Trauma-Informed Lawyering Empowers Lawyers and Clients

Category: Blog, Speaking and Teaching
Posted on by Alex Procope

Lawyer Alex Procope realized that at every failed mediation he has attended, at least one party exhibited a “fight, flight, or freeze” stress response – common behaviours for people with a history of trauma. He shared his observation with Maneesha Mehra, a certified specialist in family law practicing at Carson Chousky Lein LLP, and they discovered that they had similar experiences between their practice areas of intergenerational capacity disputes and family law litigation.

This discovery prompted Alex and Maneesha to organize and chair an Ontario Bar Association program: Trauma Informed Lawyering – A New Standard for Client Service and Lawyer Wellness, as part of the Elder Law and Family Law Program (OBA Program).

Trauma-Informed Lawyering OBA Program

Unintentional Re-traumatization and the Lasting Failure in Communication

On November 3, 2023, Alex opened the OBA Program with a quote from Dr. Bruce Perry that resonates with his work in guardianship and power of attorney disputes at Perez Bryan Procope LLP: “childhood experiences literally impact the biology of the brain”.

Psychologist Dr. Anna Baranowsky was riveted by the quote that Alex shared and the “recognition that failures in communication can happen immediately when we are in an ignited state”. For example, a bad interaction with someone during a mediation, leaving the person feeling hurt, confused or upset, can ignite what has happened to the person before (i.e. unrelated to the matter at hand). She noted that not everyone who experiences trauma develops post-traumatic stress disorder.

Dr. Baranowsky shared the Substance Abuse and Mental Health Services Administration’s (SAMHSA) concept of trauma:

Individual trauma results from an event, series of events, or set of circumstances that is experienced by an individual as physically or emotionally harmful or life threatening and that has lasting adverse effects on the individual’s functioning and mental, physical, social, emotional, or spiritual well-being.

Dr. Baranowsky highlighted that in addition to a client’s trauma history, a lawyer can experience unbearable pain and suffering ignited by the work we do with the client or our own history. We need to know ourselves and do our own self-care to harness the level of sensitivity and awareness of trauma to see more clearly the pain that is interfering with a client’s goal of arriving in a better place in their life through a legal process.

Trauma-Informed Lawyering

Professor Gemma Smyth of the University of Windsor Faculty of Law shared her approaches to trauma-informed lawyering. The first factor is the ability to identify trauma or to be aware of it. She discussed further characteristics by speaking about choice, collaboration, and connection (e.g., start with basic choices such as whether you would like a drink, which room you would like to sit in); enhancing safety and trustworthiness; and including a strengths-based approach and skills building.

Deep listening, reflection (e.g., journaling, mentorship, group case conferencing), and constantly connecting structures and policies to clients’ experiences (e.g., changes in their social assistance policy regarding rent and its impact) are some of the characteristics of a trauma and violence-informed advocate.

Professor Smyth remarked that the law often expects clear, chronological, consistent narratives, which is very challenging for many who experience trauma. Clients may tell you what you want to hear, which may effect the reliability of their evidence. With appropriate training, we can identity barriers to collecting information, comprehend where clients are coming from when they express feelings that seem “irrational”, and understand better why clients have strong emotional reactions and difficulty remembering.

For more information on neurobiology in the context of trauma training, and benefits of trauma-informed lawyering, see “Trauma-Informed Lawyering in the Student Legal Clinic Setting: Increasing Competence in Trauma Informed Practice” by Gemma Smyth, Dusty Johnstone and Jillian Rogin.

Client-Informed Care During and Post Intake

Sonali Sharma, family and wills and estates lawyer and founder of Athena Law, highlighted the need to focus on clients and their feedback. In addition to understanding a client’s legal needs, we need to understand their emotional and financial side as well. Having a trauma-informed practice helps us obtain appropriate instructions from clients, understand who they are, and keep ourselves from making the crucial mistake of diagnosing or projecting our assumptions.

For Sonali, the initial intake creates a roadmap for the client. She shared a five-points trauma-informed care to guide intake, which involves safety, choice, collaboration, trustworthiness, and empowerment.

Trauma-informed care continues after intake both for the client and ourselves (e.g., do you feel safe taking on this client? Will the client listen, collaborate, and trust your advice?). It should also occur on an on-going basis – be open to feedback and be on the alert for compassion fatigue by setting boundaries. Ways to implement boundaries include considering the frequency of contact with the client, establishing a client routine, and communicating the boundaries.

Continuous Check-Ins of Client Needs

Family lawyer Kavita Bhagat of Kavita V. Bhagat Family Law Solutions reiterated that a client-specific practice starts with intake and continues constantly thereafter. There is no one way to prepare, but Kavita mentioned that her intake form is very open ended.

Kavita constantly checks in for confirmation in writing from the client as to what they are seeking. She shared that she takes extra time attend to clients by avoiding a two-hour session to get. She has multiple shorter sessions to build trust and have the time to get the memories and facts out, and which also helps in determining the client’s mental capacity to instruct.

Take-aways During Closing Remarks

In Maneesha’s closing remarks, she reminded us of our need to care for our clients and ourselves, and to become more comfortable with saying no. She hoped the OBA Program encouraged attendees to spend more time learning about trauma-informed lawyering and trauma-informed living.

Learning Resources

Alex’s practice has been to empower people and not fit them into preconceived notions. He values knowing what’s important to the client and what they want to achieve. The remarks made by the speakers at the OBA Program reinforce his approach of not discrediting a client’s reaction as merely emotional as if that would be an obstacle to our work. By being a trauma-informed lawyer, we can help calm a client to obtain better instructions and be a better witness. To obtain more coherent information, we need to start the process during client intake. We then need to take the time to learn more about trauma for our clients and ourselves, and continue the journey throughout the retainer as needed.

Alex has found podcast episodes from the Bear Psychology Trauma Practice Traumatology Institute to be informative and a good start to learn more about trauma and its impact along with of course Myrna McCallum’s The Trauma-Informed Lawyer Podcast. Dr. Baranowsky listed one of her Bear Psychology Podcast episodes as part of the numerous resources she shared with the OBA Program attendees. Her list of resources include:

Professor Smyth also provided a list of resources:

Websites & Podcasts

Books  

  • Renee Linklater, Decolonizing Trauma Work: Indigenous Stories and Strategies (Fernwood Publishing, 2020).
  • Resmaa Menakem, My Grandmother’s Hands: Racialized Trauma and the Pathway to Mending our Hearts and Bodies (Las Vegas: Central Recovery Press, 2017).
  • Bessel van der Kolk, The Body Keeps the Score: Brain, Mind, and Body in the Healing of Trauma (USA: Penguin Publishing Group, 2015).

For individuals who are looking for a lawyer with a trauma-informed practice to assist with wills and estates, guardianship or power of attorney disputes, contact Perez Bryan Procope LLP at 416-320-1914 or contact@phplawyers.com.