Before the Law stands a doorkeeper. To this doorkeeper there comes a man from the country who begs for admittance to the Law. But the doorkeeper says that he cannot admit the man at the moment. The man, on reflection, asks if he will be allowed to enter later. "It is possible," answers the doorkeeper, "but not at this moment."
— Franz Kafka, Before the Law (1915)
I recently wrote about how Affective Advocacy should be considered essential for modern litigators. As stewards of the conflicts of others – particularly at a time when timely resolutions and access to justice are a vanishing horizon – we owe as much care and attention to our clients' experiences of the justice process as we do to the dogged pursuit of their outcomes.
One of the ways we can build our strength as affective advocates is to seek out trauma-informed training. We all, after all, carry the weights and imprints of our past, and wading through any kind of litigation invariably leaves us with a few more bruises to carry forward. Investing the time to understand how trauma impacts ours and our clients' interactions with the justice system can make us better listeners, better speakers, and more trusted advisors.
Thankfully for those of us in Canada, Myrna McCallum has been offering public teaching, reflection, and dialogue on trauma-informed legal practice responsive to our local context for years. In addition to her stellar podcast, I had the privilege of attending her inaugural multi-day workshop course on Trauma-Informed Justice this past summer – and for those who missed it, she's offering it again November 21-23, 2022.
While I could have written half a dozen blogs on this course, I wanted to share some key takeaways for: (i) those considering taking her course(s) in the future; and (ii) for those who think this sort of training isn't really necessary for those of us outside of the worlds of criminal or family law.
WHAT IS TRAUMA-INFORMED TRAINING?
First off, it is not (and cannot be) merely a "box-checking" exercise. By centering the pedagogical value of lived experience, trauma-informed training asks us to undertake an ongoing learning process that evolves as we do. That said, there are some core concepts that can help guide that reflection – and, as lawyers, we can't help but crave definitions.
Myrna describes trauma as not just the historical "event" but a combination of that historical event and its current imprint. This definitional shift asks us to think about trauma as something living, something that changes, not just a factual past but an evolving relationship between our present selves and those pasts. Our relationship with difficult memories and stressors will change as we do and our circumstances change. Understanding trauma as a non-static presence to be engaged with continuously, rather than some past puzzle to unlock, can help us be more responsive advisors for our clients as they navigate the high-stress ebbs and flows of litigation.
We also have to accept trauma as a "ubiquitous matter of fact." Trauma is "not a dirty word," and a trauma-informed approach shouldn't be reserved for only the most acute or distressing circumstances individuals face. Even if the legal issues we've been retained to assist with seem impersonal – corporate disputes, transactional frictions, tax exposures, etc. – our clients still bring their traumas to the table, and that shapes their thinking, feeling, and expectations. And as every civil litigator knows, there are no truly impersonal disputes; the human dimension is always the engine that drives every conflict forward.
WHAT DOES "TRAUMA-INFORMED PRACTICE" LOOK LIKE?
In addition to the ongoing reflective work described above, there are plenty of small steps we can take to help stay trauma-informed and -responsive in our day-to-day practice:
- Expanded Intake Checklists – Ask clients at the outset to identify any language, topics of discussion, or types of communication that they might find difficult. This can be as simple as confirming whether they prefer email or phone conversations or certain times of day for receiving substantive reports. Ask what external or complementary supports they have available (family members, therapists, other professional advisors) so that you can give clear direction on the limits of your role and so that they know who else they can speak to about their stresses while moving through their legal issues.
- "I Understand" vs. "I Hear You" – Avoid the urge to say that you "understand" what a client is feeling. While this is often intended to convey sympathy, it risks minimizing or trivializing what they are experiencing when, in reality, we can never fully understand or share their feelings. Every individual is "the leading expert in their own lived experience," and so we should convey our compassion in a way that leaves room for clients' affective lives to breathe. Simply affirming that you hear them or that you are listening attentively can offer the same comfort without the risk of sounding pedantic.
- Tracking "Windows of Tolerance" – We're always moving through different emotional states, shifting with the everyday realities of sleep, nutrition, and sunlight, as well as our more unique and individual stressors, anxieties, or triggers. We fluctuate in and out of an "optimal" range of tolerance where we are calm, present, clear-sighted, and able to digest new information. Certain stimulae drive us into a state of hyper-activation, where we begin processing too quickly and are prone to stress, frustration, or impulse. Others push us in the opposite direction into hypo-activation, where we feel numb, disconnected, and non-responsive. Understanding that traumas change the shape of our windows of tolerance and how we flow between them can help us steer our clients (and ourselves) more proactively into that optimal zone of tolerance when making major decisions or giving difficult advice.
- Systematic Debriefing – After major developments or after giving substantive advice, ask clients to explain what they've understood or to describe how they feel about the developments/advice in their own words. Resist the urge to simply ask for their confirmation of a checklist or to ask leading questions. Let the client frame what resonated for them so you can better understand how they are processing the information and assess what may need to be revisited. This kind of 360 debriefing is essential for any high-stress profession where clients (and professionals alike) are liable to have their comprehension and retention of information framed by their emotional responses to new developments.
I want to end by emphasizing something that should not need to be said – but given the prevalence of performative aggression and sharp practice among (especially male) litigators, it bears remembering. Compassion, emotional intelligence, and trauma-informed practice are not mutually exclusive with strength or courageous advocacy. Paying closer attention to the human factors at play in our work simply gives us a greater command of the spaces we occupy and a greater command of our privileged art of advocacy.The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.