Attorneys understand that by trade we must wear many hats to zealously advocate for our clients. However, uniquely, family attorneys practice in a field where trauma and domestic abuse or intimate partner violence are especially pervasive, particularly for those who litigate domestic violence matters. With that understanding, we must consider that, to do our jobs effectively, we require our clients to relive their various traumatic events, often repeatedly and publicly. We also understand that we must prepare our client, who is typically our main witness, to be prepared for scrutiny regarding their lived experience. To do this responsibly, whether the abuse was a singular significant episode or a culmination of years of events, we must understand how trauma works, what it sometimes looks like, and what the nuances of working with domestic violence clients are so we can serve our clients as trauma-informed practitioners.
It is completely normal and quite natural for our bodies to have strong emotional or physical reactions following a traumatic event. Trauma in its essence sets off a “fight, flight, or freeze” response or alarm in our body and mind, which aids us in survival. This is otherwise known as a trauma response. However, while our body and/or mind are in this instinctual space, perception of the world and particularly the event itself can be shifted in ways that make it difficult to recount, assess, or remember circumstances of the event objectively.
Trauma responses can include anxiety, avoidance, confusion, disassociation, exhaustion, fear, and feeling/acting numb. Further, more severe responses can include complete distress without moments of relief and physical symptoms, such as stomach upset, trouble sleeping, heart palpitations and severe headaches. By the time a client has taken certain steps towards relief, they may also suffer from post-traumatic stress that will make it very difficult for them to process the event(s) that have taken place. Further, new trauma may compound and exacerbate preexisting trauma, such as childhood trauma and generational trauma. It is key to understand how each affect the overall processing of events.
Adverse childhood experiences (ACEs) are defined as potentially traumatic events that occur in childhood (0–17 years). ACEs have been linked to mental illness, chronic health problems, and substance use problems in adolescence and adulthood. ACEs can also be a predictor of future victimization and have been shown to negatively impact education, job opportunities, and earning potential. Often adverse childhood experiences can also have a tremendous impact on future violence perpetration, a fact that can provide insight into the behavior of abusers.
Some common examples of ACEs are experiencing violence, abuse, or neglect; witnessing violence in the home or community; or having a family member attempt or die by suicide. Also included are aspects of the child’s environment that can undermine their sense of safety, stability, and bonding, such as growing up in a household with substance use problems, mental health problems, or instability due to parental separation or household members being in jail or prison. Note, however, that many other traumatic experiences also could impact health and well-being of a child, such as poverty (food insecurity or homelessness) or experiencing discrimination.
Consider ACEs as an integral piece of your client’s origin story. As previously mentioned, ACEs can be a predictor of future victimization and/or explain circumstances that led to abusive relationships.
Generational trauma refers to trauma that extends from one generation to the next and begins when a group experiences a traumatic event that causes economic, cultural, and familial distress. Socioeconomic factors and the witnessing of abuse are common cyclical family dysfunction. In response, people with those experiences may develop physical or psychological symptoms. What we learn and are taught is passed down from the experiences of those who are charged with rearing us. ACEs can sometimes be one of events; however, conditions of poverty can be as cyclical as homes where children witness abuse and then are unable to form healthy and safe relationships in adulthood, subsequently passing those experiences to their children. Some cycles are hard to escape without insight that the patterns have been pervasive throughout several generations. Once we understand this, we can see how our clients view of the world can be very different from other perceptions of societal norms.
Often when working with clients with have ACEs, we see them to get stuck on a particular thought pattern or theme. They may ruminate on certain details and appear evasive with others. In the therapeutic setting, mental health practitioners utilize these themes and patterns to make breakthroughs and progress toward healthy coping mechanisms. However, in law, we need to move our clients through these sticking points so we can document the facts of the case and evidence to support our case. Our client’s perceptions and retelling of events are critical to successful outcomes. It is imperative that we develop certain practices to ensure that we are pulling the important details while being sensitive to the client’s lived experience. Here are a few helpful tips to aid you in that process.
While it is understood that lawyers must issue spot, we must also spend time building rapport with our clients, especially those who have experienced traumatic events or circumstances. Asking open-ended questions and listening without judgement allows our clients to be honest and open with us. Remember, you could possibly be the first person to hear this information. Treat the moment with care. Allowing for an open telling of the client’s story will also lead to picking up on other details that you may miss if you are too structured with your intake questioning. This does not necessarily mean spending several hours for your intake but enough time to allow them to express the global issues from their perspective.
Adjust your style to create a safe space with your clients, but make sure to explain the legal process and set boundaries. Be sure to define your role as their advocate, and explain how the process requires you to present their case in court. It is important to address client anxiety around the adversarial nature of trial/court upfront. Though the initial intake can be daunting for the client, it is helpful to explain your initial thoughts about and strategy for the case so you can partner to find them legal protections and relief.
During your intake you also want to be sure to assess and recognize how your clients are relaying information. Are they angry or hostile, embarrassed, guilty, fearful, sad, or combative? Make notes on this. As most domestic violence trials occur in front of only a judge (versus jury), you want to assess the credibility and tone of your client. Make notes for follow-up meetings to address their behavior and to have them explain any inconsistencies. Many times, the storytelling will not be refined, but note your reactions so you can assist your client during trial preparation. Consider using assessment tools, such as the ACEs quiz, to integrate into your open-ended questions and/or create a questionnaire to go through with clients. The rubric can help you stay on topic and make determinations on how to plan out their case.
Finally, make sure you have a referral network, which may include mental health practitioners, support groups, family counseling services, economic resource lists for emergent funds, and/or criminal or victim witness advocates. We must recognize that these clients are very vulnerable and often very emotional. As their attorneys, we may be one of the first to hear about the traumas experienced, but we must know our limitations. Referrals to support services are usually a way to further ensure your client understands they are supported and not alone.
Although the school of thought around domestic violence is to believe victims, we know that the standards of the court require more. Taking a trauma-informed approach to the discovery and evidence process is critical. There may not always be physical evidence in the form of visible or documented injuries, especially if coercive control is involved. Familiarize yourself with the various power-and-control wheels so that you can again assess where evidence can be collected. Text messages with coarse language may be key, or call logs to demonstrate repetitive calling may be necessary. Also, where there has been financial abuse, bank and/or credit card statements may be demonstrative of a control dynamic. Many key pieces of evidence may not be obvious and may stem from our client’s histories with trauma throughout their lives.
It is helpful to educate your clients on these power-and-control themes in this context. With their increased knowledge, they will be able to partner with you to recall instances that help them demonstrate their experience. The idea of not being believed is also a trigger for survivors; therefore, it is also important to explain to clients that it is expected that they may not have many, or any, witnesses to their abuse. Domestic violence is often experienced in isolation, but there may be people who witnessed off-color events or witnessed changes in the client’s lifestyle or behavior during the traumatic period. You want to understand the client’s social network so that you can assess what can be used at trial.
Tell your clients the truth about the legal process—that it can be hard, emotional, and sometimes can seem unjust—so that they can properly prepare, both practically and mentally, for the adversarial nature of the court setting. Next make sure you know and understand your client’s story. Domestic violence experiences are nuanced and include a lot of history leading up to the event or events that shape the pattern of long-term abuse or egregious event. Prepare and share a list of questions that you plan to ask on direct testimony, and lay out how you plan to use your evidence. Although we cannot provide a script, it is important to listen to how your client answers your questions and to make notes objectively.
While preparing a former client for a final restraining order hearing against her husband, one of the authors of this article asked, “How did you meet?” The client’s response revealed that her husband followed her onto a public subway and forced her to exchange numbers. Further she revealed that on their first date, she was date raped. While they did not speak after the incident, and she did not report what occurred, they later bumped into each other at a party and began dating. They were married for the next sixteen years, and her abuse continued to escalate. Why was that important to know? First, is important to the overall story. Second, that type of story has many layers, but it is also not one you would want to hear for the first time in open court! As attorneys, especially in the trial setting, we have to give our clients a voice, but, as a rule of thumb, never ask a question to which you do not know the answer. Witness preparation should focus on knowing and understanding your facts to elicit the client’s story through their testimony.
Normalizing events based on various traumas is very common. It is also common for clients to repress painful memories to protect themselves. The key here is to remember how to read between the lines and ask the right questions, considering our understanding of trauma responses. It also becomes integral to “speak” their language as well as educate the court at times. A client may use language like “I was choked out,” as a way to describe “strangulation”; however, when preparing our clients, we must explain how to use language that describes the act itself. For example, “the Defendant put two hands around my throat and caused me to lose consciousness for approximately 30 seconds.” These types of adjustments help your client to feel prepared and more comfortable with using their voice and telling their story.
We are not stating that family attorneys must double as mental health professionals, but it is important to understand the language of trauma so you can educate and advocate appropriately. Strive to understand the effects of long-term trauma on the brain, be cautious about pushing too hard, and adjust your style to be effective in listening and preparing your client. Recognizing patterns of behavior from the first intake through trial will help you collaborate with your clients and involve them in their own healing in ways that give them back their power.
