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October 11, 2023 BEST OF ABA SECTIONS

Managing Grief: Death and Trauma in the Practice of Law

Judge Roy Ferguson

Death permeates the legal profession. And while we’re great at helping our clients, we’re terrible at helping ourselves. We forget that exposure to our clients’ grief impacts us as well, no matter how impervious or unaffected we may feel. It may manifest in obvious ways, such as sleeplessness, tears, or exaggerated responses to distressing stories. Or it may be more subtle, taking the form of cynicism, emotional numbness, or a general loss of optimism. The former are signs of secondary traumatic stress; the latter, vicarious trauma. These are the two types of indirect trauma that plague the legal profession.

Secondary traumatic stress, or STS, is the empathic internalization of the suffering of others, causing the listener to feel the speaker’s pain and suffer symptoms similar to post-traumatic stress disorder. Vicarious trauma describes a profound shift in broad personal opinions due to repeated interactions with trauma victims. For example, someone who represents battered women may come to fear all men. It occurs slowly, almost imperceptibly.

Indirect trauma isn’t the only consequence of professional exposure to death. Direct trauma, which describes the pain of personally experiencing a traumatic event, can also result. And if that’s not enough, secondary trauma can reach into your past and connect with your own prior traumatic experiences, resurrecting pain from long ago.

Crying in Chambers

Comforting grieving clients on a typical day is hardly noteworthy. But not all days are typical. One Monday morning, an elderly man walked into my court chambers. He introduced himself as the father of a defendant I’d put on probation and sent to intensive in-patient alcohol rehab a few years prior. After getting out of rehab, his son had gotten his life together. And then, on the prior Friday, he’d gotten drunk on a job site and fallen to his death. This grieving father had come to tell me face-to-face. Not to blame me, but to thank me. By putting him in rehab rather than back in prison, I’d shown his son that he was worth saving. That realization motivated him to change his life. This grieving father was grateful that I “gave him back his son, even if only for a short while.” After he walked out, I sat in chambers and cried. My faith in the entire system was shaken. I’d done what I could to help him, and he died anyway. This quick conversation with an old man who had the best of intentions and didn’t shed a tear resulted in my suffering direct, secondary, and vicarious trauma that lingers to this day.

When Your Client’s Trauma Triggers Yours

We’ve all grieved the death of a friend or family member. We know those losses in our personal lives are coming, and we accept them as part of life. We grieve and we heal. But years later, secondary work-related trauma can dredge up that old pain, forcing you to mourn the personal losses all over again. It personalizes others’ grief by combining their pain with your own. This merger turns secondary trauma into deeply personal grief.

A judicial colleague of mine suffered a terrible personal loss as a young lawyer. His wife gave birth to a beautiful baby girl who died after only a few days. Years later, as a judge, he presided over a custody case involving two young children. After a series of hearings, he granted custody to the father and ordered the mother to turn the children over to the father.

A few days later, my colleague learned the mother went home, grabbed a gun, and killed the children, her mother, and herself. To make matters worse, the massacre occurred close to the anniversary of his own daughter’s death. His grief over the death of those children merged with his personal grief over the loss of his daughter. The indirect trauma of the case was magnified by the loss of his daughter so many years before.

The Guilt Trips You’ll Take

There’s no situation so bad that you can’t add a dash of guilt and make it worse. Lawyers often harbor an unrealistic perception of their power to control outcomes. And because we believe we determine the result, we feel guilty when something goes wrong.

Recently, the father in one of my closed custody cases contacted his former lawyer and asked her to represent him in a new case. The lawyer replied that she would . . . after he paid his outstanding balance from the prior case. A routine demand for repeat customers. He chose another path, however. He killed his wife and himself in front of her child. When I discussed it with the distraught lawyer the following week, she hinted at blaming herself.

All three of the legal professionals in the above stories felt responsible for tragedies they couldn’t possibly have foreseen. I questioned whether putting the alcoholic defendant on probation hastened his death. The judge believed he should have somehow anticipated the risk to the children and prevented their deaths. The lawyer wondered whether she could have prevented the deaths of her former client and his wife. And those feelings of guilt added to our pain.

Physician, Heal Thyself

You might not suffer from the acute symptoms of STS. But the impacts of work-related trauma aren’t always obvious. Vicarious trauma can slowly eat at you, leaving you more withdrawn, less optimistic, or cynical. It degrades our attitudes toward life and thus impacts our families.

As a group, lawyers aren’t the best at addressing our own problems. Self-medicating with alcohol is an easy, cheap, and professionally accepted way to “take the edge off.” Thirty-seven percent of attorneys self-report substance abuse problems (Patrick R. Krill et al., The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, 10 J. Addiction Med. 46 (2016)). And when self-medicating doesn’t work? Eleven percent of lawyers report considering suicide during their careers (Jerome M. Organ et al., Suffering in Silence: The Survey of Law Student Well-Being and the Reluctance of Law Students to Seek Help for Substance Use and Mental Health Concerns, 66 J. Legal Educ. 116 (2016)).

There’s No Shame in Being Human

Whether you feel affected or not, I suggest that we all benefit from introspection. Consider how your experiences may have influenced your shifting views on life. Examine how you treat people around you, both in and out of the office or courtroom. Be honest with yourself about what you see. But don’t stop there. Ask coworkers and family members about your behavior and attitude.

And, finally, remember—it’s not just about you. Your coworkers may be in distress. You might think you handle the stress with ease, but the people who care about you may be suffering by watching you struggle to do so. You can reverse the damage by taking action. Try to use your experiences in a positive way. Consider looking for ways to give back. Let go of guilt and embrace optimism. There’s no shame in being human.


This article is an abridged and edited version of one that originally appeared on page 2 of Experience, July/August 2023 (33:4).

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Judge Roy Ferguson

94th District Court

Judge Roy Ferguson presides over the 394th District Court—the largest judicial district in Texas—and serves by assignment on the Eighth District Court of Appeals. He’s active in State Bar of Texas leadership, including serving on the Texas Access to Justice Commission, the Texas Children’s Commission, and the Family Law Section Council.