Growing in popularity in recent years, a “trauma-informed practice” is one in which professionals seek to recognize the realities of a client’s (or witness’s) traumatic experiences and to adjust their relationship with these individuals in light of those realities. For those attorneys who interact with trauma survivors, acquiring a basic understanding of trauma’s effects may prove crucial to providing competent, effective legal representation.
Clients frequently seek legal advice following a traumatic event: an accident, natural disaster, assault, or sexual harassment, to name a few. In the wake of such events, survivors are often observed to employ a variety of social, behavioral, and physical coping mechanisms. These mechanisms are sometimes observable from the perspective of third-parties (e.g. shock, emotional outbursts, strained relationships, etc.), but at other times may be hidden from view unless the survivor is capable of disclosing it (e.g. denial, flashbacks, paranoia, memory or emotional suppression, and other physical effects such as headaches or nausea).
It is now well-established across multiple fields of medical and scientific research that traumatic events are often accompanied by significant, lasting changes in brain activity in the areas associated with memory (hippocampus), fear (amygdala), and emotional regulation (media prefrontal cortex).[1] These changes are so profound that some psychologists posit that traumatic memories are developed, stored, and recalled by the human brain through processes that differ fundamentally from that of ordinary memories, with traumatic memories being more closely linked with sensory experiences, more stable over time, and more difficult for survivors to articulate in a coherent manner.[2]
An attorney’s failure to account for the effects of trauma may lead to a host of problems, some of which may go beyond undermining the lawyer’s effectiveness at representing his or her client, to actually harming the client’s physical or mental well-being. For example, failing to account for trauma may result in inadvertently retriggering a traumatic episode and undermining the attorney-client or attorney-witness relationship; incorrectly evaluating the strength of a case or value of a claim; failing to uncover crucial details in an interview or deposition; failing to account for trauma-related effects on memory and associative recall; and failure to negotiate settlements appropriately tailored to compensate trauma survivors.
In many contexts, the legal profession demands that lawyers become “jacks of all trade,” requiring that they master complex, unfamiliar information in a short period of time. Unfortunately, the topics of trauma and mental health are overlooked by many lawyers as falling too far afield from the scope of their daily practice to be of much concern—it’s not something taught in law school after all. They do so not only at their own peril, but at the peril of their clients, witnesses, jurors, and all others they might come in contact with during the course of their careers.
The importance of lawyers gaining a basic understanding of trauma, its effects, and how the practice of law may be altered to make use of that information has grown increasingly hard to ignore. The advancement in scientific research in this area is unequivocal: trauma matters. The fact that trauma-informed lawyering remains the exception, not the norm, in most legal markets does nothing to diminish that reality. As professionals and trusted advisors, we owe it to our clients and the community to educate ourselves and each other on this important topic.
For additional information on the importance of trauma-informed lawyering, please visit the National Center on Domestic Violence, Trauma & Mental Health’s website: http://www.nationalcenterdvtraumamh.org/trainingta/trauma-informed-legal-advocacy-tila-project/.
Gregory R. Michael is an associate of Dhillon Law Group Inc.
[1] J. Douglas Bremner, M.D., Traumatic stress: effect on the brain, Dialogues Clin. Neurosci. (Dec. 2006), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3181836/.
[2] Bessel A. van der Kolk, Trauma and Memory, 52 PSYCHIATRY & CLINICAL NEUROSCIENCES 52 (1998), available at https://onlinelibrary.wiley.com/doi/full/10.1046/j.1440-1819.1998.0520s5S97.x.
