Trauma-Informed Law Practices
by Thomas James, Minnesota attorney
Lawyers generally are not psychologists or trained in trauma care. They are often called upon to enter into close working relationships with people who have experienced or are experiencing trauma, though. As knowledge about the prevalence of trauma and its impact grows, a basic understanding of trauma and how to adapt a law practice to accommodate it is coming to be viewed as a core competency for attorneys.
The need for trauma-informed practices
Attorneys need to be able to engage in meaningful communications with their clients. A client with a history of trauma may have trust issues that can impede the client’s ability or willingness to speak candidly. The client, for example, might not trust an attorney’s assurance of confidentiality. Additionally, certain kinds of traumatic experiences, such as child sexual abuse, can produce unjustified feelings of guilt, shame or embarrassment, resulting in an overwhelming fear of being judged negatively. This, too, can impede meaningful communication.
Childhood trauma can profoundly affect cognitive and psychological development for years to come, changing the way a person processes information and communicates with others. This has obvious implications for such basis professional tasks as gathering information from a client, explaining legal rights and processes, and advising a client about case-related matters.
An argument can be made that attorneys should strive to act in their clients’ best interests in general, not just as a means to a specific case-related end. In any event, attorneys should attempt, at a minimum, to avoid re-traumatizing their clients. Understanding trauma responses can go a long way toward that.
Common effects of trauma
Fear. Fear, of course, is a natural response to crime victimization, abuse, neglect, and endangerment. Exposure to an acute or chronic threat, however, may cause a person to have a heightened sense of fear that may seem unreasonable or irrational to an outside observer. Something that is not inherently threatening in itself might remind a trauma victim of a past trauma, triggering a fear response.
Distrust. People who have experienced abuse, neglect or endangerment at the hands of a parent or other trusted person are very likely to have difficulty trusting other people — including their attorneys in some cases.
Emotional outbursts. A person who has experienced trauma may have difficulty regulating their emotions.
Dissociation. Instead of becoming hyper-sensitive to potential threats, a person who has experienced trauma may undergo an avoidance kind of response. This involves detaching from the feelings associated with the trauma experience. In some cases, it can also mean denying or distancing oneself from the reality of the experience itself.
Impaired expression. A person who has experienced trauma might not have the ability to communicate information in the clear, orderly way that an attorney would like. Moreover, people who have experienced child sexual abuse may have been strongly discouraged from disclosing things, either by the perpetrator or by family members who, for one reason or another, do not want to hear about it and/or do not want other people in the community to know about it. Child abuse victims may also have been made to feel responsible for their own victimization, which means they may have to work their way through a thick barrier of shame before they can talk about it.
Impaired information processing. The combined effect of any or all of the other effects of trauma can interfere with a person’s ability to process information. For example, a client whose fear response has been triggered — whether in the form of hypersensitivity to a real or imagined threat, or avoidance — is likely to miss a lot of what is being said.
Indecisiveness. A person who has experienced trauma may have difficulty making decisions.
Elements of a trauma-informed law practice
Awareness. Being aware of a client’s trauma and the nature of his or her response(s) to it is probably the most important element of a trauma-informed law practice.
Patience. Next in line after awareness is patience. This can be a difficult skill for an attorney to master. Attorneys typically have busy schedules. They also have a desire to “cut to the chase” during client and witness interviews. Obviously, a client who dissociates or has an impaired ability to communicate, process information, and/or make decisions can try a busy attorney’s patience.
Empowerment. An attorney may need to work a little harder to foster a feeling of empowerment in a client who has experienced trauma.
Predictability. Attorneys, of course, should always explain to their clients the applicable legal processes and factors relevant to decision-making. When working with a client who has experienced trauma, the client’s need for predictability is even stronger.
Promise-keeping. This, too, is something that attorneys should try to do in all cases. For people who have experienced trauma in childhood, however, a person’s failure to keep even a small promise — such as an agreement to meet at a scheduled time — can reinforce feelings of betrayal and distrust.
Transparency. Being candid with a client, like keeping promises, is always a good policy. It can be especially important when working with a client who has experienced trauma, though. Keeping even a small matter concealed from such a client can trigger a feeling of powerlessness, distrust, and possibly even memories of traumatic events that also were shrouded in secrecy.
Boundaries. It is important to establish boundaries in the attorney-client relationship and to ensure that the client understands them and the reasons for them.
Crisis response. Attorneys need to know what to do in the event a client is triggered, even inadvertently. This requires two things: (1) The ability to recognize when a client is having a crisis response; and (2) How to respond to it.
Continuing legal education
Some continuing legal education providers offer courses that address stress and trauma experienced by attorneys, either directly or vicariously (“secondary trauma.”) Lawyers Concerned for Lawyers is an example. A growing number of bar associations are also taking up that subject.
Echion CLE has developed a course that addresses attorney responsibilities when working with clients who have experienced trauma. It is a 3-hour online webinar offered on April 26, 2022 and again on May 17, 2022. Featured speakers for the Ethics portion are Jennifer Bovitz, JD, an attorney defense attorney and former senior assistant director of the Minnesota Office of Lawyer Professional Responsibility, and Katie Olson, JD, Mitchell-Hamline law school faculty and director of the school’s Trauma-Informed Advocacy program.
Following the Ethics portion, Russ Turner, MS, MA, director and lead instructor at the People Incorporated Training Institute, will provide a 2-hour skills training program for attorneys.
The People Incorporated Training Institute is a 501(c)(3) nonprofit organization that provides training to mental health providers on trauma, de-escalation, and trauma-informed practices. Russ Turner will now be bringing the same kind of training to members of the legal profession.
More information about the program, including CLE credits and registration information, may be found at the EchionCLE website.
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Thomas James is an attorney at the Law Office of Tom James in Cokato, Minnesota. The focus of his practice is trademark, copyright and appellate law. He primarily represents small businesses and nonprofit organizations.