Just as lawyers specialize in specific areas of law, those providing legal representation to survivors of trauma should be trained on how to recognize markers of trauma and how to engage with clients in a safe, empowering, and collaborative manner.
Photo by Maliha Khalid @905mvs
“One of the most harmful things that can happen to someone who has been traumatized are experiences of disempowerment. And this is why trauma-informed practices should be an essential component of teaching the law (or teaching anything) and practicing the law.”
Trauma Abounds: A Case for Trauma-Informed Lawyering
UCLA Women’s Law Journal 26:1 (2019)
While lawyers are not expected nor trained to be therapists, understanding trauma and being conscious of its impacts should be part of our toolkit.
This blog post encourages the following questions: What harms exist within the legal system for traumatized clients? Who is most vulnerable? How can the legal system better respond? Most importantly, can we imagine a process that actively mitigates (re)traumatization?
Simply put, trauma is a state of being where a person’s “normal” coping skills are disrupted. Broken down into three distinct components, trauma can encompass the event, the experience, and the effect. Events that invoke fear, humiliation, insecurity, instability, physical or psychological harm, grief, or danger (a non-exhaustive list) can cause trauma. Trauma does not always result in a PTSD diagnosis; a person can have experienced trauma without being diagnosed with PTSD.
Trauma touches both body and mind: a physical trauma (such as a burn) will have psychological effects, and psychological trauma (such as intimate partner abuse) will have physical manifestations. Trauma can affect a person’s emotional regulation and therefore, their behaviour, reflexes, and responses. It can also impact their sense of self. The effects of trauma may not appear immediately but may be delayed, and the duration and intensity will differ.
Whether or not someone experiences trauma depends on countless factors and differs from person to person. That said, studies have shown that Black, Indigenous and racialized people are likely to report high levels, attributable to a range of violent experiences – from the continued effects of past colonization policies to the intergenerational transmission of trauma, to the realities of systemic racism. For example, in Canada, Black and Indigenous people are more likely to face violence at the hands of the police and the carceral apparatus. Research demonstrates that not only do these individual threats of harm impact mental health but the news of police killings of another can be detrimental to mental health by way of vicarious trauma.
With this information, lawyers must, at the very least, incorporate racism as a trauma into their representation.
Poverty also heightens the risk of trauma, stemming from the myriad of stressors economically marginalized individuals experience daily (financial burdens, food insecurity, inadequate health care or housing, a non-exhaustive list). Further, limited access to resources that may facilitate the navigating of traumatic experiences creates a vicious cycle for individuals and families.
Trauma-informed lawyering is a critical strategy to humanize an otherwise dehumanizing process. Just as lawyers are trained in specific areas of law, those providing legal representation to survivors of trauma should receive training on how to recognize markers of trauma, and how to engage with clients in a safe, empowering, and collaborative manner.
Photo by Maliha Khalid @905mvs
At the foundation of a successful lawyer-client relationship is trust. Trusting someone with to represent your best (and often most personal) interests is no easy undertaking. For those who have experienced trauma, creating this relationship can be even more difficult. Empathy, patience, consistency, transparency, and reliability are key to establishing a trusting relationship with a client who has experienced trauma. At the crux of these values is a recognition that the person who is attempting to redress their rights is also struggling to cope.
A trauma-informed practice sees the practitioner adjust their practice approach to be responsive to a client’s traumatic experiences. Rather than judging a client who seems incapable of answering a question directly or who is speaking in circles, a trauma-informed lawyer will use empathy to assist the client to refocus the conversation. Rather than becoming frustrated with a client who appears perpetually forgetful, the trained lawyer will understand trauma’s impact on recall, avoid unnecessary questions, and provide breaks.
One aspect of a person’s story is necessarily impacted by another. An interdisciplinary approach to legal representation– where a client is given both a file number and an accessible support system – is one way to mitigate (re)traumatization.
There are ample ways that social service providers and lawyers can mutually support each other with more complex relational, emotional, and mental health problems faced by their clients. Consider simple periodic check-ins with a client’s treating health care providers and support network. The meeting need not be lengthy but could provide important information on how litigation is impacting the client and how the lawyer could better adapt their practice. The focus in this process is not for the purpose of documenting injury, but rather to ensure that lines of communication remain open and that the health team and support network is aware of what litigation will entail.
The legal process is by design stressful and isolating. Without the support of community and family, the demands of litigation can tear at ones mental and physical health. The lawyer may be separate from the client’s community support network, but it is helpful for them to be aware of its existence. This could take the form, at the behest of the client, of having support persons present at client meetings, or having the lawyer be present at a community event. Having access to community support while navigating the legal process can be incredibly powerful.
Protecting people from re-traumatization requires a dedication to trauma-informed practice.
Photo by Maliha Khalid @905mvs
It starts with education. Other than the multitude of ways having a trauma-informed practice will support clients (diffusing effects of trauma, helping people feel safe, encouraging pursuit of claims without fear, a non-exhaustive list), a lawyer who is trauma-informed is simply a more competent lawyer. Given the urgency of trauma-informed care, we must investigate interdisciplinary approaches that involve greater collaboration between service providers. Finally, the importance of community cannot be understated. While a professional support system is necessary, a community wherein clients feel a sense of belonging is critical to their well-being.
Talia Joundi is a refugee & immigration lawyer and researcher based in Toronto who has advocated for trauma-informed hearings.