Why Does The Legal System Retraumatize Victims? Trauma-Informed Care is Needed

Higgerty LawBlog, Personal Injury

This article was originally posted on Canadian Lawyer Mag on 14 Aug 2020

Lawyers need to be cognizant that clients can come from many traumatizing circumstances, writes Jill Taylor

These women were traumatized on the job for, in some cases, decades. Some still work for their abusers. They have suffered bullying, mockery, sexual harassment, sex-based putdowns, intimidation, sexual advances and so much more. The deep emotional and physical scars felt by many is evident in our first conversations.

As we class counsel prepared for this case last year, I began to wonder: How could we, in good conscience, apply our usual information-gathering processes to build their claims for compensation without taking their trauma into account? Legal processes are typically lawyer-directed, impersonal and unsupportive, the exact opposite of what might be required here. Many studies have showed “sexual assault complainants have too often experienced the criminal justice system as a place that retraumatizes them and even harms them,” according to “The ‘justice gap’ for sexual assault cases: future directions for research and reform.”

We had to do better. We had to find a way to protect and empower these women while they shared intimate details about their experiences — to do no harm. My nursing background provided inspiration.

Trauma-informed care (TIC) is common in healthcare and humanities practices. It’s based on the premise that trauma makes relationships and trust difficult; speaking about traumatic experiences may feel too risky. TIC recognizes the symptoms and impacts of trauma, integrates this knowledge into processes and actively defends against re-traumatization. Applying these principles to the legal process meant rethinking how we work with clients.

We realized what we needed was a different skillset for dealing with traumatized individuals other than what is typical for lawyers and paralegals. We looked at skillsets in the humanities and found communication, observation and empathy to be common and attractive.

Victim of crime

Armed with this knowledge, we created a new role: Primary Claims Advocate (PCA). For this class action, our PCAs are all female and come from careers in psychology, social work and nursing. They have frontline experience and backgrounds in TIC. We trained our PCAs in our legal processes, the type of information we need to gather from claimants and why we need it. Most importantly, we taught them how to apply the TIC principles they already knew to a legal setting. They were already skilled in interviewing, assessment and referral. We’ve now channelled those skills into an integrated legal team. As a result, our process is claimant-centred (focused on their needs and not those of the legal team), compassionate, predictable to claimants (no surprises) and responsive to claimants’ needs.

We are seeing many benefits from employing multidisciplinary teams. There is no question the interview process is resulting in a deeper probing of facts and better results. The process is more cost-effective: PCAs can spend multiple hours with their clients for what a mid- to senior-level lawyer would charge for one hour. Early estimates indicate a cost that is 20 to 30 per cent lower than a team of legal professionals only in a similar class action would cost. We also anticipate higher compensation, as our PCAs are better at building the trust that results in disclosure of traumatic experiences.

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But most important in all this is better client outcomes and improved experiences. Women are sharing with us how their experience with a PCA has changed their lives, and allowed them to believe, for the first time, that the abuse and humiliation they suffered wasn’t their fault. One client wrote:

“[My PCA] has been my bright light in a darkness to relive.

“Faces, situations, words, tears have been etched on my heart, soul and mind for years. I never realized how bad it was and how much it has affected my life until [my PCA] opened my eyes and listened to me pour my heart out. She sat through my tears, my pain and assured me it was all OK. She made me realize it was not my fault and what I experienced was not normal.

Over the years I had never really opened up, just kept it all inside and accepted the culture that I was exposed to and worked in as normal. [My PCA] brought things out of me that I never knew were buried and affecting everything in my life subconsciously.

“I have started to laugh again. I have let out so much darkness since talking to [my PCA] and seeing the light in life. Thank you does not really seem like enough.

“I will be forever grateful and full of gratitude for [my PCA] entering my life. She has opened a lock that was holding me hostage for 23 years.”

Now that we’ve moved to a PCA model I doubt we’ll ever go back. This model is a gamechanger in civil and criminal law practice. And every practice should consider following suit. Your clients deserve it.