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]
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.