Trauma and the Trial Lawyer
8.22.2024
Recently, I received a panicked call from a young man on a bridge contemplating suicide. He had been dealing with post-traumatic stress disorder (PTSD) for years and his mental health was not improving. Even now when I think about him relating his intent to end his life, my stomach drops, my scalp tingles and I feel anxious and overcome with emotion. I was able to convince him to step back from the edge of the bridge and get help, but it was not easy.
To say that law school did not prepare me for calls like that is an understatement. Unfortunately, very few aspects of legal education or training focus on trauma-informed representation.
I represent severely traumatized victims of sexual abuse. I have spoken with many colleagues who represent similarly impacted people about the need for the legal profession to address how to help these clients while protecting our own mental health.
As lawyers, when clients come to us with problems, we want to help. We must recognize, however, that when dealing with trauma-impacted clients our approach to giving that help must be different than it is with other clients.
Recognizing the Impact of Trauma
People who have survived traumatic events such as sexual abuse or assault, a catastrophic accident or receiving a life-threatening diagnosis have had their worlds upended. This loss of consent and control can cause significant issues in communication that can impact our ability to get information from our clients. These clients may mentally shut down when asked to recount their stories, and many will struggle with the unpredictability of the pace of the litigation.[1]
Giving these clients a roadmap about what to expect will help, as a sense of order and predictability can be grounding. Talk to your clients about the applicable laws and the process. Be candid about the fact that there are times they will need to talk about the traumatic events, but that you will prepare them and be by their side.
Cultivating trust, especially with vulnerable clients, is essential but not easy. When dealing with trauma-impacted clients, I have found that the key is acknowledging how hard it is to discuss the events and asking permission before each new topic is discussed. For a client who has suffered a loss of consent or control, asking, “Is it OK to talk about . . .” instead of “Tell me . . .” puts them in control and can help them understand you are a safe person to speak to.
Pay close attention to your client’s body language and let them know you see them. If clients show signs of stress, like tensing their shoulders or shaking their leg, acknowledge it. Saying, “I see your shoulders are tensed, do you need a break?” or “I see you are shaking your leg, how are you feeling right now?” will help them feel seen. It will also help a traumatized person recognize you as someone who is attentive and can be trusted.
Listen actively and acknowledge your client’s feelings. Saying, “It sounds like you’re very anxious” or “I can see why you would be angry,” will foster good communication and trust.
When asking questions about details be mindful to use nonjudgmental supportive language. Asking “why” questions can sound like victim blaming, which is detrimental. Open-ended sensitive questions will yield a better result. “Can you help me understand . . .” may work better than “why.”
Often clients who have PTSD or complex PTSD are so uncomfortable talking about or dealing with their trauma that they will generate chaos as an avoidance tactic. This is especially true for survivors of childhood sexual abuse, many of whom grew up in environments where they were constantly under stress. Chaos and constant anxiety can feel like “home.” As discussed in the self-care section of the article, maintaining healthy professional boundaries can help the attorney avoid being drawn in to the chaos that arises with clients.
Adjusting the Relationship
Part of understanding the effect of trauma is knowing you must adjust the way you work with traumatized clients. You must adjust your approach to the attorney-client relationship so you can meet your clients’ goals without re-traumatizing them.
If you represent people with PTSD or complex PTSD, it is important to understand that reviewing documents, testifying and being involved in negotiations will be triggering. Your client may experience flashbacks, panic attacks or will completely shut down and be unable to communicate. Let them know this may happen and discuss an action plan for how to address it.
Action plans I have utilized with clients range from taking frequent breaks, engaging in guided meditation or having my dog on site for cuddles and comfort. One rape victim I represented was extremely anxious about testifying. I asked if having my dog on site would help, and he said he thought it would. At every break he sat on the floor with my cockapoo, who gave him lots of love. When his parent picked him up after his testimony, my client informed them that they were getting a dog.
It is important to acknowledge the impact of the events that caused PTSD and to make referrals when appropriate. There are many therapists, but not all are certified in trauma-processing therapies such as Eye Movement Desensitization and Reprocessing (EMDR). Your clients should be advised on what qualifications may be helpful.
RAINN, the Rape, Abuse & Incest National Network, has a national sexual assault hotline and can assist in finding local providers and support groups. If a problem is more urgent, New York’s suicide prevention hotline number is 988. Having a resource list with this information available for your staff is a smart idea when serving clients with PTSD or complex PTSD.
Avoiding Vicarious Trauma
“Vicarious trauma refers to the indirect trauma that may occur to people working with traumatized clients . . . and includes nightmares, phobic thoughts, images that suddenly appear in the mind, suspicion of others’ intentions, decreased empathy, and . . . a loss of efficiency in providing therapeutic services while professional satisfaction decreases.”[2] This description was written to apply to health care professionals but is entirely applicable to attorneys and other helping professionals.
Vicarious trauma is a problem in the legal profession. Many articles have been written acknowledging this topic. The New York State Bar Association formed the Task Force on Mental Health and Trauma Informed Representation, which focused on evaluating the intersection between the mental health crisis and our civil and criminal justice systems. Despite all this good and meaningful work, lawyers are still struggling.
When you represent clients with PTSD or other significant mental health struggles, you must be aware of vicarious trauma. All too frequently vicarious trauma can lead to burnout and have lasting personal, professional and, at times, ethical impact on the attorneys.[3]
Trauma can come in many forms. It can be in response to a single event, such as a natural disaster, physical or sexual assault or a sudden accident. It can result from ongoing physical or emotional abuse or neglect, and it can be cumulative.
One of the first things every attorney representing trauma-impacted individuals must do is acknowledge and process their own experience. If you are a survivor of trauma yourself, you are uniquely qualified to help trauma-impacted individuals. You also may have heightened susceptibility to vicarious trauma. Awareness of the signs of vicarious trauma can help you know when it is time to step away and engage in self-care so you can avoid burnout.
Symptoms of vicarious trauma can include:
- Becoming overly involved emotionally with your client.
- Frustration, anxiety, irritability.
- Feeling numb to the client’s problems/empathy fatigue.
- Disturbed sleep, nightmares, racing thoughts.
- Problems managing boundaries.
- Taking on roles other than attorney.
- Loss of pleasure in daily activities.
If you find yourself experiencing these issues, it is important for you and for your ability to serve your clients well that you take care of yourself in a healthy way. Too often, attorneys engage in unhealthy coping mechanisms such as drinking alcohol or using drugs. Attorneys experience alcohol-use disorders at a higher rate than other professional populations, and studies have shown that 20-36% of attorneys could be classified as problem drinkers.[4] If you find yourself engaging in unhealthy methods of stress relief, please seek help.
Practice Self-Care
When I recommend self-care, I am not talking about the occasional massage or manicure. I am talking about actually listening to yourself, being attentive to your physical and emotional needs and giving yourself what you need to be healthy. Engaging in mindfulness can take many forms. Yoga, meditation, journaling or creating something are all ways to be mindful of what your body and mind need.
When dealing with high levels of stress it is important to allow your body to release the stress through movement and exercise. Even if you just walk around the block or jog in place for a minute, that movement will help release stress and calm your body and mind.
If you represent trauma-impacted clients, it is imperative that you set and enforce boundaries. I recommend that this begin at the first meeting where you explain your role. The client should have a clear understanding of what routine communications they can expect, what information they need to share with you and how frequently they can expect to speak to you.
Your client must be informed that you represent multiple clients and that they all deserve your attention. If a client calls excessively or wants to engage you in discussion of unrelated issues, you should kindly and compassionately remind them of the limits of what you are working on for them and, where appropriate, make referrals. A client who wants you to act as their unofficial therapist is violating boundaries and should kindly be told that a qualified therapist who deals with processing trauma would be better equipped to help them.
Self-care also means seeking support when you need it. This might mean working with a therapist, but it can also mean discussing your concerns with trusted friends or family. Whatever form that support takes, the important thing is to recognize when you need it and to prioritize giving yourself what you need.
Conclusion
Cultivating an awareness of how trauma impacts our clients is essential for attorneys. A trauma-informed approach to the attorney-client relationship can benefit the client, the attorney and your practice.
The Lawyer Assistance Program is here to assist you if you’re struggling with vicarious trauma or any other mental health condition. Call the LAP Hotline 24/7 for immediate support and to be connected to a counselor for four no-cost sessions: 877-772-8835. www.nysba.org/lap
Andrea E. Bonina is a partner in the law firm of Bonina & Bonina and represents sex abuse survivors and seriously injured accident and malpractice victims. This article appears in a forthcoming issue of Trial Lawyers Section Digest, the publication of the Trial Lawyers Section. For more information, please visit NYSBA.ORG/TRIAL.
Endnotes
[1] The Body Keeps the Score: Brain, Mind, and Body in the Healing of Trauma by Bessel A. van der Kolk, MD is an excellent resource for understanding the lasting impact of trauma. What Happened to You?: Conversations on Trauma, Resilience, and Healing by Oprah Winfrey and Dr. Bruce D. Perry is another excellent book that examines trauma and how one can heal from it.
[2]. Kalliope Kounenou et al., The Interplay Among Empathy, Vicarious Trauma, and Burnout in Greek Mental Health Practitioners, Int’l J. Environ. Res. Public Health, Feb. 2023, 20(4): 3503.
[3]. Burnout: The Secret to Unlocking the Stress Cycle, by Emily Nagoski and Amelia Nagoski, is an excellent resource for recognizing and recovering from unabated stress and burnout.
[4]. Patrick Krill, Ryan Johnson, and Linda Albert, The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, J. of Addict. Med., Jan./Feb. 2016, 10(1): 46-52.
