13 Trauma Informed Lawyering

As discussed throughout, Indigenous Peoples in Canada have endured immense atrocities committed against them and many are still living with the impact and the resulting trauma of that today. Examples of that include firsthand experiences as a Residential School or day school survivor, a survivor of the Sixties Scoop or as the descendent or family member of a survivor. It is important that as lawyers we not only understand what happened to Indigenous Peoples, but also, how those experiences shape the people that may come before you in your practice of law. As law is a client-focused profession, we see clients in every area of law. From Criminal to Family law, to Estates and Corporate law, there will always be a person that is seeking your services. There is no one area of law that cannot benefit from a trauma-informed practice.

What is Trauma?

Before we can understand how to best conduct a trauma-informed practice, we must understand what trauma is.

Trauma is a lasting impact that may range from a simple nagging emotion to a lifetime debilitating condition. According to a University of Connecticut (UCon) survey on racial trauma, “It is increasingly understood that conceptualizing PTSD as the result of a single traumatic event provides an incomplete understanding of the disorder”^[1]. The authors of the UCon survey cite a 1999 study published in the American Journal of Psychiatry which found that “the development of a diagnosable traumatic reaction resulting from exposure to any traumatic event increased the risk that future trauma would result in PTSD”. ^[2] The authors go on to acknowledge more recent studies that confirm the 1999 study and recognize that:

the collective effects of environmental stress (e.g., prejudicial attitudes, racial discrimination) over time can produce cumulative trauma (M. J. Scott & Stradling, 1994), as well as disturbances in self-regulatory processes, such as difficulties with aggressive or angry behaviors, social avoidance, dissociative symptoms, and anxiety (Cloitre et al., 2009). It is important to understand that many types of racism are common stressors faced by people of color and have cumulative effects that can contribute to traumatization.^[3]

This idea of cumulative cultural trauma provides us with an understanding of how we might begin to understand the ongoing compounding that may affect Indigenous Peoples through their experiences of contemporary racism and the effects of intergenerational trauma. According to Kareem Ibraham, “Trauma can be acute (a single traumatic event limited in time), chronic (multiple traumatic events) or complex (history of severe and long-term trauma)”.^[4]

Now that we have established what trauma is, we can begin to look at how it affects individuals, how to become trauma-informed and build a practice that is a safe environment for all clients.

Effects of Trauma

Understanding what trauma is and understanding how it affects people are not synonymous. In order to understanding the effects of trauma, an assessment must be conducted on a case by case basis. Assuming all Indigenous Peoples are victims of trauma, or making assumptions about their trauma, can be incredibly harmful. Having a trauma-informed practice means that you take the time to establish and assess a client’s specific needs and comfort levels. Trauma can manifest in many forms and can affect everyone differently. Each individual can have aggravating or mitigating factors to their lives that shape their response to trauma. As Sarah Katz and Deeya Haldar acknowledge in their paper, The Pedagogy Of Trauma-Informed Lawyering,

[Trauma is] “affected by a wide range of “personality styles, ego strengths, diatheses for mental and physical illnesses, social supports, intercurrent stressors, and cultural backgrounds.” Thus, the reactions to trauma are psychobiologic and are influenced by complex individual and social contexts, all of which determine the ways in which each individual processes trauma. As a result there are no universal indicators of, or responses to, traumatic events. ^[5]

Traumatic experiences can also have a much broader impact on individuals than a psychological reaction, many studies have shown that trauma (particularly in childhood) can have lasting physical health effects..^[6] Dr. Michael Yellowbird spoke of how trauma can affect the brain in a 2021 presentation to first-year law students at Thompson Rivers University. Dr. Yellowbird remarked how trauma and stress can cause genetic changes in the brain, such as a breakdown of dendritic spines in the prefrontal cortex which is a part of the brain associated with memory and learning. Dr. Yellowbird also discussed with students his research on telomeres. A telomere is a section of DNA that is found at the end of a chromosome. It assists with the protection of our chromosomes and cellular replication. It is effectively a “bumper guard” that slowly wears down as your cells divide and replicate.^[7] He remarked that telomere length has been associated with aging, cancer and eventually, death. As we age and our cells divide, our telomeres gradually shorten until our cells die. Dr Yellowbird spoke of research that had been conducted that explained the correlation between stress and shortened telomeres, including how the genetic code of shortened telomeres can be passed on to children.^[8] Put simply, intergenerational trauma can be reflected in our genes.

Adverse Childhood Experiences

Between 1995 and 1997, the CDC-Kaiser Adverse Childhood Experiences Study (the Kaiser study) assessed over 17,000 adults and the correlations between their current health and past adverse childhood experiences. The study found that “Adverse Childhood Experiences” (ACEs) are categorized into three groups: abuse, neglect, and household challenges.” ^[9] Today, the questions used in the study are known as the ACE test. The ACE test has been incorporated into trauma-informed practices as a way to be specific when assessing whether a client may have been affected by an ACE.^[10] The ACE test is comprised of 10 questions that assess experiences that may have caused trauma. The questions focus on 3 categories: Abuse (emotional, physical and sexual), Household Challenges (such as domestic abuse, substance abuse, unmet mental health needs or divorce/separation), and Neglect (physical and emotional). The language to be used can be found in Felitti et al’s 1998 article.^[11]

By using specific language such as Did a parent or adult swear at you, put you down or humiliate you?  Dr. Lori Vitale Cox argues, we can avoid inaccurate responses and ensure that we are able to have a more complete understanding of their past. She argues that if you ask a person who has had an ACE if they have been physically, sexually or emotionally abused, they may not give you an accurate response.  This isn’t necessarily because they want to hide the information from you, but rather, that they may not recognize that what happened to them was abuse. She states that many victims of early childhood trauma were taught that if something happened to them, it wasn’t abuse because it was a deserved punishment or other similar rationalization used by their abusers. ^[12]

How to Establish a Trauma-Informed Practice

In her presentation to upper-year law students in October 2020^[13], lawyer and advocate Myrna McCallum introduced the idea of what a trauma-informed practice is for the first time to many students and taught how a trauma-informed practice can look. She asked of the students, four main questions.

1. What does trauma-informed mean?
2. How do I engage in a trauma-informed way?
3. Who does cultural humility benefit?
4. And lastly, why do we need a resiliency strategy?

For many students, this was the first time having these questions put to them and given the chance to truly reflect on them. In order to ensure you are establishing a trauma-informed practice, you must not only understand what trauma is and how it affects individuals, but tailor your actions and interview techniques into a client-focused process. Dr. Cox argues that your objectives in the creation of a trauma-informed practice should be to reduce re-traumatization for clients, improve legal advocacy and improve legal outcomes for clients^[14]. Ensuring that your practice is trauma-informed isn’t just about trying to create a well-rounded practice, it is also a standard of competency. As lawyers it is our job to perform to a standard of professional competency. ^[15] This includes being effective counsel and a major component of providing competent and effective service is providing appropriate service to our clients. This includes understanding the history of Indigenous Peoples and the traumas they have faced, but also how to genuinely recognize and respond to clients who may not have yet faced their own trauma.

Both Ms. McCallum and Dr. Cox’s work show very similar recommendations on how to be successful in establishing a trauma-informed practice. Ms, McCallum, in her presentation, discusses the difference between a conventional transactional approach and a relational approach. She defines a transactional approach as one that only recognizes the issue that is brought forward. This more conventional approach is often ridged, impatient and lacks empathy. It sees the job as a transaction with a client rather than a client with a unique set of needs. She defines the relational approach as one that recognizes the entire person and is empathetic, intuitive and promotes active listening.^[16] Dr. Cox recommend that in order to be successful at this, one should follow what she calls, the trauma-informed practice 4 R’s. Realize, Recognize, Respond and (don’t) re-traumatize.

1. Realize: Understand that trauma exists in many forms and presents itself in a multitude of ways.
2. Recognize the effects of trauma in an individual and think about how it might affect communication.
3. Respond effectively to individual needs by creating a practice system so that…
4. Re-traumatization does not occur.^[17]

Both Dr. Cox and Ms. McCallum’s presentations focus on the importance of these guiding principles and both argue that these are essential to enacting a trauma-informed practice.

Self-Care for Lawyers

It is important to recognize that while we must ensure a safe space for our clients to open up and build trust, lawyers are not therapists. Lawyers are not meant to be a singular checkpoint at what may be a dark spot in a person’s life. Ensure that you understand what resources are available for yourself and your client. If you do not take care of your own mental health, you cannot be an effective advocate for your client’s needs. Myrna McCallum states that “Safeguarding mental health is an organizational, collective and individual responsibility.”^[19]

Working with clients who may have had an ACE or other traumatic event in their lives can impact you as a lawyer directly, even when you are removed from the traumatic event. This is known as Vicarious Trauma. The specifics of what comprises vicarious trauma are not absolute. According to Nazanin Moghadami in her article Vicarious Trauma and You, “vicarious trauma, burnout and being emotionally triggered are not the same.”^[20] She goes on to state that burnout or compassion fatigue is when someone in a helping profession takes on too much and experiences negative emotions as a result.^[21]

Katz and Halder however define vicarious trauma to include compassion fatigue. They define vicarious trauma as such: “vicarious trauma, also sometimes called “compassion fatigue” or “secondary trauma” is a term for the effect that working with survivors of trauma may have on counsellors, therapists, doctors, attorneys, and others who directly help them.”^[22] For the purposes of this chapter, we choose to utilize Mogadami’s definition in which we see compassion fatigue as separate and distinct from vicarious or secondary trauma. It is important to distinguish vicarious or secondary trauma from other experiences such as burnout, compassion fatigue or even triggering events, all of which may have a very different effect on a lawyer and as such, requires a different management solution. Mogadami also explains how assisting clients with trauma who are navigating the legal system might find themselves at odds with what they feel may be moral responsibilities, ethical responsibilities and actual capabilities. She states:

Working with distressing, disturbing and traumatizing material and topics can change lawyers; the way they think, feel, treat and relate to their clients, view their role in their work and/or arrange their own value and belief systems. Some of these changes are positive and desirable, and some are undesirable and unhelpful. Lawyers are also in the position where they represent the clients in the legal system, with sometimes firm limitations put in place by cultural and societal norms. For example, while there might be laws in place to address sexual abuse of a minor, stereotypes, prejudice and discrimination can vastly impact how the laws are applied to a case. This puts the lawyers in a unique and sensitive position where they might carry the weight of the imperfections of the legal system while wanting to protect their clients.^[23]

This carrying of such a weight is an example of can lead to what was referred to above as compassion fatigue. Some practice strategies that Moghadami recommends are:

• Appointment management;
• Clarity and transparency with the client;
• Offering a break during moments on intensity for yourself or the client;
• Self-awareness and mindfulness. And,
• Setting limits and expectations.^[24]

It is our hope that by learning about how to recognize what trauma is, what its effects are, how it might impact individuals and yourself, and how best to protect yourself from vicarious trauma, burnout or compassion fatigue will give you the tools to begin practicing in a client-focused and trauma-informed way when you begin your practices. It will be easier as law students to integrate this as a part of your practice while still in the stage of building and shaping your practice; and, in time, ensuring that the inclusion of a trauma informed approach will become as vital or second nature to you as your other daily tasks.