Fonda L. Jovick
President
Idaho Law Foundation

Happy New Year to you and your loved ones! In July, I began my term as President of the Idaho Law Foundation, taking over for Kari Campos. It’s an honor to serve in this role and I want to thank Kari for setting such a great example of what it means to be a strong leader for the Idaho Law Foundation.

I love this time of year. For me it always feels like the one time of the year when we look back and forward at the same time. We wrap up a period of celebration and set course for the new year ahead of us.

As we take stock of our year at the Foundation, we have a lot to be proud of. We have achieved so much more than I could reasonably share in this article but here are some highlights from our most recent annual report:

• 654 donors gave $146,147 to the Foundation and our programs
• 541 volunteers served 6,770 volunteer hours
• The Idaho Volunteer Lawyers Program processed 2,800 requests for pro bono legal services, opened 582 cases, and provided legal services for 516 individuals and families
• Law Related Education hosted a Constitution Day Event attended by 420 people including 118 attorneys, 27 non-attorney community members, and 275 students from 15 schools

When I use the word “we” in the context of Law Foundation accomplishments I include all Idaho attorneys. As you may know, attorneys licensed to practice law in Idaho are also members of the Idaho Law Foundation. Those of us who work for and with the Foundation do what we do both for our legal community and because of our legal community. So, thank you to all of you who continue to support our work.

As lawyers, it’s a key part of our profession to rely on evidence. Working to shine a light on the facts is a staple of what we do. For me, it’s important that I apply those same concepts to other parts of my life, reviewing important data as it relates to the work we do at the Foundation. Here are a couple important statistics to consider:

1. The Legal Services Corporation reports that each year 74% of low-income households experience at least one civil legal issue and 92% are not able to access the help they need.
2. The Annenberg Public Policy Center found that students who participate in civic education activities have significantly higher understanding of how our government and legal system impact their lives.

I realize that this is fairly dry information, but it’s important to share as a way to point out that the Idaho Law Foundation is one organization that is working to provide solutions to these societal issues. It’s right there in our mission: The Idaho Law Foundation supports the right of all people to live in a peaceful community through increasing access to civil legal services and enhancing public understanding of the law and our legal system.

This mission is always at the forefront of everything we do. It guides what we have done in years past and will frame our work in the year to come.

In 2023, the Idaho Volunteer Lawyers Program (“IVLP”) will continue their work to close the justice gap by creating access to civil legal services for low-income individuals and families who cannot afford legal representation. IVLP will build on their solid and proven track record for matching pro bono attorneys with people in need of direct legal representation and grow their legal clinic model. They will also work to innovate how they provide services through activities like the new Emeritus Program developed in partnership with the Idaho Supreme Court to engage retired attorneys in meaningful pro bono activities.

In the year to come, Law Related Education (“LRE”) will continue to bolster civic education in Idaho. From mock trial to Constitution Day to our popular 18 in Idaho publication and website, LRE will ensure that Idaho students have access to better understand the law and our legal system. In 2023, LRE has plans to extend our mock trial program to middle school and is partnering with DisAbility Rights Idaho to ensure our materials include information for Idahoans with disabilities.

As it is in every year, I am confident that Law Foundation programs will work diligently to support our mission. And of course, we know that we can rely on you, our Idaho attorneys, as our partners in this important work. To that end, we ask that you consider supporting our programs. You can donate when you fill out your annual licensing form or visit us online at idaholawfoundation.org to donate or sign up to volunteer for one of our programs

As I sit here considering both the past and future of the Idaho Law Foundation, I can share that I am proud to be part of an organization that does such good work in all parts of Idaho. It’s a joy and honor to get to work with the staff, Board, and volunteers who participate in the Foundation. As we set course for the year to come, I invite you to be part of it.

If you have any questions about the Foundation or our programs, contact Carey Shoufler at cshoufler@isb.idaho.gov.

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Jessica Perez

The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”)[i] is a familiar friend to all family law practitioners. It is the heart of a state’s ability to make a child custody determination. On one hand, the UCCJEA is a well-organized statute broken up into four parts. The General Provisions govern definitions, appearance, limited immunity, etc. The Jurisdictional provisions govern initial child custody jurisdiction, temporary emergency jurisdiction, simultaneous proceedings, and exclusive, continuing jurisdiction, as well as numerous other issues.

The Enforcement provisions include registration of a child custody determination from out of state, recognition and enforcement of an out-of-state custody determination, and more. Finally, the UCCJEA gives us the short Miscellaneous Provisions, which includes the application and construction of the statute, a severability clause, and transitional provision.  Each of those four parts is critical for its own reason. At some point, each family law practitioner has, or will, come across a case whose facts will trigger different and/or multiple sections of the UCCJEA.

On the other hand, the provisions of the UCCJEA can be very nuanced. The most common and usually the first question is, where is the child’s home state?  This question sounds fairly basic but in actual practice it can be incredibly difficult to pinpoint where the child’s home state is. This question is crucial to answer because in order to know where to file your divorce or custody action, you must establish which state has initial jurisdiction to make and enter a final child custody determination.

To do that, you must answer that first question, where is home or more specifically, where is there home state jurisdiction? This can lead to jurisdictional fights before a divorce or custody action has even taken off.  Jurisdictional issues are particularly common along those Idaho towns that share a border with a neighboring state.

In order to really put the UCCJEA and the importance of understanding home state jurisdiction into context, it is helpful to look at a hypothetical. Say you consult with Husband, Viz; you ask your detailed questions and discover that he and Wife, Wanda, have been separated for a year.  Wanda moved to Idaho at that time and has been working in the healthcare industry in Idaho. Viz remained in Oregon but is an engineer in Idaho. The parties have real property in Oregon. The twin minor children, Billy and Tommy, age two, have been going back and forth between states in a manner that you believe either state could exercise home state jurisdiction.

Daycare is in Oregon as are the majority of the extended family members.  Idaho has a presumption in favor of joint custody, whereas Oregon courts cannot award joint custody unless the parties agree to joint custody. Perhaps the facts of that consult lead you to believe that sole custody for Viz would be in the children’s best interest. There’s also the fact that Idaho is a community property state and Oregon is not (for our purposes here, that is an issue for another time). Additionally, it would just be easier to deal with the divorce assets in an Oregon Court. The bad news is, Wanda has already retained counsel and filed for divorce in Idaho.

The consult, the questions, and where to start

Initial child custody jurisdiction is set forth in Idaho Code 32-11-201(a), which provides, in relevant part, as follows:

“(a) [A] court of this state has jurisdiction to make an initial child custody determination only if: (1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six (6) months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state[.]”

What is this “home state” that section (a)(1) is talking about? The definitions section in I.C. 32-11-102(g) tells us that home state is “the state in which a child lived with a parent or a person acting as a parent for at least six (6) consecutive months immediately before the commencement of a child custody proceeding.”  This is where math comes into play.  Fortunately for us attorneys, it’s pretty simple math. For children less than six months old home state “means the state in which the child lived from birth with any of the persons mentioned.” Id. 

Determining where the child has lived for the purpose of home state jurisdiction means attorneys should look back to six months from the date they are planning on filing their petition and ask their client lots of questions. Questions such as where the child or children have been within that timeframe, on what dates, for how long, and what their connection is with the previous state (if any). The connections to the other state can be anything from where the children go to school, where are their doctors, to whether they are members of a club in another state.

Since the UCCJEA is adopted in all states, these same rules apply across the board. Remember, I.C. 32-11-201(a)(1) says Idaho is the “home state of the child within six months before the commencement of a proceeding and the child is absent from this state but a parent…continues to live in this state.”  It does neither party or the attorney any good to file in Idaho on behalf of the Idaho parent if the minor child had been equally in Oregon and the other parent still resides in Oregon, and the child is more connected to Oregon. That Oregon parent is also looking at their state’s UCCJEA and thinking, “well, is it not obvious that even though the minor child is absent from this state, I am still here and so Idaho should not have home state jurisdiction?” Or maybe the Oregon attorney is thinking that for their client?

Of course, if your client is telling you the child has been in Idaho his or her entire life, this is not an issue. On the other hand, if your client is telling you that the other party lives in Oregon, or perhaps your client moved to Idaho only a few months ago and the parties are sort of doing their own parenting plan and the child is going from Idaho to Oregon (or Utah or Washington) every so often, then you know right out of the gate that you should do your due diligence and make sure you are asking the right questions and filing in the appropriate state. This can be as simple as pulling out a calendar and adding up the days the child or children have been in Idaho. In some instances, that may lead to a split that could go either way in favor of Idaho having home state jurisdiction.

The argument for declining jurisdiction

Even if Idaho is not the home state, Idaho can potentially still make an initial child custody determination. This scenario is provided for in I.C. 32-11-201(a)(2), which provides that Idaho may exercise initial child custody jurisdiction when:

“A court of another state does not have jurisdiction under paragraph (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under section 32-11-207 or 32-11-208, Idaho Code, and: (A) The child and the child’s parents, or the child and at least one (1) parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and (B) Substantial evidence is available in this state concerning the child’s care, protection, training and personal relationships.”

In cases where home state jurisdiction is in question, once the other state that could exercise home state jurisdiction has entered an order declining jurisdiction based on Idaho being a more appropriate or convenient forum, then Idaho can safely exercise initial child custody jurisdiction. Only then can Idaho make and enter a child custody determination.

Knowing these little nuances can also help an attorney attack jurisdiction on the Idaho side as well. While we all enjoy practicing in Idaho, for one reason or another you might decide that it’s best for your client’s case and in the best interest of the child that your client file in a different state. This could be for any number of reasons, such as the law in the other potential home state may be more favorable to your client, or simply because you’ve looked back those six months and determined there is no way Idaho is the home state. In the case of the law of another state being more favorable you would of course want Idaho to decline jurisdiction. This is where being licensed in that other state or even having a colleague to call and discuss the jurisdictional issue with is helpful.

In these situations, it also becomes evident that sometimes, especially in a divorce matter, the home state issue and where you are going to challenge jurisdiction is heavily influenced by the parties’ assets or where it might be easier to get an order for spousal support. This is not to say that any of these reasons should undercut your ability to look at what is in the best interest of the child.

Let’s return to Viz and Wanda. For Viz and the best interest of the children, you need Idaho to decline jurisdiction and enter an order that the other state is the more convenient forum. Idaho Code 32-11-207 allows the Idaho courts to analyze certain factors in order to decline jurisdiction based on Idaho being an inconvenient forum. In order for the court to determine that it is an inconvenient forum, it must first decide that another state – Oregon in our couple’s scenario – is an appropriate state to exercise jurisdiction.

To do that, the UCCJEA has provided a list of factors for the court to analyze. That non-exhaustive list includes: (1) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child; (2) The length of time the child has resided outside this state; (3) The distance between the court in this state and the court in the state that would assume jurisdiction; (4) The relative financial circumstances of the parties; (5) Any agreement of the parties as to which state should assume jurisdiction; (6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child; (7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and (8) The familiarity of the court of each state with the facts and issues in the pending litigation.

All those detailed questions and digging into the connection between the child and the state are going to pay off at this point. Now is your chance to tell the court about those connections as they relate to the I.C. 32-11-207 factors, and Oregon being the child’s home state for the purpose of entering a child custody determination.

The argument for retaining jurisdiction in Idaho

If you represent Wanda in this scenario, you want Idaho to keep jurisdiction. You are arguing that Idaho is in fact the home state and it should exercise home state jurisdiction. Even if the other state could exercise jurisdiction, Idaho is the more convenient forum for our case.

Let’s say you discover there is also a piece of real property in Idaho, or maybe the majority of both parties’ extended family members are in Idaho. Since Idaho courts can decline to exercise its jurisdiction, these types of facts are crucial in persuading the judge that another state is not a more appropriate forum. Idaho Code 32-11-207(b) tells us that Idaho courts must consider whether a court of another state is the more appropriate forum before declining jurisdiction.

Idaho courts need to be able to point to the evidence and back up their analysis on why Idaho has jurisdiction to make a child custody determination under the UCCJEA. As Wanda’s attorney, you are still using those 32-11-207 factors to analyze the evidence and the facts in a way that demonstrates that the Idaho court has the stronger position and should not decline jurisdiction or find that Oregon is the more convenient forum.

Alternatively, suppose Viz filed in Oregon first and Wanda successfully challenged Oregon’s jurisdiction.  As Wanda’s Idaho attorney, you are going to want to show the Idaho Court that Oregon has already entered an order declining jurisdiction. This goes back to I.C. 32-11-201(a)(2)(A)-(B). However, Idaho courts will also be looking for evidence that the children, or at least one of the parents has a “significant connection” with Idaho, something that is more than just “mere physical presence.” Id. Additionally, the court will need to see that “substantial evidence is available in [Idaho] concerning the children’s care, protection, training and personal relationships.” Id.

All those initial questions that you ask your client are going to be helpful regardless of which side you are on. We know both parties work in Idaho and Wanda has established a residence in Idaho for a year. You can therefore use the I.C. 32-11-207 factors as a guide to demonstrate on Wanda’s side, why Idaho has jurisdiction to make the child custody determination. Ultimately, in our couple’s scenario, regardless of who you represent, the children’s home is where the evidence and more persuasive argument say it is.  There are many different facts that can change a case and change the connection to the state that will then impact what is considered the child’s home state. It is crucial that attorneys ask those questions about the connection to the state when there is a move involved or when there is any hint that there may be an issue determining where the child’s home is for the purposes of UCCJEA. As we’ve just seen, a child’s home is a fact-specific inquiry.

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[i] The UCCJEA is codified in Idaho Code 32-11-101 to 32-11-405. All references to the Idaho Code are also references to the UCCJEA.

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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

Mirror Neurons

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

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1. Idaho Rules of Professional Conduct, Preamble [2].
2. Id., Rule 2.1, n.[4] (“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.”).
3. 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.
4. Hilary Scarlett,  Neuroscience for Organizational Change: An Evidence-based Practical Guide to Managing Change(Kogan Page Limited, 2016).
5. Amy Arnsten, Stress signaling pathways that impair prefrontal cortex structure and function, Nature Reviews Neuroscience (2009).
6. 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.
7. Elizabeth Loftus, Memory(Ardsley House Publishers, 1988).
8. Andrew Newberg M.D. & Mark Robert Waldman, Words Can Change Your Brain (Penguin Press, 2015).
9. John Gottman, The Four Horsemen: Criticism, Contempt, Defensiveness, & Stonewalling, https://www.gottman.com/blog/the-four-horsemen-recognizing-criticism-contempt-defensiveness-and-stonewalling.
10. David Rock, Quiet Leadership(Harper Collins Publishers, 2006).
11. David Eagleman, The Brain(Pantheon Books, 2015).
12. Bill Eddy, High Conflict People in Legal Disputes 164 (Unhooked Books, 2nd ed., 2016).
13. 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.
14. 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.
15. Brandon & Fisher, Mediating with Families 30 (Thomson Reuters, 4th ed., 2018).
16. 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.
17. 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.

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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]

Conclusion

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]

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[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. 

[vii] Id.   

[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.

¹⁶ Id.

[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.

[xxviii] Id.

[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).

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Jennifer Beckstead

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.

Vicarious Trauma

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.

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[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.

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