Something impressed upon me early in my law degree was the idea that law is a self-contained discipline. During my studies, I’ve seen that interpreting and applying legal concepts is a specialised skillset, quite independent from other academic fields. However, as I have watched the law in action – in courts, in police stations, in offices that range from the largest corporate conglomerates to the smallest conveyancing firms – it has become clear to me that the law does not exist in a vacuum. Rather the opposite is true: it touches upon the lives of all of us.
For your average citizen, the law is a monolithic edifice. The legal system remains a source of fear and discontent, rather than that which provides resolution and positivity. Often people are hesitant to engage with legal processes due to onerous stresses and pressures. A prevailing belief amongst lawyers was that a system based on zealous advocacy and adversarial engagement offered the most ethical options. This mindset centred on win and loss and placed no importance on the experience of the client.
Recently, a consensus has begun to emerge that emphasises the importance of clients’ experiences. A win for a client is a win in name only if they emerge traumatised from the legal process. Empathy for the client is vital to practising law that becomes therapeutic rather than competitive. This rhetoric is common sense, but a question arises: how can lawyers understand the trauma faced by their clients?
Up until now, understanding trauma by lawyers has been a question of trusting one’s gut and attempting to be sensitive. However, more concrete options are emerging which promise more consistent and positive outcomes: trauma-informed lawyering. This approach draws upon well-established research from the field of psychology of trauma and applies it to a lawyer’s work.
But what is trauma? It’s a word we hear thrown around daily, running the intensity from ‘There’s a huntsman spider in the bathroom, I’m traumatised!’ to our awareness of the post-traumatic stress disorder (PTSD) experienced by service people returning from war. Trauma is a response to an emotionally overwhelming event that renders the coping mechanisms of an individual inadequate. Common sources of trauma include witnessing or experiencing violence, or having bodily integrity or sanity threatened. It’s no coincidence that these experiences often result in people engaging with the legal system.
Trauma is subjective and highly variable, and no two people react to potentially traumatic events in the same way. However, common reactions include shock, denial, emotional turmoil, flashbacks and difficulty moving on with life. In severe instances, PTSD can arise. PTSD is a potentially destabilising condition characterised by reliving the trauma through things like memories and flashbacks, avoidance or emotional numbing about the traumatic incident, and hyperarousal (feelings of constantly being on edge). Having to relive or recount a traumatic incident can even result in a resurgence of these symptoms, in a phenomenon known as retraumatisation.
So how do trauma-informed lawyers go about minimising the impact of these symptoms? A crucial first step is making an effort to view these symptoms as adaptations to trauma, rather than pointless or shameful overreactions. For example, it has taken many in the legal profession a long time to understand why a victim of domestic violence might prioritise safety instead of justice against their abuser, and this difficulty in understanding has been strongly linked to ignorance about the impact of trauma.
Beyond this, the way forward is discretionary. Lawyers can take actions to avoid the risk of retraumatising their clients. These can range from small gestures like listening and responding with empathy when clients recount their stories, through to exploring alternatives to the client testifying at a trial – a stressful experience which can place them in front of someone who makes them fear for their safety. Involving clients in the problem-solving process can even help them address their own trauma and restore a sense of agency.
Throughout this process, there remains a distinction between lawyer and clinician. For lawyers, this movement is about integrating an understanding of trauma into the lawyering process, rather than a reformation of how lawyers do their jobs. Even so, it has produced benefits in research undertaken thus far. Trauma-informed lawyering gives practitioners more nuanced insights into legal ethics, improving their capacity for empathy and supportive interactions. For clients, the benefits abound. When clients’ needs are placed at the centre of the legal process, retraumatisation is less likely, and the justice received can restore them to a position of safety and security.
However, trauma-informed lawyering has its disadvantages. Asking lawyers to engage with clients’ emotional burdens leads them to shoulder some of that burden too. This may blur the lines around the legal practitioner’s typically neutral role in aiding their clients and may lead them to overinvest in success. More dangerous is the risk of vicarious trauma or compassion fatigue, which arises when traumatised clients convey confronting details about emotionally triggering events and feelings. Relentless exposure to these experiences can cause trauma for practitioners and has been well documented in settings such as drug rehabilitation, social work and emergency services. Adding trauma management to the existing stress faced by lawyers is perhaps unconscionable.
The greatest hurdle faced by trauma-informed lawyers is the corporate nature of much of the legal profession. It is near impossible to focus on client-practitioner relationships when the required time and effort is subdivided into value-based units. Maintaining a reasonable caseload is often unattainable in understaffed Legal Aid contexts, which sees many traumatised clients due to the link between trauma and disadvantage. While specialised legal centres can practice tenets of trauma-informed lawyering, practical implementation remains limited.
Though these challenges are significant, trauma-informed lawyering is not a fad to be abandoned: it is an interdisciplinary approach that encompasses teachings of substantial worth. When most law students enrol in their degrees, their motivation is to help others attain justice. By applying scientific knowledge to how lawyers do their jobs, the legal profession can evolve to prioritise the wellbeing of the people it serves.
We acknowledge the Ngunnawal and Ngambri people, who are the Traditional Custodians of the land on which Woroni, Woroni Radio and Woroni TV are created, edited, published, printed and distributed. We pay our respects to Elders past and present and emerging. We acknowledge that the name Woroni was taken from the Wadi Wadi Nation without permission, and we are striving to do better for future reconciliation.