How Trauma Informed Lawyering Will Help Us Get Through This Pandemic
Written By: Nicholas Moore
We are all experiencing trauma. A global pandemic spares nobody, and the suffering it causes takes many forms. Some will experience the death of a close family member, others may lose generations-old family businesses, and many others will experience the constant roller coaster of extreme-heightened-anxiety because it is impossible to foresee a future.
Trauma-informed lawyering is a relatively recent concept, one that has only gained prominence in the last 15 years or so. It is most frequently taught as relevant to areas of law such as immigration/asylum, domestic violence, sexual assault, and human trafficking, but the applications are so much more broad than these areas of the law. All of society can benefit from learning about trauma and skills for working with trauma victims, especially now.
Why is understanding trauma important?
Trauma occurs when a person experiences an extremely negative event such as being the victim of a violent crime, witnessing a fatal accident, or experiencing a natural disaster. In a recent Free to Thrive training, Dr. Brittany Greenbaum, Ph.D. explained that trauma has a distinct effect on our ability to function in life. (LINK). Understanding how trauma affects our brains gives us an opportunity to adjust our interactions accordingly to build better relationships. For example, trauma-bonding, briefly explained, is similar to Stockholm Syndrome, where a person forms an intense psychological attachment to a person who has a shared experience in that trauma - even if that other person is a victim’s exploiter. Understanding complex concepts such as trauma-bonding helps explain why a trafficking victim might return to their exploiter. At its essence, being trauma informed is about being empathetic.
What is trauma informed lawyering?
Trauma informed lawyering means adjusting legal strategies to account for a client’s trauma. For human trafficking survivors, simply participating in the legal process can be extremely traumatizing. Every trial lawyer will tell you that unless you are a professional witness, you will be uncomfortable (to say the least) being cross-examined. Survivors of domestic violence, sexual assault, and human trafficking, will share that their experiences being cross-examined sometimes involved some level of victim blaming and shaming. If more attorneys were trained to understand the dynamics of these situations, lawyers would realize that victim blaming is not an effective strategy and extremely retraumatizing to victims. Human trafficking survivors who were were frequently criminalized by an over-zealous justice system may find simply being inside a court room is a traumatic experience. Many of our clients have expressed to us that they had never had a positive experience in a courtroom before working with us. Trauma informed lawyering also means recognizing that sometimes legal process could be more detrimental to a person than helpful, despite all attempts to minimize the negative parts. This reality requires letting your client know what the legal process will entail so they can decide if they really want to proceed.
Easy steps lawyers can take to be more trauma informed:
Cultivate a safe environment - Is your conference room a fishbowl that everyone can see into? That will probably not feel like a safe space for a survivor of a violent crime to tell you their story. Let your client choose where they sit - trauma survivors sometimes feel safer if they sit facing the door.
Building Trust - Think about how much time you need to spend around a person to tell them something embarrassing or shameful. Just because you’re a lawyer who has spent a couple of hours with a person does not mean you have cultivated their trust. Ask any doctor how many of their patients lie to them (the person who is supposed to help them stay alive); according to one study, the answer is usually more than half. You can build trust by listening, genuinely caring about your client, keeping them updated on the status of their case, and following through with anything you commit to.
Understand Memory Lapses - Trauma affects your memory so your clients may have large gaps in their memory or make inconsistent statements. Being trauma informed means helping your client fill gaps in their memory using documentation or information gathered from others. It also means acknowledging when your client simply can’t remember or has made conflicting statements and using expert witness testimony to help the court understand that these lapses in memory are not an indicator your client is not being truthful, but rather evidence that your client experienced a traumatic event.
Transparency - The legal system and its processes are byzantine and confusing. Being trauma-informed means making the effort to demystify an industry that still uses latin, an otherwise dead language. Being trauma informed means having the patience to explain procedures more than once, and helping a client manage their frustrations with the painfully slow pace of legal work.
Road-mapping. The legal process is sometimes confusing to lawyers - for clients it might as well be in a foreign language. Explaining the legal process to clients afflicted by trauma can be particularly challenging. You should be prepared to explain things multiple times and understand that a client may still not fully comprehend what is happening. This is normal. Explaining the legal process both verbally and visually may help the client better understand the process. Attorneys who take the time to create visual explanations for clients will find client satisfaction increase across the board. Visuals can be a helpful reference to clients that might eliminate the need to explain something multiple times.
Empower the client. Trauma makes you feel powerless. This pandemic makes us all feel powerless. It is becoming increasingly difficult to even imagine what the future looks like. When we are repeatedly told that all we can do is stay home, we feel powerless. Trauma informed lawyering means understanding that your job is to empower the client - not convince the client that they need to take a specific course of action.
Why Trauma-Informed Practices Should Be Taught To Everyone
There is an old adage, frequently attributed to either Plato or Philo of Alexandria, that goes, “Be kind to everyone you meet, for everyone is fighting a great battle.” This quote perfectly encapsulates the essence of being trauma informed. If people practice trauma informed principles in their every-day interactions, they will find their own mental health will vastly improve along with improved interpersonal relationships, and a renewed sense of optimism.
Some ways in which non-lawyers can practice being trauma informed:
Ask questions - Most disagreements happen not simply because of a difference of opinion, but a difference in the information forming the basis of that opinion. Before taking a position, take the time to ask questions. If you keep your focus on asking questions rather than challenging a fact or opinion, you will avoid confrontation and appear more thoughtful than if you start an interaction by stating an opinion.
Avoid criticism - Make a point to not levy criticism when interacting with someone. People will naturally gravitate toward you, seek out your opinion, and trust your opinion when you communicate without criticism.
Be transparent - In any disaster situation there are profiteers - people who seek to profit on the opportunity created by the chaos. Be somebody who does not obfuscate or equivocate. Be direct and honest.
Empower others - If your focus is on empowering other people, then regardless of any end results you are doing something that is truly remarkable, something that should be celebrated. You’re being a good person.
Trauma Informed Lawyering in service to Human Trafficking Survivors:
A common legal argument made by attorneys is that if a witness’s story is disjointed, non-linear, or describes illogical behavior, that the witness lacks credibility. These descriptors frequently apply to victims of trauma, and compounds the difficulties they face when trying to access the legal system. Being labeled “not credible,” by a judge or a jury can not only re-traumatize a victim, but can sometimes be more traumatic than the underlying event itself. As an advocate, it is your responsibility to educate the court and jury about trauma and human trafficking to counteract any claims against your clients’ credibility. The best way to do this is through expert witness testimony.
Some survivors of human trafficking may have voluntarily entered the field of sex work, only to be later exploited. Some survivors were coerced or tricked into sex work while they were still children. Often, their exploitation will coincide with behaviors or actions that give the perception that they voluntarily participated in their trafficking. Trauma informed lawyering in this space means that attorneys must use their presence in the courtroom to educate judges and jurors about trauma, its impact on decision-making, and the intensity of trauma-bonding.
At its essence, being a lawyer is being a storyteller, and being trauma informed will make you a better storyteller. Human trafficking is one of the oldest stories in society, but we are only now just beginning to describe it in a trauma-informed way. “Prostitution,” is a loaded word littered with language and imagery that gives the impression it is a choice: Think of the film, “Pretty Woman,” or that exploited women are frequently described as, “working girls,” or that prostitution, and the act of exploitation is frequently described as, “the oldest profession in civilization.” A trauma informed approach means re-telling this old story in a way that brings to light the toxicity of the exploitation suffered by this survivor, but in a way that does not leave that person immutable; they are more than the product of their exploitation.
Being trauma informed is understanding how to tell this story in a way that preserves a person’s dignity. Being trauma informed is understanding that we are telling the stories of a person like any of us: a person with hopes, dreams, and faith that justice is within reach.
Nicholas Moore is a Senior Staff Attorney at Free to Thrive and manages our Family Justice Program.