Lawyers are generally not trained in how to represent clients who have suffered trauma, but the effects of trauma have major implications for the representation. To competently represent such clients, lawyers should understand the science of trauma, including the unusual way those impacted store memories of the traumatic event, why clients may have difficulty recalling relevant details, and how challenging it can be for them to relive the event through litigation. Understanding these challenges, attorneys should tailor their representation approach accordingly.
Since the onset of the COVID-19 pandemic, society has paid increased attention to mental health concerns, including trauma. Mental health issues worsened worldwide as individuals suffered a range of harmful situations, from life-threatening illness to loss of livelihood (i.e., income, a home, etc.) to being forced to endure abusive or isolated environments. Pandemic-related hardships disproportionately fell on women, youth, and low-wage workers of color who are overrepresented in "essential" jobs. (World Health Organization, Mental Health and COVID-19: Early evidence of the pandemic's impact (March 2, 2022); Health Affairs, "Inequalities at Work and The Toll of COVID-19," (June 4, 2021).
Although COVID-19 has brought these issues to the forefront, representing clients with trauma - and our legal duty to do so competently - is not new. Trauma has been central to a range of legal practice areas (e.g., employment, family, immigration, criminal, civil rights, and personal injury law), and may be implicated in any other practice area if the client has suffered trauma. "[W]hen representing clients who have survived trauma in the past, the duty of competent representation requires not only legal knowledge and preparation," but also an understanding of trauma-informed lawyering. (NYU, Clinical Law Review Vol. 22:359, pg. 378, March 8, 2016 (citing Model Rules of Professional Conduct § 1.1); see also California Rules of Professional Responsibility § 1.1 (California lawyers have a duty of competent representation).)
The Neurobiology of Trauma and Litigation-Related Challenges
Trauma is defined as "any disturbing experience that results in significant fear, helplessness, dissociation, confusion, or other disruptive feelings intense enough to have a long-lasting effect on a person's attitudes, behaviors, and other aspects of functioning." (American Psychological Dictionary of Psychology.) Trauma has concrete and detrimental effects on a client's mind and body, which can result in a multitude of challenges throughout the litigation process.
The neurobiology of trauma is an established science, despite often being cast as junk science. (See End Violence Against Women International, Statement on Trauma-Informed Responses to Sexual Assault, (Sept. 2019), at 6.) During a traumatic event, the brain switches from processing in a logical, thinking state (i.e., using the prefrontal cortex), to relying instead on "automatic responses such as habits and reflexes" (i.e., activating the amygdala and other subcortical structures). (See id. at 7; Jim Hopper, PhD, "Sexual Assault and Neuroscience: Alarmist Claims vs. Facts," and Rebecca Ruiz, "Why Don't Cops Believe Rape Victims.")
This has a profound impact on a trauma survivor's memory and physiology, which is routinely used to question their credibility. For example, trauma survivors often remember "central" details but not "peripheral" ones, such as where they were before or after the event, which might seem suspicious to the untrained person. (See Hopper, supra; Ruiz supra.) They may also store "sensory" memories of the event rather than "sequential" memories, which makes it challenging to elicit the chronological narrative that is often viewed as a key component of credibility. (See Ruiz supra.) In terms of physiology, trauma survivors exhibit a range of responses commonly known as "flight or fight," and the less commonly known "freeze" response (or "tonic immobility"). (See Hopper, supra; National Institute for the Clinical Application of Behavioral Medicine, "How to Overcome the Freeze Response.") These automatic responses are seemingly counterintuitive. For example, freezing may be interpreted as failing to resist an unwanted sexual advance, but is in fact normal. Responses can be triggered both during the traumatic event or by memories of the event.
Credibility issues are not the only challenges. A client's repeated recounting of traumatic events can lead to re-traumatization, which is when a person feels like the traumatic event of the past is happening in the present moment. This can trigger, among other things, panic attacks, anxiety, dissociation, or depression, which both harms the client and exacerbates the credibility issues mentioned above. Further, being confronted with the disbelief of others - i.e., opposing counsel, medical professionals, and/or jurors - can cause further harm. In addition, to manage the challenges identified here, an attorney will likely have to devote more time to the case than might otherwise be necessary.
Despite the challenges, working with trauma survivors is rewarding (and often inevitable). The following practical tips will help not only to strengthen the attorney-client relationship, but will also enable you to provide the highest level of advocacy to your clients.
Practical Tips to Incorporate into Your Legal Practice
1. Empower the Client
At the core of any legal practice is a working professional relationship between the attorney and the client. In any attorney-client relationship, providing the client with enough information to make an informed decision is essential. This is especially important when working with a client who has experienced trauma. Because the litigation process can be re-traumatizing, explain clearly at the outset what the process involves, including how long it will take and how many times and under what circumstances the client will be required to retell the traumatic events. Identify the client's goals, and help them assess whether litigation will meet those goals. For some clients, litigation can be a powerful tool to regain a sense of power and achieve "justice." For others, avoiding litigation altogether best fulfills the client's goals. The key here is empowering the client to make an informed decision at each point in the litigation process.
2. Be Patient
One of the most challenging aspects of working with a client who has experienced trauma is information gathering. First, because it may be difficult to remember the sequence of events and because the client may experience trauma responses while recounting the events (such as becoming emotionally flooded or dissociated), client meetings tend to require more time, and it is important that the client does not feel rushed. Second, because of the sensitive nature of some of the necessary information, it is important to validate and express empathy throughout. For example, you might say: "I understand that this is difficult to discuss; thank you for sharing your story with me. Please let me know at any point if you need to take a break." Third, when asking sensitive questions (such as why they did not initially report the incident), explain why the information is needed and validate their experience (e.g. "many victims of this type of trauma do not report it"). Finally, even with their best efforts, the client may struggle to remember important details. You can help jog a client's memory by asking sensory-based questions ("what did you hear/see/smell/taste/touch?") as opposed to sequential questions ("what happened next?"). In addition, using other markers, such as holidays (e.g., "Was it before or after Thanksgiving?") can help the client identify vague time periods.
3. Prepare the Client for Testimony
During the litigation process, a client will likely have to present testimony to opposing counsel, a mediator, a judge, and/or a jury. Because trauma can cause a person to present thoughts and memories in a nonlinear manner, exhibit extreme emotional responses, and experience severe anxiety, it is important to rehearse thoroughly with the client, which will support them in providing a linear story and mitigate their risk of becoming emotionally overwhelmed. It is also important to explain every detail about the setting for the testimony, however mundane (e.g., who will be present, where everyone will be seated, who will speak and in what order, etc.), so the client knows what to expect.
4. Educate the Court and Jury
Given that a client's credibility will almost certainly be questioned, it is important to retain an expert who can testify to the impacts of trauma and explain any perceived counterintuitive behaviors. (See Jim Hopper, Ph.D., Sexual Assault and the Brain: Key Information for Investigators, Attorneys, Judges, and Others. ("'[F]ailure' to recall does not indicate lack of credibility"; "It's important not to assess credibility based on emotional state.").) Jurors have narrow and unrealistic expectations of "victims," and need to be educated when the client does not meet those expectations so that normal responses to trauma are viewed as not only not indicative of lying but as indicative of the truth.
5. Follow the Client's Lead
The client is best positioned to know what level of engagement is appropriate for them throughout the litigation process. For some clients, the process may feel traumatic and trigger the trauma responses discussed here. In those situations it may be best to involve the client only as needed. Other clients may wish to play a more active role, which helps them feel empowered. When that is the case, solicit ideas from your client, especially when it comes to injunctive relief. In our experience, most trauma survivors who pursue litigation do so because they want to protect others from experiencing the same harm they suffered, and they often have novel and effective ideas about forward-looking remedies. Finally, it is always possible that a client will change their mind and decide that litigation is not the best route - perhaps because it no longer serves their goals or is no longer safe or healthy for them. You should be prepared for the client to terminate the litigation and respect the client's decision.
In closing, trauma-informed lawyering is a complex and broadly important topic that is relevant across practice areas. In our view, fulfilling the duty of competency when representing a client who has suffered trauma requires California lawyers to be educated on what causes trauma, how trauma impacts clients' brains and physiology, and how to manage the challenges that trauma symptoms present in the client's legal matter.
Further suggested reading:
The Body Keeps the Score, by Bessel van der Kolk
Trauma Stewardship: An Everyday Guide to Caring for Self while Caring for Others, by Connie Burk and Laura van Dernoot Lipsky
My Grandmother's Hands: Racialized Trauma and the Pathway to Mending our Hearts and Bodies, by Resmaa Menakem