Helgi Maki, Co-editor and Co-author with Marjorie Florestal, Myrna McCallum and J. Kim Wright of
Trauma-Informed Law: A Primer for Practicing Lawyers and a Pathway for Resilience and Healing, ABA Book Publishing, Law Practice Division, 2023
Overview
Trauma-informed legal services & legal education is an approach to law that both anticipates and aims to support the adverse situations clients, lawyers and other stakeholders can experience in the course of a legal process.
In terms of its background, trauma-informed legal services are guided by the client-centred principles of trauma-informed care in the areas of public health and psychology. Generally speaking, trauma-informed care puts safety, consent and collaboration at the centre of any service provided to the public. Including trauma-informed care principles in legal services or education implicitly recognizes the role of law in supporting not just rights but well-being and dignity for everyone involved. In other words, with trauma-informed legal services a legal professional aims to ensure that the process of dealing with the legal system is more helpful than harmful for clients and other stakeholders in a broad sense, beyond simply winning or losing a legal matter.
In the public health sphere, the key principles of trauma-informed care include promoting safety, trust, transparent communications, collaboration, strengths-perspectives (including peer support), the ability to choose (or consent), and equity, diversity and inclusion best practices to ensure that services are appropriate in light of the cultural and social context for legal work.
In 2024, trauma-informed legal principles are increasingly being adopted in the following legal contexts, although they can apply to any area of law: family law, criminal law, immigration law, human rights law, personal injury of any kind, wills & estates and employment law.
Generally speaking, trauma-informed principles are applied in the legal profession through policies or practices to support well-being or to advocate for people affected by adversity in any area of law. In the United States, the principles for a trauma-informed approach have been articulated by major institutions such as the Centers for Disease Control and Prevention. And these principles are applied through policy, legislation or other public service organizations such as the Substance Abuse and Mental Health Services Administration (“SAMHSA”). Although trauma-informed care is a relatively new approach, which has increased in adoption since the 2010s, it is widely seen as including (or best paired with) anti-discrimination principles. As of 2024, trauma-informed legal services are being provided in many areas of the world including North America, the UK, Europe, Australia, New Zealand, the Middle East and select countries in South America, Africa and Asia.
For instance, a practical example of trauma-informed legal services is a series of Florida Family Court programs that recognize the links between trauma, child development and outcomes of family law proceedings such as the Zero to Three Safe Babies Court Teams in Florida which are designed to promote family well-being and child developmental health.
The Benefits of Understanding Trauma and Resilience in Legal Practice
Trauma can be defined for the purposes of legal services, as opposed to a medical definition, as a situation that overwhelms a person’s coping skills that would otherwise typically allow them to adapt to that situation. Often, a trauma response involves the so-called “fight, flight or freeze” pattern of response which means that instead of fully engaging with a situation a person instead will seek conflict, seek escape or freeze instead of acting. In addition, a trauma response can evoke a “fawn” pattern which involves people pleasing instead of fully engaging with a situation.
The fears and stressors evoked by legal processes can impact a person, whether a client or legal professional, in some or all of the following ways:
- Evoke a neurobiological response from the limbic brain, which governs fear or pleasure and pain, rather than from the prefrontal cortex which assists with problem solving and decision making;
- Trigger a nervous system response from the sympathetic (or “fight or flight”) nervous system rather than the parasympathetic (or “rest and digest”) nervous system;
- Prompt fear-based thoughts, feelings and beliefs rather than promote psychological safety;
- Foster distrust due to prior negative interpersonal or social experiences in the course of the legal process, create obstacles to the formation of trusting lawyer-client relationships; and/or
- Interfere with creating high quality communications with or disclosure from clients in the course of legal work (such as narrative or memories), due to the focus on avoiding fearful aspects of a legal process.
A trauma response can affect relationships or groups of people and even organizations in addition to affecting people on an individual basis. In addition, trauma can be experienced directly by a person or vicariously by observing someone who has been affected by trauma (or the stories, images and other evidence of trauma).
When legal professionals are psychologically informed about the potential impact of trauma, it becomes possible to anticipate and utilize supports to compassionately address that impact. And, in turn, legal services or education that are designed with the impact of trauma in mind may improve client satisfaction with legal processes, improve lawyer well-being and reduce barriers to access to justice (and legal services). Legal processes can intersect with the personal lives of clients in numerous ways, refreshing uncomfortable memories of the past or asking clients to submit into evidence facts that they were otherwise told not to tell anyone or relegate to silence. In addition, having a court of law publicly assess the credibility of a witness can impact a client’s sense of fairness, well-being or even their mental health or reputation in their community.
Trauma-Informed Legal Services
A trauma-informed approach to legal services aims to ensure that a legal process is more helpful than harmful to a client in terms of the overall toll or strain encountered by the client. Where legal services are typically based on an inquiry into the best interests of the client, trauma-informed legal services include a focus on whether there are supportive processes that can be included into the legal process to make it easier or more beneficial for the client. (For example, by considering whether video testimony may be more appropriate than in-person testimony for a person affected by violence.)
In addition, the trauma-informed approach considers whether there are any types of potential harm to the client, legal professionals or other stakeholders that may be avoided through modifications to legal process. In the United States, SAMHSA describes trauma-informed legal services as focussing on “how” law is practiced rather than “what” is done during the practice of law. For example, …
For example, in the Canadian criminal law case called R v. Marratt, Justice Patrice Band put forward a suggested approach for cases involving graphic evidence regarding a minor (or child). In that case, Justice Band proposed that instead of submitting evidence in the usual manner without concern for who saw that evidence (and under what conditions) the counsel for the defence and prosecution could instead agree upon and jointly submit a verbal description of the graphic evidence. The aim of using such a description instead of relying upon visual graphic evidence that is typically viewed by both the judge and court staff was to reduce the exposure of legal professionals to such upsetting graphic evidence except where necessary to accurately and fairly engage in legal processes.
Trauma-Informed Legal Education
In law school or legal education, the adversarial nature of legal practice, the weighty subjects it covers (involving crime for example) and the fast-paced high-pressure manner in which education takes place can each affect law students and legal educators and their well-being. In addition, law students and legal educators may come to the legal education environment with a background involving being affected by some type of adversity (such as family conflict or discrimination) that could intersect with the type of work they’re asked to do in legal education. In addition, law students are asked to analyze tragic, discriminatory or otherwise unfair events and related rules from the past in the course of their education which regularly expose them to material involving high levels of conflict. It remains possible to approach such issues with dignity and address the impact of trauma in the legal educational environment in the classroom. For instance, in a criminal law class a law professor may choose to include materials about victim impact statements or vicarious trauma to acknowledge the impact of adversity on each person involved in a legal process. Or a class on human rights law could discuss modern views about how modern views about human rights could have affected past cases. The numerous ways in which the high-stress nature of legal culture can negatively impact students and legal educators has led to the formation of well-being initiatives by many law schools and legal professional associations.
Conclusion
Trauma-informed legal services and education holds the potential to improve client satisfaction (or reduce client stressors), support practitioner well-being or remove barriers that would otherwise prevent access to justice. And it’s an approach that can potentially improve legal processes for everyone involved in the legal system by approaching the law with compassion, empathy and shared humanity in connection with the process of law, in addition to its outcomes.
Bibliography:
Infographic: 6 guiding principles to a trauma-informed approach (2020) Centers for Disease Control and Prevention. Available at: https://www.cdc.gov/orr/infographics/6_principles_trauma_info.htm (Accessed: 12 March 2024).
R. v. Marratt, 2019 ONCJ 618 (CanLII), <https://canlii.ca/t/j2b8v>, per Justice Patrice Band.
Helgi Maki, Marjorie Florestal, Myrna McCallum and J. Kim Wright, Trauma-Informed Law: A Primer for Practicing Lawyers and a Pathway for Resilience and Healing, ABA Book Publishing, Law Practice Division, 2023, at: https://www.americanbar.org/products/inv/book/430137593/.
Helgi Maki & C.T. Sheldon,” Trauma-Informed Strategies in Public Interest Litigation: Avoiding Unintended Consequences Through Integrative Legal Perspectives” (2019) 90:2 Supreme Court Law Review 65.
Alisha Moreland-Capuia, Training for Change: Transforming Systems to be Trauma-Informed, Culturally Responsive and Neuroscientifically Focused. (New York: Springer, 2019).
Sarah Katz and Deeya Haldar, “The Pedagogy of Trauma-Informed Lawyering” (2016) 22 Clinical L. Rev. 359, Available at: http://www.law.nyu.edu/sites/default/files/upload_ documents/Katz%20-%20Halder%20Pedagogy%20of%20Trauma-Informed%20Lawyering.pdf
The Safe Babies Court Team Approach (2022) Zero to Three. Available at: https://www.zerotothree.org/our-work/itcp/the-safe-babies-court-team-approach/ c
Substance Abuse and Mental Health Services Administration, “SAMHSA’s Concept of Trauma and Guidance for a Trauma-Informed Approach” (July 2014), Substance Abuse and Mental Health Services Administration, “Available at: https://store.samhsa.gov/system/files/sma14-4884.pdf https://store.samhsa.gov/system/files/sma14-4884.pdf (Accessed: 12 March 2024).
Leave A Comment