, and the like), and will make final decisions in case of disagreement. The parties can bring their lists and reason why they should get what they want, and the arbitrator would then decide much as a court otherwise would, but without the involvement of attorneys.
Parties’ options during personal property arbitration vary by state but may also include selling all items and dividing proceeds, agreeing on division of some items with the arbitrator making final decisions if an item is disputed, using auction-style methods, and even alternative selection methods, to name a few. This is generally limited to items of personal property that the courts and attorneys would rather not have to litigate.
Temporary Orders Mediation. Couples can be encouraged to come up with temporary solutions on issues of property and custody early in the case. This helps avoid the inevitable exacerbation of conflict for every couple who is simply waiting for a divorce to finalize while simultaneously supporting separate households.
This requires attorneys to schedule their clients with a mediator perhaps even before mandatory disclosures, realizing that these orders are merely temporary and not representative of final financial resolutions. Courts can do much to encourage attorneys to have conferred about temporary orders for division of income, expenses, and custody prior to the scheduling conference.
Transformative Co-Parenting Mediation. Although most mediators are familiar with the facilitative and evaluative mediation methods, particularly attorney-mediators are not always as familiar with transformative mediation, nor are comfortable with it. However, especially for custody cases, such mediation methods help parents gain some self-awareness about how conflict affects their own perceptions and communication.
“Mediators using a transformative approach believe that by changing the quality and improving the interactions (or at least establishing a neutral interaction) between the parties, any resolution to the issues may follow.”15 Mediators do not need to be counselors to engage in this type of mediation and it can help the parties learn to communicate in the future which is of significant value to the mental health of the entire family unit.
Collaborative Financial Divorce Planning. Although too often overlooked, financial professionals who are willing to serve as financial mediators or assist in mediation, can provide financial guidance to parties and their attorneys openly and transparently to help divorcing couples become more aware of the financial ramifications of their decisions. This is most effective because the parties and attorneys have information from the same source.
Of course, they may hire their own experts separately, but attorneys sometimes tend to forget that they are not financial planners or tax experts. Making promises or providing guidance beyond one’s professional expertise is a pitfall best avoided.16 If clients are to be referred out to experts, they should likely start by hearing information from the same one.
Hopefully, practitioners in Idaho will find these resources useful as peacemaking tools to help families build back their lives. In Idaho, as elsewhere, there are myriad policies that could be enacted both at the legislative and judicial rulemaking level that would help keep family law what it should be about – helping families in crisis.
This is a national, rather than a state-specific problem, and the authors encourage attorneys and other helping professionals to continue to engage in meaningful discourse on these issues. For a premier, please see Denver University’s Institute for the Advancement of the American Legal System publication entitled, “Family Law Bar: Stewards of the System, Leaders of Change, May 2016.”17
- Idaho Rules of Professional Conduct, Preamble .
- Id., Rule 2.1, n. (“Family matters can involve problems within the professional competence of psychiatry, clinical psychology or social work. . . . Where consultation with a professional in another field is itself something a competent lawyer would recommend, the lawyer should make such a recommendation.”).
- Melissa W. Bernier, LCSW, gave an excellent CLE on the subject of vicarious trauma and burn out among those in helping professionals, entitled Trauma Stewardship, on October 28, 2022, for the Idaho State Bar. She recommended a couple of resources for testing whether trauma and burnout are affecting you–the ProQOL and STSS online testing tools.
- Hilary Scarlett, Neuroscience for Organizational Change: An Evidence-based Practical Guide to Managing Change(Kogan Page Limited, 2016).
- Amy Arnsten, Stress signaling pathways that impair prefrontal cortex structure and function, Nature Reviews Neuroscience (2009).
- This article does not deal specifically with High Conflict Personalities, although clients with high conflict personalities will almost certainly need an attorney to challenge their narratives and model better communication and thinking.. For more information on this topic, please see “High Conflict People in Legal Disputes” by Bill Eddy, LCSW, Esq.
- Elizabeth Loftus, Memory(Ardsley House Publishers, 1988).
- Andrew Newberg M.D. & Mark Robert Waldman, Words Can Change Your Brain (Penguin Press, 2015).
- John Gottman, The Four Horsemen: Criticism, Contempt, Defensiveness, & Stonewalling, https://www.gottman.com/blog/the-four-horsemen-recognizing-criticism-contempt-defensiveness-and-stonewalling.
- David Rock, Quiet Leadership(Harper Collins Publishers, 2006).
- David Eagleman, The Brain(Pantheon Books, 2015).
- Bill Eddy, High Conflict People in Legal Disputes 164 (Unhooked Books, 2nd ed., 2016).
- RM Thomas, G Hotsenpiller G & DA Peterson, Acute psychosocial stress reduces cell survival in adult hippocampal neurogenesis without altering proliferation, 27(11) Journal of Neuroscience 2734 (2007). doi:10.1523/JNEUROSCI.3849-06.2007.
- To clarify, this collaboration does not take the same form as “collaborative law” whereby attorneys only advise clients as to law in settlement conferences, but do not advocate for their client, but assist them through the resolution process. Although our judicial system is an adversarial one, and attorneys have strict duties to their clients, attorneys can and do engage in settlement discussions and negotiations in family law daily. Adherence to the standards of professional conduct does not mean that attorneys cannot creatively help clients find solutions, or refer them to mediators and other professionals who can.
- Brandon & Fisher, Mediating with Families 30 (Thomson Reuters, 4th ed., 2018).
- Too often, attorneys tell their clients the “rules” about federal tax head-of-household claims and child tax exemptions that are simply wrong. Others make the mistake of considering post- and pre-tax dollars to be equivalent. Please refer clients to financial professionals.
- Family Law Bar: Stewards of the System, Leaders of Change, Denver University Institute for the Advancement of the American Legal System (2016) at https://iaals.du.edu/sites/default/files/documents/ publications/the_family_law_bar_stewards _of_the_system _leaders_of_change.pdf.
Carol Barkes, CPM, is a neuroscience-based conflict and communication specialist, best-selling author, mediator, and consultant with a wide variety of experience including speaking at the United Nations. She has been described by Fox TV as “one of the TOP Neuroscience and Conflict Resolution experts in the country,” and was twice honored as Idaho Woman of the Year. Carol is an ADR Advisor to the Department of Homeland Security/FEMA. She is an Adjunct Professor for the University of Idaho, Boise State University, the College of Southern Idaho, and is a sought-after keynote speaker with a thriving private practice through which she provides training, consultation, facilitation, coaching, and mediation for some of the world’s most notable organizations including Amazon.com, Idaho Power, HP, and Kount. In careers gone by, she was also a professional firefighter in the San Francisco Bay Area.
Colby Jones, JD, LLM, is a litigation attorney with Cordell Law and holds an LL.M. in Dispute Resolution from Pepperdine University’s Straus Institute for Dispute Resolution. Colby currently serves as chairperson of the Dispute Resolution Section of the Idaho State Bar. He is a mediator and is listed on the Idaho Supreme Court roster of custody mediators. Colby is a TedX speaker (Twin Falls, 2014). While in law school he served as the Vice Chair of the Alternative Dispute Resolution Student Organization (2014) and externed for Idaho Legal Aid. After graduating, he completed a judicial clerkship with the Hon. Benjamin Cluff of the Fifth District. Before seeking a career in law and alternative dispute resolution, Colby was an adjunct instructor for the College of Southern Idaho and Great Basin College. He and his family moved to several continents, where he divided his time between teaching at universities and participating in volunteer activities. He is now committed to advancing dispute resolution in Idaho.
Trauma-Informed Lawyering and Implications to Lawyer Competency and Professional Integrity
Merritt L. Dublin
The legal profession has been slow to recognize what many other service professions generally accept – that there are personal risks involved in working closely with individuals who have experienced traumatic events. Being informed about the impact of trauma on human thoughts and behavior and adjusting both personal and professional practices accordingly is “trauma-informed lawyering.” It is as important in the legal profession for the well-being of the clients, lawyers, and the professional community as it is in other professions such as first responders and therapists.
This article describes some key concepts of trauma and its impact on individual thoughts and behaviors as well as the importance of trauma-informed lawyering and suggests strategies to implement the four key components of trauma-informed lawyering.
Trauma Changes the Brain
Trauma “results from an event, series of events, or set of circumstances that is experienced by an individual as physically or emotionally harmful or threatening and that has lasting adverse effects on the individual’s functioning and physical, social, emotional, or spiritual well-being.”[i] Trauma is not limited to an individual experience. Rather, trauma may be collective (e.g., pandemic, war), race based (e.g., micro-aggressions, hate crimes), or historical or ancestral based (e.g., the way a family copes with trauma).[ii]
The neurobiological impact of trauma is mind-altering.[iii] The body’s neurochemical response to trauma can impact how one thinks, processes information, and communicates with others.[iv]
Trauma is Widespread
More people have experienced trauma than have not. The World Health Organization estimates that 70% of the population has experienced a traumatic event.[v] One article explains that “[o]n average, twenty four people per minute are victims of rape, physical violence, or stalking by an intimate partner in the United States—more than twelve million women and men over the course of a year.”[vi]
The authors continue that “[n]early three in ten women and one in ten men in the U.S. have experienced rape, physical violence, and/or stalking by a partner and report a related impact on their functioning. A reported 1.71% of children are maltreated in the United States.”[vii] Moreover, traumatic events involving intimate partner violence, sexual abuse, and child maltreatment are far more prevalent than acknowledged or reported.[viii]
Trauma-Informed Practice Avoids Professional Misconduct
Because trauma is so widespread, attorneys are highly likely to encounter individuals impacted by trauma in all areas of practice, including in themselves. [ix] Understanding the impact trauma can have on one’s thoughts and behaviors is important to developing trust and effective communication in the attorney-client relationship – important components to one’s professional responsibility of competence generally.[x]
An attorney’s failure to recognize his or her own trauma and response to such trauma can also impact their ability to be a competent lawyer.[xi] As one author explained, “lawyers may act unprofessionally when they are not healthy and, thus, undermine the legal system. Lawyers’ ability to competently provide legal services plays a significant role in individual clients’ lives, sometimes in matters of life and death.”[xii]
What does it mean to practice trauma-informed lawyering?
“The hallmarks of trauma-informed practice are when the practitioner puts the realities of the client’s trauma experiences at the forefront in engaging with the client, and adjusts the practice approach informed by the individual client’s trauma experience. Trauma-informed practice also encompasses the practitioner employing modes of self-care to counterbalance the effect the client’s trauma experience may have on the practitioner.”[xiii]
Breaking it down for trauma-informed practitioners :[xiv]
- Recognize signs of client trauma;
- Understand the effect of trauma on a client’s physical, emotional, and mental health, behaviors, and engagement in legal services;
- Adjust the attorney-client relationship and lawyering strategy to achieve a client’s goal while avoiding re-traumatizing the client; and
- Avoid vicarious trauma.
Trauma informed lawyering requires adjusting lawyering strategies.
Be intentional about developing rapport and trust in the attorney-client relationship. The American Bar Association suggests adopting a “Trauma-Informed Stance” in the context of representing children. [xv] The stance involves a set of “principles that seek to avoid exacerbating the client’s impaired sense of safety, difficulty with trust, and negative beliefs about herself and her relationship with others.”[xvi] These principles apply to trauma victims generally, not just children,[xvii] and include:
- Transparency – be transparent with your client about her case to minimize feelings of powerlessness that may trigger a trauma response, and to distinguish your relationship from past abusive relationships.
- Predictability – give your client information about every step of the process from the beginning to the end and create routines with the client; predictability helps engender feelings safety.
- Client Control (Empowerment) – combat client feelings of powerlessness by giving clients decisions and control over as much as possible in the attorney-client relationship and legal process generally.
- Reliability – be reliable to avoid reinforcing the client’s belief that others are not trustworthy and thus engendering distrust in the attorney-client relationship; own up to mistakes.
- Proactive Support – anticipate triggers that may impact a client and plan accordingly, including being aware of when mental health professional involvement is appropriate and the boundary between legal services.
- Patience – allow time for trust to develop and recognize when a client’s trauma response is at play in the relationship.
Although not included in the ABA’s set of principles, End of Violence Against Women International (“EVAWI”)’s Start by Believing campaign should also be included.[xviii] EVAWI’s inspiration for the Start by Believing campaign was based on empirical evidence showing that reports of sexual abuse are often approached with skepticism and generally viewed as “false until proven true.”[xix] This skepticism results in victims suffering secondary trauma and not reporting the abuse, poor investigations, if any, and perpetrators viewing themselves as untouchable and empowered to victimize others.
Start by Believing means “[r]esponding to a disclosure of sexual assault victimization with an initial orientation of belief, rather than doubt, blame, or shame.”[xx] These principles apply equally to reports of other trauma including non-stranger violence and child maltreatment. Implementing these principles into a trauma-informed lawyering practice promotes the lawyer’s professional duty to “do no harm,” and starts with three simple words: “I believe you.”
Recognize and prepare for trauma triggers. Traumatic experiences are stored in the brain in such a way that recalling the event may trigger fear and anxiety like what was experienced during the trauma itself, and the release of stress hormones causing a dysregulated trauma response. Common trigger responses include lashing out, having difficulty tracking questions or answering clearly, shutting down and not being able to remember any information, dissociating (e.g., flat affect, spacing out), and “flooding,” providing a long, tangled, disorganized narrative.
Recognizing a client’s trauma response allows the attorney to create a safe environment for the client, enhance trust and rapport with the client, minimize re-traumatization of the client, and provide insight to the attorney on how to access important information from the client necessary to effectively advocate for the client’s goals. Providing the client with support may allow them to overcome the response.
Practice trauma-informed reframing when interviewing a client. Trauma-informed interviewing means recognizing that a client’s ability to recount information you want to support your case is likely impacted by their trauma and you will need to adjust accordingly. You may need to reframe your questions and adjust your expectations as to how they “should” be answered and control over the manner in which the information is recounted.
Examples of trauma-informed interview questions:[xxi]
- Avoid asking the client questions that start with “why” and “explain to me” and instead ask questions such as, “what were your thoughts?” and “what were your feelings?”
- Avoid asking the client for chronological accounts and instead ask questions such as, “what do you remember about before the incident/during/after?”
- Ask the client open-ended questions such as, “what else do you remember?”
- Give the client a choice on where to start and what to share such as, “where would you like to start?”
- Actively listen to the client and follow up with questions to build the puzzle pieces
Incorporate the trauma-informed stance into the litigation process. Adjusting lawyering strategies can involve incorporating the trauma-informed stance not only into the attorney-client relationship but also into the litigation process. For example, an attorney recognizing the difficulty a client may have in recounting traumatic experiences before a court may employ predictability for the client by planning additional time to prepare a client so as to desensitize them to the difficult questions; visiting the courtroom in advance with the client and explaining the process so they know what to expect; requesting more time for a trial or proactively planning breaks; and arranging for a mental health support person to attend proceedings.
Identifying and mitigating negative impacts of the absence of trauma-informed practice with other service providers. Widely held beliefs about credible testimony ignore the neuropsychological reality of the victim’s trauma response during the experience and can result in a poor response and “bad facts” in your client’s case.[xxii] End Violence Against Women International explains:
“If a professional, for example, does not know about the trauma response of dissociation, tonic immobility, or collapsed immobility, the professional might wonder why a victim did not resist and whether sexual acts were consensual; if the professional doesn’t understand the functioning of the brain’s hippocampus and the distinction between top-down versus bottom-up attention, the professional might question why the victim can’t remember what seems like basic or crucial details about the assault; if the professional doesn’t understand that the hippocampus often lapses into a fragmented or refractory mode after an initial super-encoding (or ‘flashbulb’) mode, it won’t make sense when a victim is able to recall a great deal about the initial moments of the sexual assault, but very little about ‘what happened next.’”[xxiii]
Educating courts and juries to recognize potential deficits in an interviewer’s trauma intelligence may be vital to effectively advocating for your client.
Avoid vicarious trauma.[xxiv] Lawyers who may not have directly experienced or witnessed their clients’ traumatic events nonetheless may be impacted by continually hearing about the events and by seeing their impact on the lawyer’s clients. “The expectation that we can be immersed in suffering and loss daily and not be touched by it is as unrealistic as expecting to be able to walk through water without getting wet.”[xxv] Although any lawyer can experience vicarious (or secondary trauma), family law attorneys are particularly at risk with high rates of intimate partner violence and child abuse.[xxvi]
Vicarious trauma is the “harmful changes that occur in professionals’ views of themselves, others, and the world, as a result of exposure to graphic or traumatic experiences of their clients.”[xxvii] It is also referred to as “compassion fatigue” and can manifest as a wide range of disruptions in one’s relationship with oneself and others in the areas of safety, trust, esteem, intimacy and control.[xxviii] All responses impact a lawyer’s ability to effectively engage with and represent a client, impacting an attorney’s duty of competence and diligence.[xxix]
“[J]ust as the brain can be harmed by negative experiences [however], so too can it be healed through positive experiences.” A trauma-informed practitioner can take steps to reduce the possibility of suffering vicarious trauma by engaging in self-care and activities that build positive experiences that contribute to one’s personal health and resiliency.[xxx]
By implementing the four hallmarks of trauma-informed lawyering, one can create a sense of safety, trust, and rapport essential to effective communication within the attorney client relationship. Along with competent representation, an attorney may provide a positive experience for the client that promotes healing and long-term well-being for both the client and the lawyer.
Many community family law practitioners and judges employ trauma-informed lawyering in foreign practice principles for clients but fail to realize that their own experiences with work stress and job dissatisfaction may be indications of secondary trauma, and may be remedied by developing awareness and emotional intelligence tools. This article is intended only to raise awareness and curiosity surrounding trauma-informed practices. If I have succeeded, there are many resources available to assist developing and growing a trauma-informed practice.[xxxi]
[i] Substance Abuse and Mental health Services Administration, Trauma Definition, available at www.samhsa.gov/traumajustice/truamadefinition/defenintion.aspx.
[ii] See Dottie Lebron, Laura Morrison, Dan Ferris, Amanda Alcantara, Danielle Cummings, Gary Parker & Mary McKay, The Trauma of Racism (McSilver Institute for Poverty Policy & Research, NYU 2015), available at http://www.mcsilver.org/wp-content/uploads/2015/04/Trauma-of-Racism-Report.pdf. See also Glenn H. Miller, Commentary: The Trauma of Insidious Racism 37(1) J AM. ACAD. PSYCHIATRY LAW 41, 42 (Mar. 2009).
[iii] Under stress, perceived or real, the amygdala – responsible for encoding emotional responses – releases stress hormones which impair or shut down the prefrontal cortex – which is responsible for decision-making and memory. This results in what is often recognized as the “fight, flight, or freeze” response to the threat. Sarah Katz & Deeya Haldar, The Pedagogy of Trauma-Informed Lawyering, 22 Clinical L. Rev. 359, 366 & nn. 25 & 26 (2016). In this state, victims can experience dissociation – disconnection from the physical body to escape the threat—or “tonic immobility”—the sensation of not being able to move even to speak. Id.
[iv] Wilson, Lonsway, Archambault, Hopper, Understanding the Neurobiology of Trauma and Implications for Interviewing Victims, End Violence Against Women International (Nov. 2016), available at www.evawintl.org; T. Kraemer and E. Patten, Trauma in Practice, Establishing Trauma-Informed Lawyer-Client Relationship (Part One), ABA Child Law Practice, Vol. 33, No. 10 (Oct. 2014), available at http://www.childlawpractice.org.
[v] Ron C. Kessler et al., Trauma and PTSD in the WHO World Mental Health Surveys, 8 (sup5) Eur. J. Psychotraumatol. (Oct. 2017) available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5632781. According to the CDC, About 41% of women and 26% of men experienced contact sexual violence, physical violence, and/or stalking by an intimate partner and reported an intimate partner violence-related impact during their lifetime. Fast Facts: Preventing Intimate Partner Violence, Centers for Disease Control and Prevention, Violence Prevention (Oct. 2022) available at https://www.cdc.gov/violenceprevention/intimatepartnerviolence/fastfact.html. See also Karen Oehme & Nat Stern, Improving Lawyers’ Health by Addressing The Impact of Adverse Childhood Experiences, 53 U. Rich. L. Rev. 1311, 1323-24 & nn. 84 and 85 (May 2019) (noting studies show a significant portion of the adult population experienced traumatic events in childhood commonly including physical abuse and neglect, sexual abuse, emotional abuse and neglect, witnessing intimate partner violence, substance abuse within the household, parental mental illness, parental separation or divorce, community violence, and having an incarcerated household member).
[vi] Katz & Haldar, supra note 3, at 365.
[viii] Data to support this statement is abundant. See, e.g., Rachel E. Morgan, Ph.D., & Grace Kena, BJS Statisticians, Criminal Victimization, 2016: Revised October 2018, NCJ 252121 (Nearly 80% of rape and sexual assaults go unreported). A more impactful way to test the accuracy of the statement is to ask your friends and family who has not experienced interpersonal or sexual violence of some form? And then ask how many told someone or reported it? And then ask, how many were believed, supported and helped when they did?
[ix] See Oehme & Stern, supra note 5, at 1314–15 (advocating for increased education and open discussion within legal community of how adverse childhood experiences (“ACEs”) can harm attorneys’ long-term well-being, contribute to maladaptive coping strategies, impact competent representation, and undermine the legal profession).
[x] See IRPC 1.1 (“Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”); IRPC 1.13 (“A lawyer shall act with reasonable diligence and promptness in representing a client.); IRPC 1.4(a)(2)(“Lawyer must reasonably consult with the client about the means by which the client’s objectives are to be accomplished;) & (b) (lawyer must communicate with client about a matter “to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”).
[xi] IRPC 1.16(a)(2) (explaining that a lawyer shall withdraw if lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client).
[xii] Oehme & Stern, supra note 5, at 1336–37 (2019) (internal citations omitted).
[xiii] Katz & Halder, supra note 3,at 359.
[xiv] “The four Rs” of a trauma-informed approach are: “Realizing how trauma affects people and groups, recognizing the signs of trauma, having a system which can respond to trauma, and resisting re-traumatization.” Substance Abuse and Mental Health Services Administration (SAMHSA)’s Concept of Trauma and Guidance for a Trauma-informed Approach: https://store.samhsa.gov/sites/default/files/d7/priv/sma14-4884.pdf. See also IMPROVING LAW ENFORCEMENT RESPONSE TO SEXUAL ASSAULT AND DOMESTIC VIOLENCE BY IDENTIFYING AND PREVENTING GENDER BIAS, U.S. Department of Justice | May 2022 | https://www.justice.gov/ovw/page/file/1509456/download.
[xv] T. Kraemer & E. Pattern, Trauma in Practice; Establishing a Trauma-Informed Lawyer-Client Relationship (Part One), ABA Child Law Practice, Vol. 33, No. 10 (Oct. 2014); AM. BAR ASS’N, ABA POLICY ON TRAUMA-INFORMED ADVOCACY FOR CHILDREN AND YOUTH (2014), available at https://perma.cc/48M7-DPP8.
[xvii] See Oehme & Stern, supra note 5, at 1323 (noting limitations inherent in ABA Policy on Trauma-Informed Advocacy for Children and Youth in disregarding negative and widespread impact of primary trauma experienced by lawyers and judges).
[xviii] A Brief History of EVAWI and Start by Believing, Victim-Centered, Trauma-Informed Approaches. End Violence Against Women International.
[xix] Id. at 3, 10(citing U.S. Department of Justice, Civil Rights Division, Investigation of the New Orleans Police Department, 2011, p. 46).
[xx] Id. at 10 (citing U.S. Department of Justice, Civil Rights Division, Investigation of the New Orleans Police Department, 2011, p. 46).
[xxi] For more examples, and a more thorough discussion, see International Association of Chiefs of Police, Successful Trauma Informed Victim Interviewing.
[xxii] See Wilson et al., supra note 4.
[xxiii] A Brief History of EVAWI and Start by Believing, Victim-Centered, Trauma-Informed Approaches, at 16 & n. 57, End Violence Against Women International (2018).
[xxiv] “[A] common, long-term response to working with traumatized populations, as a part of a continuum of helper reactions ranging from vicarious growth and resilience to vicarious traumatization and impairment.” Katz & Haldar, supra note 3, at 368.
[xxv] Rachel Remen, Kitchen Table Wisdom: Stories that Heal (1996).
[xxvi] Jennifer Brobst, The Impact of Secondary Traumatic Stress Among Family Attorneys Working with Trauma-Exposed Clients; Implications for Practice and Professional Responsibility, 10 J. HEALTH & BIOMEDICAL L. 1, 2 (2014) available at https://cdn.atixa.org/website-media/atixa.org/wp-content/uploads/2019/09/25143736/Review-of-Neurobiology-of-Trauma-9.1.2019.pdf. See also National Center for State Courts, Domestic Violence and Child Custody Disputes: A Resource Handbook for Judges and Court Managers 5 (1997) (finding documented evidence of domestic violence in 20-55% contested custody cases).
[xxvii] Katz & Haldar, supra note 3, at 368.
[xxix] The executive functions of the brain impacted by the stress response are “vital to lawyers’ functioning” according to the ABA. Oehme & Stern, supra note 5, at 1327 (citing Bree Buchanan & James C. Coyle, Preface to NAT’L TASK FORCE ON LAWYER WELL-BEING, THE PATH TO LAWYER WELL-BEING: PRACTICAL RECOMMENDATIONS FOR POSITIVE CHANGE 9, 47 (2017) available at https://perma.cc/UT76-Y43Y.
[xxx] Authors Oehme and Stern posit that the significant influence of the legal profession over society, the economy and the government “makes lawyers’ struggles more than personal problems and supports a broad call for frank discussions about trauma,” and education about early childhood trauma and research-informed practices to build resilience to better prepare to deal with future stress. See Oehme & Stern, supra note 5, at 1336.
[xxxi] For example, see Lara Van Dernoot Lipsky, Trauma Stwardship: An Everday Guide to Caring for Self While Caring for Others (2009).
Merritt L. Dublin is a professor with the University of Idaho College of Law and the Director of the Family Justice Clinic where students develop trauma-informed lawyering skills providing pro bono representation to victims of domestic violence. In partnership with FACES of Hope Victim Services Center, the University of Idaho law students have served over 300 low income families in the Treasure Valley since the clinic opened in 2018.
Working with Domestic Violence Survivors: A Mental Health Perspective to Consider
Domestic violence cases may be some of the most challenging and frustrating cases you deal with. Their challenges differ depending on the area of law you practice. For instance, if you’re a prosecutor, perhaps you want a clean, consistent, chronological recounting of events, but the story you get from the victim comes in fragments full of contradictions. The original police report doesn’t match the victim’s testimony later on or you learn of cases not reported in the first place.
Perhaps you are perplexed by the victim recanting their story or returning to the perpetrator. You wonder why the victim doesn’t want the perpetrator prosecuted. You might have a hard time believing the victim. Sometimes it is easiest to discredit them or look for ways to get rid of their cases. You have a heavy caseload and you don’t have the time needed to deal with the messy and highly emotional aspects of domestic violence cases
All of this might lead to a feeling of helplessness in your ability to uphold justice and protect the community. Out of good intentions, you start to focus so heavily on the goal of conviction that you push victims too hard or treat them like they are your opponent. As a defense attorney, you might emphasize apparent inconsistencies to discredit victims or have charges dismissed. Prosecutors and defense counsel alike are, at times, villainized for the work they do on domestic violence cases.
Domestic violence can also present challenges for family law attorneys to protect the best interest of their clients. Domestic violence creates a power differential that allows one partner to maintain control over another. These controlling behaviors can continue long after the relationship is over, recruiting the legal system to play a role in the ongoing abuse. When family law cases involve domestic violence, this power differential might be ignored, putting the victim at an unfair disadvantage. In a system where the default is to view both parties as equal, it might be challenging to present the case otherwise, especially if the victim is not yet fully aware of their victimhood.
As an attorney, you have been trained to understand the law and apply the law to facts. You are not a mental health provider who has been trained to work with survivors of domestic violence who are experiencing trauma-related symptoms. Yet if your work involves domestic violence, there is a cross-over between the two professions that may leave you feeling ill-equipped to do your best work. You may have questions about the impact of trauma and domestic violence on survivors and how you can be more effective in working with them.
In this article, I hope to answer some of your questions and continue closing the gap between the legal profession and mental health professions.
The Neurobiology of Trauma (Basics for Lawyers)
Survivors of domestic violence often develop patterns of behavior in response to the trauma they have experienced. The human body is organized to respond to stressful situations, returning to equilibrium after the stressful situation has ended. Trauma occurs when an individual’s perceived stress outweighs their perceived ability to cope with that stress.
The extreme or prolonged stress of domestic violence requires the brain and body to adapt by developing more extreme coping measures. Each individual’s trauma response will be different, but some common things you may see with a trauma survivor are angry outbursts, guardedness and mistrust, sharing traumatic material as if it’s a rehearsed story that happened to someone else, rambling speech patterns, or a blank stare as if they are not fully there. Other trauma symptoms may include flashbacks, shame, sexually reactive behavior, substance abuse, and high-risk behaviors.
These behaviors are not a conscious choice but are the result of a nervous system that has been on high alert for so long that it isn’t able to balance. The nervous system is designed to alert the body and brain instantly to danger. It produces stress hormones that get the heart pumping faster and muscles moving to either fight or run away from the danger. When the danger is ongoing or the individual is unable to fight or run away, the nervous system stays in an activated state.
Consequently, even long after the threat is over, a traumatized individual’s body will continue to act as though it’s not safe.[i] This shift in the nervous system and accompanying neurochemicals in the body can also result in re-traumatization, as an individual becomes accustomed to this heightened state of activation and seeks high risk activities out of dependency or a need to “feel alive.”
This is one reason why individuals might return to their abusers, use substances, or exhibit what might be considered “promiscuous” behaviors.[ii] The behaviors that are often used to discredit survivors are actually symptoms with a neurobiological basis resulting from the trauma caused by their abuse. A trauma survivor will likely already experience shame about these behaviors, and that shame is exacerbated when these things are brought up in legal proceedings.
There are many reasons why a survivor’s story about their abuse might not be clear, consistent, or appear credible. When trauma happens, the part of the brain that manages logical reasoning, language, time, and linear thinking shuts down so that the part of the brain focused on survival can take over. This is the part of the brain that codes short-term memories into long-term memories. When the reasoning part of the brain shuts down, traumatic events become stuck in the survival area of the brain and are not turned into linear stories with a timestamp.
In part, this means traumatic memories are not always retrieved in detail or language. Often, they are remembered in images, senses, or emotions.[iii] This can lead to flashbacks in which the individual re-experiences the trauma as though it is currently happening. A traumatized individual might also dissociate, or blank out, and seem as if they’re not really present. Flashbacks and dissociation may occur as an individual’s system gets flooded while talking about their abuse or testifying in court. It may be the nonlinear way that their memories are coded and/or it may be their brain and body’s way of avoiding a flood of memories and re-traumatization.
Recognizing this neurobiological basis for the way survivors behave can serve to reduce their shame, as well as the level of frustration you experience as an attorney working with the survivor. Returning to an abuser, not testifying against the perpetrator, and not being able to tell a consistent story about what happened may seem unreasonable or irrational, but it begins to make sense in light of the trauma that is experienced in the body. Creating a sense of safety, which will be discussed later in this article, is paramount in reducing these symptoms and keeping the rational part of the brain online.
Challenges Specific to Domestic Violence
Domestic violence does not generally start with physical or sexual violence. Often, perpetrators will start by preying on vulnerabilities or insecurities of victims by meeting their need for love or belonging. Slowly, the perpetrator will start to gain power and control over the individual by isolating them, using threats or intimidation, minimizing or denying their reality, or putting them at an economic disadvantage. Often, children will be used to control the other partner even after the relationship is over.
The methods for gaining power and control are varied, but a key ingredient in domestic violence is a power differential that puts the victim at a disadvantage.[iv] Systemic oppression such as racism, sexism, heterosexism, and ableism compounds on this power structure, increasing the risk for women, people of color, other-abled, or members of the LGBTQ+ community.[v]
This process can follow a pattern. For example, some abusive relationships experience cycles starting with a buildup of tension where power and control behaviors are at play, but there may not be physical violence. This builds up to a violent episode in which the crime is committed. Afterward, the relationship goes through a “honeymoon” period in which the perpetrator might apologize, blame, minimize, or deny the victim’s reality. The abuser might also “love bomb” the victim with flowers, presents, or promises to be better.
During the honeymoon period, the abuser again preys on the vulnerabilities of the victim. The tension begins to build again as the cycle continues.[vi] Over time, the victim may lose their sense of identity and self-efficacy. Powerfully advocating for survivors may involve a process of helping them to tell the truth of their abuse by presenting facts about power and control.
The varied nature of the control exercised in domestic violence situations makes protecting victims of domestic violence challenging, and it is not a quick or linear process. Survivors face many barriers to leaving or testifying against their abusers including financial and survival concerns, fear for their safety or the safety of their children, or not believing that they can do it. Facing the unknown may feel more threatening to survivors than the abuse they are currently experiencing which is familiar and somewhat predictable. Being aware of the cyclical nature of abuse can help attorneys to understand barriers that survivors face when they testify against their abuser or walk away from the abuse.
It is especially vital for family law attorneys to be aware of controlling behaviors that may be present as they represent survivors in divorce and custody hearings. Survivors are used to having their reality denied or minimized, which can make it hard for them to tell their truth in court. Survivors may shut down or continue to make themselves smaller when their truths are also denied or minimized by the court. Survivors may not feel like they can fully accept the truth of the abuse out of fear that they will be seen as an alienating parent. It’s also important to remember that survivors and their children will continue to have contact with the perpetrator after the proceedings are over. Anything that is presented in court may become fuel for punishment from the perpetrator.
Working with Survivors in a Trauma-Informed Way[vii]
Perhaps the most important first step in working with domestic violence survivors is to believe them. Before a survivor of domestic violence meets with you, they have likely already experienced stigma and disbelief. They have been shamed and discredited by both the abuser and other authority figures in their lives. You may feel tempted to “interrogate” in order to get the facts that you need for your case but listening and believing are more effective tools for working with survivors.
Remember that they are coming to you for your legal expertise, but they are the experts on their experience. Building a collaborative relationship is essential in working with survivors. This begins with empathetic listening, in which you set aside judgments and assumptions so that you can understand the perspective of the survivor. Come to the conversation with curiosity and you will be able to gather information from both verbal and non-verbal cues. Watch their body language and listen for what they are not saying. As you build a trusting relationship through warmth and empathy, paraphrasing what they say and asking clarifying questions, the survivor can feel safe to tell their story without re-traumatization.
It is essential in working with survivors to be aware of power differentials. Work to lower the power differential as much as you are able. Survivors of domestic violence might be used to authority figures telling them what to do or judging and shaming them. They might come into this partnership expecting you to be another person who will let them down. They might acquiesce to your expertise even when it does not feel right to them because of past experiences they have had with authority.
You can create a different kind of relationship with them than they’ve experienced in the past by sharing the power and seeking to understand their perspective and their needs. As to the latter, sometimes survivors of domestic violence don’t recognize their victimhood. What they experienced may be so normal to them that they don’t know that it’s abuse. One way for an attorney to gather information from a survivor is to note and seek specific details about power and control in the relationship. You might ask, “Does she call you names?” or “Does he degrade you in public?”
Finally, it is essential to be patient with the survivor’s process. Give them time to be in a place where they can testify. Survivors may get frustrated with the legal process as they expend emotional energy in preparation for a trial just to watch it get reset. Simply checking in with them to let them know you are still there and working on their case even if there is nothing new to report can go a long way in keeping them strong and encouraged.
The health of the survivor is more important than any case could be. This case is one small part of a survivor’s overall healing process. Sometimes, legal justice helps but is not the answer to give survivors the closure that they need. This is a person with a story to tell and you are there to help them tell their story and advocate for themselves. Recognizing how difficult and traumatizing this process can be will help you to see their personhood rather than just a case number.
Working with domestic violence in the legal system is not easy. If you practice in it, you probably came into this work with good intentions to help victims. Over time, you may have experienced a sense of helplessness. This work is messy, affords no simple solutions, and deals with some of the darkest aspects of the human experience. This can lead to symptoms of compassion fatigue, burn-out, and vicarious trauma.
You might find yourself dehumanizing victims or becoming more and more cynical. You might feel like checking out and disengaging rather than connecting with colleagues or loved ones. Much as you consider a survivor’s wellbeing, it is also important to check in with yourself about how you are feeling and assess the impact this work may be taking on you.
For those practicing in this area, finding sustainability will be a key factor in your ability to continue to do this work. Be intentional about the way you take care of yourself. A common notion about self-care is that it involves luxurious bubble baths and massages. The truth about caring for yourself, especially when you are continually exposed to trauma, is that it is hard work.
It involves being aware of your own trauma response and knowing what your nervous system needs to maintain or come back into balance. It might involve activities that help you to calm and soothe your nervous system such as yoga or meditation, or more active movement to release excessive energy such as running or boxing. Intentional self-care continually addresses an individual’s physical, emotional, mental, creative, spiritual, and social needs.[viii] Seeking mental health services can help you to build strategies for coping with stress that is overwhelming your system or to recreate meaning when it has been lost through the human suffering you were exposed to.
Good self-care will also address your professional needs. Domestic violence and trauma specific training can give you the tools you need to work competently with survivors. The National Center on Domestic Violence, Trauma, and Mental Health has created a handbook for attorneys that can guide the work you do.[ix] Working collaboratively with mental health providers and victims/witness coordinators can also enhance your effectiveness in working with survivors. Creating a sustainable plan for managing your own reaction to trauma exposure will help you to be a more effective advocate for the trauma survivors you work with.
[i] Van der Kolk, B. (2014). The Body Keeps the Score: Brain, Mind, and Body in the Healing of Trauma.
[ii] Carnes, P. J. (2019). The Betrayal Bonds: Breaking Free of Exploitive Relationships. Health Communications Inc.
[iii] Van der Kolk, B. (2014). The Body Keeps the Score: Brain, Mind, and Body in the Healing of Trauma.
[iv] Home of the Duluth Model: Domestic Abuse Intervention Programs https://www.theduluthmodel.org/wheels/.
[v] Chaves, A. Z. & Hill, M. S. (2008). Integrating multiple intersecting identities: a multicultural conceptualization of the power and control wheel. Women & Therapy, 1:121-149.
[vi] Walker, L. E. (1989). Psychology and violence against women. American Psychologist, 44(4), 695–702.
[vii] Readers are referred to Merritt Dublin’s article, published next in this issue, which discusses trauma informed practice in depth.
[viii] Lipsky, L. v D. (2009). Trauma Stewardship: An Everyday Guide to Caring for Self While Caring for Others. Berrett-Koehler Publishers, Inc.
[ix] Seighman, M. M., Sussman, E., & Trujillo, O. (2011). Representing domestic violence survivors who are experiencing trauma and other mental health challenges: a handbook for attorneys. National Center on Domestic Violence, Trauma, and Mental Health.
Jennifer Beckstead is a licensed professional counselor at Family Services Alliance of Southeast Idaho which serves survivors of domestic violence, sexual assault, and stalking. She has a master’s degree in clinician mental health counseling with a background in bodywork and yoga.
Why Can’t We Just Be Nice?
Melanie E. Baillie
Although I will admit that I like catchy titles, this article is not about being “nice.” As attorneys, we cannot always be “nice,” and we are not called to be. Rather, the topic de jour is civility – or the lack thereof. Civility is conduct that is marked by “personal courtesy and professional integrity in the fullest sense of those terms.”[i] I admit that I am a work in progress.
At the recent Annual Family Law Section conference, I raised the issue of civility with colleagues. Is the lack of civility in the profession getting worse? Everyone I have spoken with seems to feel as though incivility has increased exponentially among both clients and colleagues. In a profession where the pressures are already extreme, the marked increase in hostility, insolence, and vitriol is unsustainable to the advancement of justice.
The perception of incivility among attorneys, and the call for change is not new. In 1996, the Conference of Chief Justices (“CCJ”) adopted a resolution calling for the highest courts in every state to encourage professionalism among attorneys.[ii] Despite the long-held concerns, civility in the legal profession has not only declined, but has seemingly plummeted.
Despite the pervasiveness of the problem, many Courts and Bar Associations have rejected the notion of professional disciplinary action based on boorish and unprofessional behavior.[iii] In response to the resistance to behavior change through professional enforcement mechanisms, in 1999, the CCJ then adopted a National Action Plan on Lawyer Conduct and Professionalism. The point was to combat further the lack of civility in the profession, while also recognizing that professionalism and civility are necessarily aspirational.
Author Jayne Reardon identified the influence of traditional media and social media portrayals of attorneys as some of the causes of declining civility. These causes include inexperienced lawyers without adequate mentoring and the isolation of modern technology providing “anonymous platforms” for what Ms. Reardon terms “digital expression.” But, like all complex problems, these causes are just the start. Moreover, recognizing the cause of the problem and fixing it, are clearly two separate challenges.
Recognizing the challenges of change, the CCJ Professionalism and Competence of the Bar Committee formed a roundtable group to study the incivility problem and enforcement.[iv] How does a regulatory body discipline an attorney who engages in incivility? The short answer is, arguably, it cannot. The difficulty in finding an institutional fix was exemplified in the 2021 Georgia Court of Appeals case[v] In Re Spix. The trial court held an attorney in contempt because of unprofessional and uncivil emails.[vi] The Georgia Court of Appeals reversed, finding that summary contempt proceedings for conduct outside of the courtroom violated due process.[vii]
United States Magistrate (Idaho) Judge Larry Boyle noted, “[T]he principle of zealous advocacy is often treated as inconsistent with civility and professionalism. However, there is no inconsistency. ‘In fact, quite the contrary, advocacy which is both civil and professional is by far the most effective.’”
Idaho, like other state bars, also recognized the problem of incivility among its members. In the early part of the new millennium, the Idaho State Bar Professionalism and Ethics Section crafted the Standards for Civility in Professional Conduct.[viii] These standards were put before the Bar membership who resoundingly adopted them. Some 77% of the Bar membership voted to approve these standards. The U.S. District Court for the District of Idaho went one step further and incorporated the Standards into Local Civil Rule 83.8. Notwithstanding these efforts, the Idaho Standards for Civility in Professional Conduct are aspirational, and a violation of the Standards is really not sanctionable. Even the Federal Local Rule 83.8 lacks any real teeth.
The continued increase of uncivil behavior and professionalism among attorneys begs the question, “Why can’t we just be nice?” Sanctionable or not, incivility and gratuitous rancor is unnecessary and is counterproductive. Perhaps then, the more apt question is, “What can we, as attorneys and masters of our own conduct, do about the problem?”
As I was conducting research to write this article on civility in our profession, I began to think about and examine my own conduct that has, at times, been particularly uncivil. It is convenient to hide behind the cloak of “zealous advocacy” in order to justify boorish and uncivil behavior. However, we lose our effectiveness as an advocate when we lose our cool. “We can be passionate without being poisonous.”
Experts grappling with civility and professionalism in the law have found some key ingredients to help advance the standard of civility. Civility and professionalism cannot be legislated; it must be learned – and it takes practice. It also takes cultivating an ethos of civility by law firm partners, Bar leadership, and the Courts. Civility is good for you and for your client. Where then, do we begin?
Connecting with colleagues in professional and personal ways has a profound impact on our ability to be civil when we are on opposing sides. A plethora of research has shown that human connection is a basic human need and critical to emotional maturity and functioning.[ix] Recent research shows that COVID-19, and its disruption to human connections, “stands to threaten all layers of Maslow’s Hierarchy […] with deleterious consequences on our mental health.”[x]
Abraham Maslow pointed to a hierarchy of human needs comprised of five “levels” or categories. According to Maslow’s theory, an individual’s behavior is motivated by the innate desire to fulfill each of these needs. Third in the hierarchy, after physiological needs and security, are “social needs.” That is, the need for friendships, relationships, involvement in organizations, and engaging in group activities. In a word: connection. A landmark study published in the journal Science found an increased risk of death among individuals who lacked human connections.[xi]
It follows that when we connect with our opponents on a personal level, they become more human. It may seem “old school,” but it is critical that we communicate professionally in person or by telephone whenever possible. There is a reason that the discovery rules require parties to meet and confer. When we connect directly with an adversary, we can no longer hide behind the keyboard with a pithy email or text message. Emails and text messaging do not convey intonation, can be misconstrued, and are an easy shield for rudeness and incivility. We are far more likely to resolve issues with less conflict, stress, agitation, and frustration by simply communicating on a personal level.
Another important way to connect is to attend seminars, CLEs, Inns of Court, bar lunches, and other activities with our colleagues and adversaries. This allows us an opportunity to see them in a different context. They are no longer the obstructing force in our client’s way or the source of our heartburn. They become human, and so do we. When you become human with your adversary and connect with them, something magical happens. You begin to empathize. It becomes more difficult to be rude and obstreperous once you build networks and, in some cases, friendships.
Finally, do not underestimate the need to connect with friends and family. What does this have to do with civility in your profession? Well, these connections will give you the strength and resolve you need to be civil in your law practice. Being present and enjoying the company of people you choose to be with increases your wellbeing. When we feel better, we act better. Our ability to grant opposing counsel some grace, or disengage in unproductive bickering, increases as we foster our personal relationships.
It seems almost cliché to suggest that being kind will help you be more civil. However, the truth is, kindness is a component of civility. Forcing yourself to be kind when you do not feel charitable is a real art. It takes practice. Sometimes we fail and have to start over. Granting and receiving the grace to “start over” and be kinder to the individuals with whom you deal is a gift. Do not squander it, but also do not be afraid to take the opportunity to continue practicing kindness. It seems so simple, and yet, it can be so difficult. When kindness is present, it is extremely difficult to be rancorous.
When you are upset and type out an angry email, hold on to that communication until your frustration and anger have subsided. Waiting a day or two could mean the difference between saying something you will later regret and resolving the issue at hand. Being kind and professional is not synonymous with being weak. You do not have to be best friends with opposing counsel. However, holding steadfast to the principle that you will treat others with kindness, will likely earn you the same in return.
Another component of genuine kindness in the context of professionalism is offering an apology when appropriate. This can be a tough one for attorneys. However, an apology does not show weakness nor is it tantamount to an admission against the client or attorney’s interests. If you have stumbled in your attempt to be kind and professional, an appropriate apology will usually go a long way and hurts nothing. An earnest apology (which is not an admission), is a valiant display of emotional maturity. You will garner more admiration and respect from clients and opposing counsel when you can take a bite of humble pie.
In addition to being earnest and avoiding superfluous arguments, you can exhibit other small kindnesses in your practice. For example, providing an extension to opposing counsel when asked, accommodating opposing counsel’s schedule, and treating all individuals with basic dignity and respect. Instead of assuming the worst, provide the benefit of the doubt. Genuinely attempt to work out discovery issues, and avoid self-righteousness. All of these examples are opportunities to practice kindness.
Finally, avoid the opportunity to make arguments and point out errors solely to embarrass opposing counsel or humiliate an opposing party. This tactic will come back to bite you. Not one attorney practicing law today has escaped making an error. Embarrassing and demeaning opposing counsel or an opposing party may be a good show for your client, but it will only ratchet up the rancor. The Judge will be unimpressed. Of course, if action is required for the best interests of your client, you must take that action. Impertinence, however, is unnecessary. Remember, you reap what you sow.
Let’s face it; everyone knows a good lawyer joke or two. Somewhere along the line, attorneys gained a reputation for being slimy, bombastic, cheating, lying thieves. Notwithstanding attorneys’ undeserved reputation, I consider most attorneys to be people of integrity. However, and much to my chagrin, even my integrity has been challenged more than once. Likewise, you may find yourself subjected to the general attorney misperception at some point in your career. When this occurs, reject the notion, as it should always be undeserved.
Do not compromise your integrity for anyone. At the end of the day, all you have is your reputation and the foundation of your reputation is your integrity. It can be difficult to own your mistakes, admit unfavorable facts, disclose unhelpful witnesses, and stand by your word. Do it anyway.
If your primary mission is to win at all costs, then you should consider reexamining your priorities. Review the Rules of Professional Conduct and stay within the lines. When you consistently model integrity in your dealings, you are more likely to win the respect of the Court, clients, and colleagues. You will certainly respect yourself more. I came across a quote published in the Journal of the Association of Business Trial Lawyers that is particularly apt:
Lawyers sell their skills, their seasoned judgment, their advice. They sell their ability to reason, to engage in rational discourse, to present analytically sound arguments. They also sell their reputations and their credibility with the court. To the extent those commodities are squandered by selling their soul to one client, they are less valuable to the next client. Once sullied, reputation and credibility cannot easily be recaptured.[xii]
Keep Friedman’s principle in mind. Guard your integrity as if it were gold.
Be Prepared and Knowledgeable About Your Case and the Law
Be prepared and know the law. It seems simple, doesn’t it? Follow this basic rule, and you will not only appear more competent, you will be. Lawyers who consistently focus on the facts and law of their case rarely find themselves embroiled in personal attacks. Focusing on the case does not mean focusing on the shortcomings of your opponent or proudly exposing the salacious details of a party.
Preparing your case properly requires a thorough understanding of the facts of each case. Do not assume you have heard your client’s story before. A myth about domestic relations cases is that the law rarely changes. While there are generally radical changes to any body of law, new cases do emerge. The rules are frequently modified. If you spend your time staying abreast of changes in the law, you will have less time to concern yourself with petty bickering.
Another important note about being prepared and knowing the law is to avoid spending your time trying to “get away” with whatever you can. If I had a dollar for every attorney who thought they were clever in obstructing discovery, I would be wealthy. If you cannot win a case on its merits, then work to settle it. A good attorney knows when there is no case to build or defend.
Good advocacy is not synonymous with parlor tricks. Taking pot shots at the opposing party, or opposing counsel, whether in oral argument or briefing, is not helpful. Gamesmanship does not win points with any Judge. Playing shell games does not make you look more brilliant than you are. What an attorney really reveals when he or she cannot play fair is that they are not prepared. Manage your time and your client load. Fiercely advocate for your clients based on the merits of the case and your creative thinking.
Clients depend on us to handle sensitive, sometimes life altering legal issues. Such high stakes and heavy responsibility often lead to intense and prolonged stress. Stress takes its toll on civility. Paradoxically, not only do you suffer, but the clients you work so hard to help suffer too. You cannot be an effective advocate while in constant, unrelenting angst. Moreover, when you do not take the time to rest and regroup, you have less emotional capacity to behave in a civil manner. A constant level of stress and pressure over time can turn even the nicest person into a beast. Thus, it is imperative to find a way to manage your stress.
Most attorneys are overachievers, perfectionists, stubborn, and tough. Really tough. You have to be tough in this business. Many in the legal profession chose this career path out of a genuine desire to help people – to champion the cause of “justice.” Often, however, lawyers end up feeling used up and burnt out. Mental health and substance abuse issues are alarmingly high in the legal profession.
Recently, a colleague passed away after an extended illness. A mutual colleague commented on social media, “This business is killing us!” That comment deeply disturbed me, but also deeply resonated. A large-scale study published in the Journal of Addiction Medicine in 2016, looked at the rates of substance use and mental health problems among attorneys in the U.S. It’s not surprising that the study found “substantial rates of behavioral health problems” including “hazardous, harmful, and potentially alcohol-dependent drinking” and significant levels of depression, anxiety, and stress. Sixty-one percent of the lawyers reported anxiety and 45.7% reported depression over the course of their careers.[xiii]
A 2017 survey conducted by the American Bar Association’s National Task Force on Lawyer Well-Being found that 28% of practicing lawyers suffered from depression, 19% had severe anxiety, and 11.4 % had suicidal thoughts in the previous year. In addition, a study conducted by the Harvard Business Review in 2018, found that the practice of law was among the loneliest professions.[xiv]
Attorneys were also significantly more likely to report suicidal thoughts compared with the general working population.[xv] Although actual suicide rates among attorneys appear to vary by region, gender, and age, attorneys are at significantly higher risk of suicide than the general population.
Some critics have challenged the premise that attorneys suffer from comparatively higher rates of mental illness than the regular population.[xvi] Regardless, the available data regarding the hazards to the psychological well-being of lawyers is disconcerting.
We need to ask ourselves then, “What role does the lack of civility among legal professionals play?” Will greater civility reduce the risks of mental health and substance abuse disorders among lawyers? That may be a chicken and egg question that I certainly am not qualified to answer empirically. However, it seems clear that taking care of our personal needs is paramount to becoming the best version of our professional selves.
Part of being the best professional you can be is elevating yourself to a higher level of professional behavior. It follows then, that when we give ourselves the necessary respite, we are more likely to be consistently civil in our professional dealings.[xvii] In so doing, we are also better attorneys for our clients. Incivility in the practice of law increases the costs of litigation and delays proceedings.[xviii]
With the interest of your clients and the legal profession in mind, make time to do the things you love. Be with the people you care about and engage in those activities that bring you simple joy. Easier said than done? Yes. Nevertheless, you and your profession require it. If you do not make time for the things you love to do, no one will make time for you. Engaging in activities that we enjoy increases our feel-good chemicals, decreases incessant thoughts about work, and gives us time to unplug and relax. This in turn increases our ability to tackle high conflict professional situations. Caring for yourself goes hand in hand with setting your boundaries.
Part of the responsibility of taking care of yourself also means getting help if needed. There remains a significant stigma surrounding substance abuse and mental health treatment. The 2017 ABA task force report found that between 40% and 70% of disciplinary proceedings and malpractice claims against attorneys involve substance abuse, mental health, or both.[xix] Lawyers are reluctant to disclose these needs.
All state bars have developed lawyer assistance programs. Lawyers can seek confidential assistance without the fear of reprisal. The assistance is confidential. If you or someone you know needs help, the Lawyer Assistance Program is there. The ABA has a complete directory of lawyer assistance programs by state. The website address is at the end of this article.[xx] The Idaho State Bar’s Lawyer Assistance Program is located on the Bar’s website at: https://isb.idaho.gov/member-services/programs-resources/lap/
Setting boundaries to protect your well-being and mental health is important. While working from home during the pandemic, I broke my own cardinal rule on boundaries. I provided clients with my personal cell phone number. Different people have different philosophies about whether or not to give a personal cell phone number to a client or opposing counsel. I am firmly in the camp of no personal cell phone number for a client. Why? I am not good at boundaries. Recently, I was lamenting and feeling overwhelmed as I had a client in crisis who was texting me on my personal cell phone. By breaking my own boundary, I put myself in a situation that took a toll on my well-being. While it is important to set boundaries, it is just as important to keep those boundaries.
Likewise, it is important to set boundaries on how to deal with colleagues, adversaries, and clients. When the animosity begins to escalate, it can help to deescalate the situation by assertively making your point and ending the interaction. Bullying, intimidation, insults, or harassment are inappropriate and the one engaging in these behaviors needs to be told so. However, if the person remains unreasonable, then disengage completely from the process.
When you fail to set your own boundaries, you will find yourself often embroiled in conflict and acting in unprofessional ways.
Being Part of the Solution
I have always lived by the rule that “if you are not part of the solution, you are part of the problem.” I have no idea who coined that phrase, but it is up to us, as members of the Bar, to be part of the solution. Connecting with colleagues, caring for yourself, managing your practice effectively, being prepared, and focusing on the law are all ways to be part of the solution. Give it a try. Begin by reading the Idaho Standards for Civility in Professional Conduct. Create an action plan for yourself to treat all counsel, parties, and witnesses in a civil and courteous manner – and employ it. We are engaged in a noble profession and acting within the bounds of civility will make you a better, more efficient, and more focused attorney. We can all be nice or, at least, civil.
[i] Standards For Civility in Prof’l Conduct for The Idaho State Bar, United States District Court, District of Idaho and The Courts of the State of Idaho, Adopted by the Courts and by the Idaho State Bar, 2001.
[ii] Aaron Bayer, Tougher Measures for a Continued lack of Civility, Nat’l L. J., October 27, 2014.
[iv] Resolution 1, Commending to the conference of Chief Justices the American Civil Trial Bar Roundtable Policy Paper on Increasing the Professionalism of American Lawyers, Conference of Chief Justices, Adopted January 28, 2015.
[v] In Re Spix, 358 Ga. App. 119 (Ga. Ct. App. 2021).
[viii] Standards For Civility in Prof’l Conduct for The Idaho State Bar.
[ix] A.H. Maslow, A Theory of Human Motivation, Psychological Review (1943).
[x] Sarah L. Hagerty & Leanne M. Williams, The Impact of COVID-19 on Mental Health: The Interactive Roles of Brain Biotypes and Human Connection, 5 Brain, Behavior & Immunity – Health (May 2020).
[xi] James House, et al., Social Relationships and Health, 14 Journal of Science 293 (July 29, 1988).
[xii] Chaplin, Michael, A call for Civility in the Law: But Is the Right Person Listening?, Association of Business Trial Lawyers Journal, Vol XXX No. 1, Fall, 2007, quoting Paul L. Friedman, Fostering Civility: A Professional Obligation, Remarks to the American Bar Association Section of Public Contract Law (1998).
[xiii] Patrick R. Krill et al., The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, 10 J. Addiction Med. 46 (2016).
[xiv] Shawn Achor, et al., America’s Loneliest Workers, According to Research, Harv. Bus. Rev. (Mar. 19, 2018), https://hbr.org/2018/03/americas-loneliest-workers-according-to-research.
[xv] Matthew S. Thiese, et al., Depressive Symptoms and Suicidal Ideation Among Lawyers and Other Professionals, 63 J. Occup. & Env. Med. 381-386 (May 2021).
[xvi] Weiss, Debra Cassens, Conventional Wisdom is Wrong about Lawyers’ comparative Mental Health, But Comparative Drinking Rate is ‘Extraordinary,’ Study Says, ABA Journal, (Feb. 22, 2022).
[xvii] This is my opinion based on my experience in my professional life. I am not so outside the bell curve of a normal attorney that my experience varies greatly from my colleagues. It is common sense and the benefit of hard-learned wisdom that makes it clear to me we cannot be professional and civil to others if we ourselves are miserable. Feel free to draw your own conclusion.
[xviii] “[C]ivility is the responsibility of every lawyer, judge, and litigant in the federal system. While lawyers have an obligation to represent clients zealously, incivility to counsel, adverse parties, or other participants in the legal process undermines the administration of justice and diminishes respect for both the legal process and our system of justice…” U.S. Dist. Ct. Idaho, L.R. 83.8, Fairness and Civility.
[xix] New Study on Lawyer Well-Being Reveals Serious Concerns for Legal Profession, ABA Journal, (Dec. 2017), https://www.americanbar.org/news/abanews/publications/youraba/2017/december-2017/secrecy-and-fear-of-stigma-among-the-barriers-to-lawyer-well-bei/.
[xx] ABA Directory of Lawyer Assistance Programs by state: www.americanbar.org/groups/lawyer_assistance/resources/lap_programs_by_state/.
Melanie E. Baillie is a partner at James, Vernon & Weeks, P.A. Ms. Baillie is the Chair of the Family Law Section of the Idaho State Bar.
What’s the Plan? Housing Issues During Domestic Violence Cases
Jacob B. Workman[i]
Domestic violence (“DV”) training for attorneys is often focused on the violence portion, and with good reason. Violence from a family or household member has a long-lasting and traumatic impact on survivors. However, what sets domestic violence apart from other societal violence is the adjective domestic.
Domestic violence has a significant and unique impact on the household itself, particularly for women and children.[ii] Sixty-three percent of women experiencing homelessness report being victims of domestic violence or sexual assault.[iii] Women who are DV victims are four times more likely to experience housing instability.[iv] This is partly because domestic violence often leads to other contributing factors of homelessness, such as physical injuries, depression, posttraumatic stress disorder, and frequent absences from work or school.[v]
This article aims to give family law attorneys expanded understanding of housing problems that arise in domestic violence cases and tools for mitigating the impact on victims. Though female pronouns for victims and male for abusers have been used, domestic violence occurs in the reverse situation and the LGBTQ community.
Power and Control
Idaho defines domestic violence as actual or threatened physical injury, sexual abuse, or forced imprisonment of a household member, or of an adult in a dating relationship with the abuser.[vi] The Power and Control Wheel developed by the Domestic Abuse Intervention Project shows the patterns and behavior used by abusers to perpetuate domestic violence.[vii] Housing concerns persist throughout the wheel. Here are some examples:
Using Economic Abuse. Many victims encounter an inability to pay for housing without the financial support of a violent partner. Changes to the rental housing market over the past few years have only exacerbated the problem, with the average cost of rent in Idaho jumping 44% since 2020.[viii] Victims are left with the agonizing decision of enduring the abuse or risking homelessness.[ix]
Coercion, Threats, and Intimidation. Abusers use derogatory, hurtful, and violent words that have special meaning to victims based on the abuser’s behavior in the home. Abusers may intimidate victims about damages they have caused to a rental home during the abuse, claiming it is the victim’s fault and that it could lead to her eviction. With limited housing options, abusers use the victim’s basic needs to establish control over her.
Emotional Abuse and Isolation. The seclusion and privacy of the home can become a tool for abusers to act in ways they never would around other people. Because of this, abusers will often try to isolate victims to the home by demanding to know where victims are at all times and interrogating them when they return. This can lead to victims being cut off from friends, family, and employment, which are vital support systems for victims to be able to end their abuse.
Minimizing, Denying, Blaming, and Male Privilege. Gaslighting is a real struggle for victims to overcome.[x] Abusers may develop a “king of the castle” mentality where because he pays the bills, he makes the rules. This can lead to abusers using those rules to normalize their own abusive behavior as acceptable, appropriate, or even deserved, and can distort victims’ ability to identify or believe in the abuse.
Using Children. Many abusers know how to manipulate a victim based on her concern for her children’s needs, such as housing. Sadly, this sometimes means short-term needs (e.g., where they will sleep tonight) take over long-term needs (e.g., ending an abusive situation) to the benefit of the abuser.
What’s The Plan?
Maybe the most powerful three words you can say to your client are: “What’s the plan?” While clients experiencing domestic violence often have many different problems they would like to solve, your ability as an attorney is to advise on legal solutions to legal matters. Asking “What’s the plan?” allows you to identify shared material goals between you and your client.
What type of living situation does the client want to be in a year from now? What personal or family resources does the client have? What community resources are available? What sort of achievable change would help the client? These types of long-viewed conversations, combined with your legal advocacy and knowledge, can lead to real and lasting stability for your client and any children she has in her care.
Immediate and Long-Term Need
Often, domestic violence cases will come to your office through an ex parte Civil Protection Order (“CPO”) with a pending extension hearing, a No Contact Order issued in a criminal case regarding violence between family members, or a new divorce or custody case. No matter your client’s situation, discussing housing is an immediate priority.
There are a variety of rental and ownership arrangements that can affect your client, including (1) when a CPO is in place, (2) when VAWA may apply, (3) when the victim is not listed on the lease to the dwelling, (4) when there is no formal lease, (5) when the home is solely owned by the abuser, or (6) when there are mounting rent/mortgage/utility payments. It is crucial to understand your client’s current housing situation, what housing changes might be inevitable, a potential timeline, and any changes that might improve your client’s situation in the long-term.
Regarding a CPO situation, Idaho Code § 32-6306(1)(c) empowers the court to specifically exclude an abuser from a shared dwelling or the home of the victim.[xi] Section 3 of the CPO petition[xii] developed by the Court Assistance Office provides the court with the information needed to make a short-term ruling on housing. Completing this section correctly is crucial to getting immediate help. If you run into issues enforcing a move-out order, domestic violence CPOs are expressly governed by the Idaho Rules of Family Law Procedure.[xiii] I.R.F.L.P. Rule 811 allows you to seek a Writ of Assistance for an order of possession.[xiv]
Many landlords, when approached by a DV victim, are sympathetic to the situation but will desire to stay out of it. If a CPO is issued, providing a copy to the landlord can be appropriate so they know the abuser cannot be on the property. Problems can occur when the victim is not listed on the lease, or it is a month-to-month situation. Some leases in Idaho consider law enforcement involvement at a rental unit to be a lease violation, which may unfairly prejudice domestic violence victims under the Fair Housing Act.[xv]
When a victim is not a signer on a lease, and the lease is month-to-month or verbal, one option is to approach the landlord about creating a new lease with her for the unit. It may require notice to be given to the abuser to terminate the abuser’s lease interest under Idaho Code § 55-307. Such a change would be more difficult if the unit is under a current lease term, but the abuser may agree to rescind the lease if there is a CPO barring him from being there for a substantial amount of time, especially if the agreement would end his financial obligation under the lease.[xvi]
The Violence Against Women Act (“VAWA”) contains protections for DV victims in certain rental situations.[xvii] Though VAWA gets “reauthorized” every few years, the reauthorization is for program funding under the Act and the housing protections remain in effect regardless.[xviii] To qualify for the protections, the victim needs to be in a “covered housing program” listed under 34 U.S.C. § 12491(a)(3). Review the lease or research the property where the rental is located to determine if VAWA applies.[xix] VAWA does not apply to private landlord situations, even when the victim has a Section 8 Voucher.[xx]
If VAWA applies, the victim will be protected from (1) being denied housing because she is a DV victim, (2) being evicted or losing federal rental assistance because she is a DV victim, and (3) being evicted for “good cause” or having a lease violation due to DV by the abuser in the unit. Victims do not need to be married to or live with the abuser for VAWA protections to apply. More information on VAWA housing protections is available through Idaho Legal Aid Services’ website. VAWA forms that can be used to assert a victim’s rights are available through the U.S. Department of Housing and Urban Development’s website.[xxi]
Abuser as the Homeowner
Sometimes, a cohabitating unmarried couple has a domestic violence situation resulting in the abuser being ordered to leave the home while the victim (and children, if any) remains. On occasion, the abuser who received the move-out order is the sole homeowner. Victims in these situations have no community property laws to rely on and most parties lack a formal contract or written agreement for the living arrangement. Idaho Code § 32-6306(3) specifically states, “[n]o order made under this chapter shall in any manner affect title to real property.” The victim is left in a tough spot where the court is allowed to exclude an abuser from a shared residence but the victim’s legal right to remain is more akin to a tenancy at will under Idaho Code § 55-208[xxii] than an ownership or marital right.
In these situations, the victim will not be able to stay indefinitely and should begin to make plans to move. The abuser could potentially turn to landlord tenant law and provide a 30-day written notice to the victim to vacate.[xxiii] Even if notice is provided or the victim vacates, the address of the CPO’s stay-away order will require court action to modify. The victim should keep a copy of the CPO and evidence she lives in the property (e.g., mail with the resident’s address and her name) close at hand in case it is needed.
Threat of criminal trespass by the abuser is inappropriate given the court’s authority to award temporary possession of a shared dwelling addressed previously. A forcible detainer action by the abuser is also inappropriate given that the victim almost certainly did not begin to reside in the shared dwelling by force, menace, threat of violence, or entering unlawfully while the owner was away.[xxiv] Ultimately, the abuser’s common law claim of ejectment, as opposed to statutory unlawful detainer, may be the most appropriate in these situations because a landlord-tenant relationship was never formally established and rent was never exchanged.[xxv]
For CPO extension hearings, identify these situations and come prepared with a proposed plan if it comes up (e.g., the victim needs 30 days to find a new place after the abuser attacked her).
Payments and Temporary Orders
When an abuser is removed from a home, much of the home’s income may go with him. CPOs do not typically include provisions for an abuser to pay rent or the mortgage on a home that he was just removed from. Victims will need to move toward becoming self-sufficient no matter what their housing plans are.
If there is a divorce or custody case, temporary orders under I.R.F.L.P. Rule 504 can be a solution. Make sure to include not just the rent or mortgage in your request but also utilities and who should pay them. Temporary child support may be the easiest way to keep the children housed. If there is any community interest in the property then it may be appropriate to request both parties help pay the mortgage no matter who is living there temporarily, subject to reallocation upon final judgment.
The more a DV victim can do to become independent, or at least less dependent on the abuser, the better. Community resources can be utilized. If you do not know where to start, have your client call 2-1-1 or visit https://211.idaho.gov/. Additionally, victims may qualify for emergency rental assistance through the Idaho Housing and Finance Association at https://www.idahohousing.com/. Your client may want to apply for a Section 8 Voucher as part of a long-term plan, though the wait list can be around two years. Your local Community Action Partnership or domestic violence center may have other resources. A list of subsidized housing options is found above.[xxvi]
Specific Issues Regarding Kids
Getting your client time to stabilize after leaving a domestic violence situation can affect the court’s considerations regarding the best interest of the children under Idaho Code § 32-717. Housing concerns are present in every factor in that statute. Adjustment to home, school, and community. Interactions with siblings and family members. Character and circumstance of people around the children. Continuity and stability in the children’s daily lives. All of these considerations can be boiled down to housing questions.
I offer two suggestions regarding kids in DV housing situations. First, having to move due to DV may qualify the children as “precariously housed” under local school district guidelines, even if temporarily. Talk to your clients about reaching out to the school district where the children reside. This can open up options for the children, such as additional bussing to remain at the same school, free or reduced cost meals, and tutoring.
Second, losing your housing as a child can be a traumatic event, especially when combined with DV. Fifteen million children in the United States live in homes where domestic violence has occurred at least once.[xxvii] Daily routine, possessions, privacy, friends, community – all of these can be abruptly gone for a child.[xxviii] There is evidence to show kids who are precariously housed get sick at twice the rate of other children, have three times the rate of emotional and behavioral problems, and are twice as likely to repeat a grade.[xxix]
Sadly, these are things an abuser might use to justify a request for primary custody, even though their abuse created the situation. Encouraging your client to contact Health and Welfare’s Navigation through 2-1-1 or their local domestic violence center for resources that are specific to the children’s physical and mental health can impact potential custody litigation and the children’s long-term wellbeing.
Healthy family relationships are knit together by having a place to be together. If we learned anything from the COVID-19 lockdown, it is that “home” is crucial to our wellbeing and safety. The same goes for people leaving domestic violence situations. As attorneys, asking “What’s the Plan?” and obtaining a legal framework for a family to remain housed together after a DV incident will positively support every aspect of the family’s life going forward.
[i] Managing attorney at Idaho Legal Aid Services practicing family and housing law. Thanks to Fred Zundel and Megan Baiocco for all your help with this article.
[ii] National Network to End Domestic Violence, The Impact of Safe Housing on Survivors of Domestic Violence, https://nnedv.org/spotlight_on/impact-safe-housing-survivors/ (last visited October 25, 2022).
[iv] Cris M. Sullivan & Linda Olsen, Common Ground, Complementary Approaches: Adapting the Housing First Model for Domestic Violence Survivors, 43 Housing and Society 182, (2017).
[vi] Idaho Code § 39-6303.
[vii] National Domestic Violence Hotline, Power and Control, https://www.thehotline.org/identify-abuse/power-and-control/ (last visited Oct. 25, 2022).
[viii] Zach Bruhl, Idaho Sees One of the Highest Rent Increases Nationwide, KMTV 11 (Jul. 6, 2022), https://www.kmvt.com/2022/07/06/idaho-sees-one-highest-rent-increases-nationwide/.
[ix] See Sullivan, supra note 5.
[x] Gaslighting means manipulating someone to the point of him or her questioning reality. Amanda Kippert, A Guide to Gaslighting, https://www.domesticshelters.org/articles/ending-domestic-violence/a-guide-to-gaslighting (lasted visited Oct. 25, 2022).
[xi] Idaho Code § 39-6306.
[xii] Court Assistance Office, State of Idaho Judicial Branch, https://courtselfhelp.idaho.gov/docs/forms/CAO_DV_1-1.pdf (last visited Oct. 25, 2022).
[xiii] I.R.F.L.P. Rule 101 (note that stalking CPOs are covered under the civil rules and not the family law rules).
[xiv] I.R.F.L.P. Rule 811.
[xv] Lease clauses like these can be grounds for a Fair Housing complaint filed with HUD at https://www.hud.gov/fairhousing/fileacomplaint%20.
[xvi] Idaho Code § 39-6306.
[xvii] Monica McLaughlin & Debbie Fox, Housing Needs of Survivors of Domestic Violence, Sexual Assault, Dating Violence, and Stalking, National Low Income Housing Coalition, 2022 Advocate’s Guide, https://nlihc.org/sites/default/files/2022-03/2022AG_6-02_Housing-Needs-Victims-Domestic-Violence.pdf.
[xviii] 34 U.S.C. § 12491.
[xix] Subsidized housing searches in Idaho: https://rdmfhrentals.sc.egov.usda.gov/RDMFHRentals/select_state.jsp, https://resources.hud.gov/, https://www.hud.gov/sites/dfiles/State/documents/ID-Affordable-Apts.pdf, and https://www.thehousingcompany.org/properties/. You can also look up the property on Idaho’s GIS Parcel Maps https://maps.idahoparcels.us/web/ or review the property’s website for subsidy information.
[xx] Women’s Law, VAWA Housing Protections, (last updated September 17, 2021) https://www.womenslaw.org/laws/federal/vawa-housing-protections.
[xxi] Forms available at https://www.hud.gov/program_offices/housing/mfh/violence_against_women_act on the right side of the menu.
[xxii] “A tenancy at will has no fixed terms while a periodic tenancy automatically continues for successive periods.” Caldwell Land & Cattle, LLC v. Johnson Thermal Sys., Inc., 165 Idaho 787, 798, 452 P.3d 809, 820 (2019).
[xxiii] Idaho Code §§ 55-208 and 55-307.
[xxiv] Idaho Code § 6-302.
[xxv] “Ejectment is an action at law that tests the right to the possession of real property as against one who presently possesses it wrongfully. In other words, ejectment is an action filed by a plaintiff who does not possess the land but has the right to possess it against a defendant who has actual possession.” 25 Am. Jur. 2d Ejectment § 1; “The sole issue before a court in [an eviction] proceeding (after determining that a landlord-tenant relationship exists) is the question of who has the right to possession.” Texaco, Inc. v. Johnson, 96 Idaho 935, 938 (1975).
[xxvi] Supra note 19.
[xxvii] Office on Women’s Health, Effects of Domestic Violence on Children, https://www.womenshealth.gov/relationships-and-safety/domestic-violence/effects-domestic-violence-children (last visited Oct. 25, 2022).
[xxviii] Ellen L. Bassuk & Steven M. Friedman, Facts on Trauma and Homeless Children, National Child Traumatic Stress Network Homelessness and Extreme Poverty Working Group, 2005, https://www.nctsn.org/sites/default/files/resources/facts_on_trauma_and_homeless_children.pdf.
Jacob B. Workman is a managing attorney at Idaho Legal Aid Services where he practices primarily family and housing law. He maintains a personal law blog for young lawyers at seegenerally.com.
ISB President’s Message: Embrace Our Promise
Idaho State Bar
The sun is inching toward the horizon on my term as a member of the Board of Commissioners and the President of our bar. I have enormous respect for the commissioners I have served alongside as well as the incredible individuals at the Idaho State Bar. The thoughtfulness and care that goes into the operation of the bar together with the tireless dedication and professionalism of each of these individuals is extraordinary. The leadership and influence of Diane Minnich, Maureen Ryan Braley, Joe Pirtle, Julia Crossland, and Brad Andrews will stay with me always.
As I reflect on my term as a commissioner, many things come to mind. One of which is how grateful I am that the shut-down caused by the pandemic finally lifted and we were able to see one another in person. Although it is wonderful that technology allowed us to see and visit with one another online, the difference between meeting in person rather than virtually is significant. The annual Roadshow is one of the events where this difference was particularly notable. Each year during my term, the Roadshow has had a different format. The first year there were no in-person events and the second year there was a mix of live and Zoom programming. November of 2022 was the first time the Roadshow was in person in every district of the state. For me, it is clear that the opportunities we have to be together in person are to be cherished. We relate to one another on a different plane when we are face to face. When face to face, we connect as people in a way that is different than when we are looking at one another on a screen. Thank you to everyone who attended in any of the districts. And a special ‘thank you’ to the attorneys in Blackfoot who got up early to have breakfast with the Board of Commissioners during our stay in Eastern Idaho. The conversations I had there and the relationships I observed between attorneys who practice in an environment where every practitioner is known to the others really made a mark on me.
At each stop along the road, I met new people, and I thank each of them for being so welcoming and sharing in conversation. At each stop, I was also lucky to have a front row seat as the accomplishments of attorneys and judges were celebrated. Each occasion was a spotlight on the extraordinary contributions attorneys make to their communities and the special relationships attorneys in our state have with one another. Throughout Idaho, attorneys are making a meaningful mark on the places they call home. They provide counsel to individuals starting new businesses and bring peace of mind to their neighbors when they assist with an estate plan. They are the polestar for clients navigating the unfamiliar and unsettling territory of litigation. But attorneys don’t just confine their contributions to the workplace. They also enhance their communities by serving on boards, fundraising, and volunteering. This devotion attorneys have to their communities got me thinking about the myriad of ways attorneys can make an impact.
During this era we live in, I’ve felt that some long-held beliefs have been severely challenged. Confidence in our institutions of governance is slipping while at the same time, many Americans are not equipped to defend the democratic ideals at the heart of our Republic. There is evidence that many in our country hold a tenuous grasp of key civics knowledge. The Annenberg Constitution Day Civics Survey has found that many Americans do not understand basic facts about how our government works. According to the 2022 survey, less than half of U.S. adults could name all three branches of government. Between 2021 and 2022, the number of respondents who could, without any prompting, name each of the five freedoms guaranteed by the First Amendment declined.
These startling findings provide members of our bar with an opportunity to make an impact. An impact that also fulfills our professional obligations. As attorneys, we have a responsibility to promote the rule of law, defend liberty, and pursue justice. The preamble to the Idaho Rules of Professional Conduct tells us:
“A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice.”
“In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.”
”Lawyers play a vital role in the preservation of society.”
We can help combat America’s democratic decline by supporting and contributing to fair and unbiased civics education. Knowledge gained from civics education can be used as a tool to address distrust in government institutions and boost confidence in the rule of law and the justice system. There are a number of organizations working to expand civics education. The Center for Civic Education and the ABA Division of Public Education are just two of many. Closer to home, we have Attorneys for Civic Education. The organization was founded in 2013 by a group of Idaho attorneys who recognized the critical nature of civics education in Idaho’s schools. Attorneys for Civic Education seeks to both increase and sustain the opportunities for civics education in Idaho’s schools helping to ensure that Idaho’s citizens have a solid understanding of the Constitution, the rule of law, and our form of government.
Let us all embrace our promise to promote the rule of law, defend liberty, and pursue justice. Whether we do this as volunteers in a classroom, as a member of the various organizations we belong to, or simply in the conversations we have with those around us, we can foster a healthy, educated citizenry. I’m grateful for the opportunity I’ve had to contribute to the Idaho State Bar. When the day comes that the sun sets on my term, I will be sad, but I will cherish the experience and the memories.
Kristin Bjorkman is a principal with the Boise law firm Bjorkman Dempsey Foster where her work is focused on real estate and business matters. Having lived in Salmon, Burley, Moscow, Coeur d’Alene, and Boise, Kristin knows a thing or two about distances between places in Idaho. When she’s not in the office you might find Kristin outdoors on her bike, running on the greenbelt, or making a playlist of music hits from the 80s. She and her husband, Rob, have two children.
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