The National Child Traumatic Stress Network describes secondary trauma as “the emotional duress that results when an individual hears about the firsthand trauma experiences of another.” And trauma? The American Psychological Association defines trauma as “an emotional response to a terrible event like an accident, rape or natural disaster.”
That secondary trauma affects lawyers ought to be unremarkable. Often, we see people in the worst states, facing no good options. Often, too, they bring with them a set of experiences that affect us deeply.
Layered on top of what we see when we meet a new client are the limitations we face. Often, the cake is baked! We cannot change the facts, and the law may leave us with a set of unsatisfactory options. That fact—the level of helplessness we face, as so-called problem solvers—traumatizes us, too.
Scholars have written about secondary trauma and lawyers, exploring the topic from a psychological perspective. See, e.g., Andrew P. Levin et al., Secondary Traumatic Stress in Attorneys and Their Administrative Support Staff Working with Trauma-Exposed Clients, 199 J. Nervous & Mental Disease 946 (2011). Further, see links to state bar sites with information about dealing with secondary trauma, e.g., Lisa Caplan, Secondary Trauma in the Legal Profession During COVID-19, MSBA (Aug. 5, 2020); “Help! My Tank Is Empty.” State Bar of N.M; and Compassion Fatigue, N.C. Law. Assistance Program, https://bit.ly/2FZHEOM. In the main, though, these papers focus on lawyers and how their clients’ trauma affects them. They assume, in a sense, that lawyers offer a clean slate. We are professionals, showing up for work with clear heads, ready to take on our clients’ problems, however difficult they might be.
In COVID-19 times, our clients still bring to us their experiences. At the same time, we share with one another and everyone around us a shared trauma: a world that does, in a word, suck!
Can we tie COVID-19 to trauma? You bet! Without feeling too constrained by the APA definition, we reach not at all if we call the pandemic a natural disaster. I leave to others issues about how our governmental response to COVID-19 has impacted us. Tens of millions of people face a new normal, as the lives they knew are gone, for the foreseeable future. Lost jobs. Children, in need of the special attention they get at school, sitting in front of a computer screen for six hours. People we know and love with relatives and friends who were alive and well until they died from COVID-19.
As lawyers, the trauma we see affects us. When we take on clients, we often learn more about them than we wish we knew. Their battles are our battles, but our success in establishing and maintaining boundaries limits how their problems affect us. Ditto for employees—the people with whom we spend more waking hours than our spouses and children—who struggle.
Under the best of circumstances, then, we hit the low—left—end of the trauma continuum frequently. Lawyers who work in juvenile court hit its right side often, as do lawyers in other settings where the legal system tries to fix broken lives. And, again, ditto for staff with lives.
I intend to focus, here, on what we face and what we can do to help ourselves. No easy or certain answers, but I will share what works and has not worked for me (and those I have observed), with a healthy appreciation for the fact that we live in very trying times. Traumatic times!
Before I begin, I need to share some fine print. I have never taken a psychology class. Further, I do not now and never have handled marital dissolution cases. I did have one dissolution matter for about 10 days. H & W owned a business together. Divorcing. My referring friends assured me that W needed and only wanted a lawyer with a good business head. On Day Nine W called to rant about seeing her [explitive] husband with that [explitive], blah, blah, blah. I withdrew promptly.
I have always been a real estate and business lawyer, but I have also handled elder law matters for more than 35 years. Elder law? No good definition exists, but my partner—who limits her practice to elder law—and I define it to include:
- estate planning,
- probate and trust administration, and
- protective proceedings for adults.
Protective proceedings involve identifying, appointing, and monitoring fiduciaries who take on protecting incapacitated people and their assets. Common terms are guardianships and conservatorships, but states define these roles in no uniform way.
Many of our contested matters end up being, at least a little, sibling divorces. Mom and Dad die or become demented, and the adult children set to fighting. Think Tommy and Dick Smothers—“Mom always liked you best,” said Tommy to Dick, often—without the charm, the humor, or the checkbook.
I know from family upset, even though I do not take dissolution cases. I see clients when they exhibit bad behavior and when life hits them hard. And I see lots of matters in which we must choose from among a series of bad options.
A couple of more things about me. For the past 30 years I have immersed myself in professional responsibility issues. For six years I served on the commission that ran Arizona’s lawyer regulation system. Since then, I have represented lawyers who get letters from the state bar and have also handled more than 20 legal malpractice suits.
I also served as managing partner of a medium-sized firm in the later 1980s, through the 1990s. When I left in 1999, I did 10 years as a solo and five years at a law firm. After three more years as a solo practitioner, my partner and I started our firm more than two years ago. (Since mid-2015 I have also served as part-time general counsel for a vocational school system.)
So, what? I have earned part of my living watching lawyers—observing good ones and bad ones and paying attention to how we roll. I have also worked in several different settings. I think—and hope—my experiences offer enough of a basis for my comments here.
The times suck … but I mentioned that fact already. We face challenges from every direction … but let us focus on the practice of law. How does practicing law in COVID-19 times challenge us?
I begin with case selection, for success and trauma control depend on it. Successful lawyers choose their cases wisely! In good times, avoiding bad cases requires discipline, but “busy” provides a lot of assistance and a ready explanation for passing on matters. During slow times? Too many among us grab for anything when the phones have stopped ringing and we worry about payroll and next month’s rent.
We try hard to view every prospective new matter through this prism: Can we achieve success for the client for a fee that makes economic sense? My proposition does not ignore the importance of pro bono work. The legal services sector stands out among professions for providing free and reduced-fee services. My pitch? Choose cases in which you want to work for free and avoid cases that go south and result in righteous client anger, coupled with waived fees or a fee dispute and the likely counterclaim alleging malpractice. We fail too often, but when we focus on this question, we believe we avoid a lot of bad cases.
Not all bad cases are equal. Just Bad are cases in which we obtain an OK result but cannot charge the client for the time it took to achieve the outcome. Worse are Just Bad cases with extras, such as a very difficult client, a jerk on the other side of the case, being conflicted out of the good case that comes calling next month. Worst? These are bad cases that never end, draining our wallets and sucking the life out of us and our staffs.
About staff and case selection? Involve them and listen to them. In many instances, they offer valuable insights. Our office manager has an M.A. in early childhood education. Her knowledge base translates very well during staff meetings when client issues arise. Pay attention, as well, to client contacts with staff. The worst clients suck up and kick down, so if a prospective client treats our people badly, send them packing.
In the client selection process, we never ignore client expectations. Even if we believe we can achieve success for a fee that makes economic sense, we pass if success definitions do not match up.
COVID-19 presents special client-selection problems. Bad decisions are bad decisions, whether bad judgment, a lack of character, or stress represents the primary cause. In any event, COVID-19 will not help someone who makes bad decisions. And you will get the trauma they bring on.
Get the Facts
To properly evaluate any case, we must investigate. Rule 11— we must be acting for proper purposes; our positions must be supported by the law; or there is a good faith argument for extending, modifying, or reversing the law, and when we say something it must be true to the best of our knowledge after a reasonable inquiry—and the Rules of Professional Conduct require us to get the facts right, more or less. Judge and lawyer regulation departments might cut us some slack because of COVID-19, but none of us should bet our careers on that proposition.
Investigating facts in COVID-19 times? Hard. Just getting into a courthouse to review a docket if you are taking over a case—or if there have been prior proceedings—takes time and creates risk. Getting documents from clients happens, usually, during an initial consultation—not so much when you meet the client by telephone or Zoom. Ask your client to send documents electronically and, often as not, you will get photos, page by page, via text messaging.
The most basic way in which we investigate a new matter—talking to the client—works poorly. Phone > email, and Zoom > phone, but an in-person meeting works best to evaluate the person who wants to hire you. And, even in person, masks hide lots of social cues.
Bottom line? Mind your obligations, be at least as wary as you were back in the day, and do your best.
Meeting in person creates problems for lawyers and for those with whom we will be meeting. We limit our in-person meetings to (a) estate planning signings and (b) situations in which the people with whom we will meet—usually prospective clients—really need to be physically present.
When we meet in-person we require the full drill: masks, gloves, and hand sanitizer before the gloving. No exceptions! Why? Trauma avoidance. We do not want to make someone sick, and we do not want to get sick.
Access to Courthouses
Every jurisdiction has different policies and practices regarding dockets, physical access, emergency hearings, etc. In no jurisdiction, however, do we have anything akin to normal.
In the best of times, lawyers face emergent situations that require judicial intervention. Or, at least, we think we need to talk to the judge . . . Now! For real, though, while inevitable discovery disputes in Bet the Farm cases can wait, stuff happens in marriages and in protective proceedings that needs attention right away.
When a real emergency exists, it bumps up against reality. Limited access to judges. Telephone-only hearings. Finding available psychologists and other professional witnesses. Opposing counsel’s limitations. Technology problems.
Emergencies represent only one challenge. In a 45-day period in early summer I faced:
- An effort to postpone a trial that involves a dispute about the validity of a signature.
- Opposing counsel’s request for extensions because his mom died from COVID-19 and he was exposed and quarantined.
- A new case involving fraud claims, where the defendant would have a right to a jury trial and, with it, a right to avoid a trial for as much as a couple of years.
The trial goes forward, in person. The extension requests got an affirmative response within 60 seconds. And we passed on the case, in part because I did not believe we could deliver an outcome within a reasonable time frame for a fair fee.
These limitations matter. At a minimum, we need to accept the fact that normal problem-solving tools may not exist, or that COVID-19 issues limit our ability to use them. And because ER 1.2 requires us to “consult with the client as to the means by which [the objectives of the representation] are to be pursued,” we must discuss with our clients what we can and cannot accomplish.
Money presents challenges, always. With tens of millions suddenly unemployed, we all have clients who cannot pay. Litigation delays add to the problem, for in plenty of cases wrapping up a matter involves events that might generate cash to pay fees, e.g., a sale of property or an exchange of a business interest for cash.
We also face people who need our services and cannot pay a required deposit when they engage us. People are in crisis—people whose needs explain why we exist.
The federal government has provided meaningful assistance. The Paycheck Protection Program (PPP), effectively for many of us, offered payment of wages for 60 days. The Small Business Administration’s Economic Injury Disaster Loan (EIDL) program gives small businesses—including law firms—low-interest, long-term loans.
PPP relief aside, loans are loans. We must repay them. In uncertain times, a lifeline helps, but it can become a noose if we do not manage it well.
There are lots of issues here.
- Child care. (Our office manager’s stepson attends “video school” every other week at an empty desk in our office. A part-time employee works from home so she can manage her children’s school experiences.)
- Illness. (If you are sick, you stay home. No excuses! No explanations! And our sick leave policy gets ignored. You get paid to stay home.)
- Wage rates. (For a variety of reasons, most of our employees make more money than they did in January 2020. Reducing salaries and hourly wage rates? No way.)
- Interfacing with staff. (My partner and I work from our homes. We stay away from the office as much as possible because more contacts with more people increases COVID-19 risk exponentially.)
Lawyers in large or medium-sized firms benefit from professional management. Small-firm and solo lawyers live in DIY-Land, mostly. Taking a practice into the Virtual World sounds easy—and maybe it is, if you have a tech-savvy group of lawyers and other employees—but for firms that lacked those capacities as of March 1, 2020, challenges abound.
Beyond being virtual, however, life goes on. Mail arrives. Pleadings must get filed. Wills and powers of attorney must be signed (before witnesses and a notary public). IOLTA accounts must be reconciled every month.
Developing clear processes will make life much easier. Cross-training, so that your staff can cover for one another, helps, but accountability matters too.
Subcontracting tasks, in the right circumstances, makes sense. By way of example only, in our practice we do our own court runs, and the lawyers do them frequently. (Interacting with court staff, including judges, pays big dividends!) During COVID-19, we have hired a runner service. Lightening the load, here, reflects a decision to keep all of us out of public buildings as much as possible.
Use checklists. Review case files frequently. Have weekly staff meetings. Recognize the demands on a practice in these times and build safeguards.
We all know this bromide: plan, plan, plan! Its corollary tells us success depends on planning.
Planning matters, but, in these times, plans offer plenty of trauma opportunities. The lease term ends, with a decision about renewing or moving. A vendor contract requires a three-year commitment. Business supports hiring an associate . . . barely. And so on.
Sign that lease. Make the contract. Hire the associate. And expect, soon, what would have seemed impossible in January 2020. Expect what? Who knows, for it seems certain that no one among us could have said, five years ago:
- I will be masked in public.
- I will be working from home 90 percent of the time.
- Restaurants will not be a part of my life.
Go slow on everything that, previously, seemed like what we all do. Reality tells us we can expect, and only expect, uncertainty for the foreseeable future.
Does COVID-19 provide opportunities? You bet! Can we envision working in a smaller setting? We have a lab experiment forced upon us. Can we get by with a smaller support staff? Probably not, but we can all figure out how to improve productivity and quality.
Lawyers, by temperament and training, try to control situations. COVID-19 provides a marvelous opportunity to recognize how much we control not even a little. Accept that fact in uncertain times and use every available opportunity to evaluate and reevaluate our operations.
I am not Abby, Ann, or Ruth, here to provide personal advice. I will observe, however, that many of us find ourselves not living the lives we lived until six months ago. In my case, what happens not at all now includes:
- No Sunday dinners with my 94-year-old stepdad, with whom I had supped on Sundays for the past four years
- No visits to my mom’s last-surviving close friend, with whom my GF/law partner and I would get together every couple of months
- No weeknight dinners at our neighborhood bar
- No visits with my daughter, who lives a continent away from me
- No travel
Solutions? No good ones, but regular telephone calls help. I try, once or twice a week, to call an old friend (often someone who fits both uses of the word “old”) or one of my relatives. A good friend has a Zoom happy hour from time to time. Facebook serves a purpose, too, as a means for getting touches.
Exercise matters greatly. During sixty-three years of living, I have been a gym member on several occasions and have spent $10,000+ on home gym equipment. Now? I walk 20,000+ steps a day. Up and down the long hall in my home, for about 10 minutes every hour. A lifesaver, truly!
Eating well helps. Drinking less, too. Mostly, though, kindness counts. Being kind to others and, as well, to myself. We live in deeply troubling times. Expecting pre–March 1, 2020, effort and outcomes seems fanciful, and accepting that notion relieves much of the day-to-day stress that, over time, traumatizes us.
Keep one more thing in mind. In these times, everyone experiences life differently, but the conditions I have described—and many more—affect everyone. So, when you try to get something that involves others, think back to high school math and the concept of exponents. As situations get more complicated, the pandemic and its consequences affect it more and more.
In closing, we get our cues from many places. Recently, I saw an article about a new movie, I’m Thinking of Ending Things, directed by Charlie Kaufman. Mr. Kaufman, who directed mindbenders Being John Malkovich and Eternal Sunshine of a Spotless Mind, responded to the lead actor, who asked him what the movie was about, two days before shooting began. Mr. Kaufman responded thusly:
I think we just have accept that we don’t know, and just accept that we’re going to fail sometimes. We have to embrace that.
To limit the trauma associated with these very strange times, we must accept our limitations, and those of the systems that we think we have mastered. No other path exists.