The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.
Counseling is key to representing and advocating for any court-involved child.[i] Working with child clients in court presents challenges, including understanding the role of trauma on child and adolescent functioning and understanding how a child’s stage of development may impact the counseling role.
This article incorporates principles of child development and trauma into an approach to counseling the child client.
Part 1 explains how to assess and understand a child’s developmental level, and emphasizes the importance of building rapport and establishing trust with your client.
Part 2 shares multidisciplinary strategies and tools to assist you in counseling the child client and addresses common challenges that arise.
Assessing and Understanding Developmental Level
Chronological age is a poor predictor of a child’s abilities. Instead, the client’s developmental level--a dynamic composite including the client’s level of physical, cognitive, social, emotional, and academic growth--is more insightful. Once you understand your client’s limits and capabilities based on developmental level, you can devise appropriate, informed strategies for effective communication and counseling. A good grasp of a client’s developmental level also promotes a collaborative working relationship and keeps clients from becoming frustrated, discouraged, oppositional, and/or uncooperative. To gauge a client’s developmental level and abilities, begin by gathering information about the following factors:
Review any existing psychological (or psycho-educational) evaluations for a thorough assessment of cognitive functioning. For example, does your client have an Individualized Education Plan (IEP) to receive specialized instruction for a learning disability, emotional disability, or both? Review the testing and IEP documents because they include specific, concrete recommendations for conveying and communicating information to your client based on his learning and communication styles, and information-processing abilities.
School records such as report cards, teacher comments, honors, disciplinary problems, or transfers are all helpful. Look closely at the client’s performance in different classes. This will help you to build on the client’s strengths and avoid overextending in areas of limitation. For example, if mathematics is a strength, try communicating and exchanging information about the client’s personal data, evidence, or options using quantitative terms. This is important as you develop rapport and establish trust with your client.
Pediatric chart notes include assessments of whether children achieve their physical and developmental milestones on time and other information about developmental level. A pediatrician’s general clinical impressions also can be informative.
A stable, enriching home environment -- which includes at least one consistent, caring, adult caretaker -- promotes physical, cognitive, social, emotional, and academic growth. A client with consistent care and an invested caretaker is at a distinct advantage and likely to have a higher developmental level. Many clients come from chaotic home environments, which can diminish one’s developmental level.
In general, the developmental level of girls is more advanced than the developmental level of boys.[ii] Females are often better at expressing themselves verbally than males, which promotes social, emotional, and academic growth. Using alternative forms of communication, such as note-taking, diagrams, symbols, outlines, and timelines bolsters communication with male clients, and females as needed.
Conservative estimates show 50 percent of court-involved children experience traumatic stress symptoms or full-blown Posttraumatic Stress Disorder (PTSD).[iii] PTSD is an anxiety disorder characterized by increased arousal and hypervigilance. Children who have experienced trauma and/or are experiencing PTSD are more likely to perceive people and situations as threatening. They also are more likely to exhibit behaviors such as:
- worrying about dying at an early age
- losing interest in activities
- having physical symptoms such as headaches and stomachaches
- showing more sudden and extreme emotional reactions
- having problems falling or staying asleep
- showing irritability or angry outbursts
- having problems concentrating
- acting younger than their age (e.g., clingy or whiny behavior or thumb sucking)
- showing increased alertness to the environment (hypervigilance)[iv]
Often, children experiencing these symptoms come from homes characterized by inconsistent care, unhealthy relationships, violence, ambivalence, and/or disorganization. These factors lower the child’s self-esteem and place the child at higher risk for aggression.[v] Children who carry these feelings into their social relationships are likely to misinterpret social cues, perceive threats from peers, and respond with anger and aggression.[vi]
These factors present challenges for the attorney-client relationship. As the lawyer, you can provide your client with safe, clear, and reliable, experiences by modeling appropriate interactions. Using a trauma-informed approach can reduce client anxiety and its potential impact on the child client. By developing a productive relationship with the child client, you can increase the likelihood of a more positive outcome for the child. Additionally, building rapport and establishing trust are key to a productive, collaborative attorney-client relationship, and the ultimate success of the case.
Competence involves a basic comprehension of the purpose and nature of the legal process.[vii] It includes:
Understanding--capacity to provide relevant information to counsel and to make sense of courtroom procedures and personnel.
Reasoning--ability to recognize information relevant to a legal case and to process information for legal decision making.[viii]
Appreciation--ability to recognize the relevance of information for one’s own situation.
Assessing and understanding these factors gives you insight into your child client’s developmental level and helps you communicate with and counsel your client so he can make informed decisions about his case. Another prerequisite to good decision making is the client’s ability to trust you, the lawyer, and your advice.
Building Rapport and Establishing Trust
Successfully counseling the child client requires a collaborative approach. To develop an attorney-client relationship that encourages collaboration, you must build rapport and establish trust with your child client.[ix] The following strategies will help you build rapport and create conditions that promote collaboration and establish trust with your child client:
Always make establishing and re-establishing rapport the first order of business.
During client meetings, you will severely compromise the collaborative process if you do not cultivate rapport before launching in to discuss legal issues with your client. Let your client begin the conversation. Allow a nonstructured start at the beginning of an interaction to draw a sample of the child's phrasing and language and learn what is important to the client. Such stress-free conversation also helps build rapport and establish trust – key components to successful counseling.
Create a quiet, distraction-free, comfortable meeting environment.
Empirical evidence suggests that when a child feels safe and comfortable, he will be more likely to communicate his desires and preferences, and to engage in positive decision making.[x] Children with a history of trauma often have trouble concentrating and may become hypervigilant. Even in the most difficult situations, it is possible to create conditions that enhance your ability to communicate with and counsel your client. Take these steps:
View the meeting location and make any adjustments to room configuration. Reduce/eliminate visual, auditory, and/or motion stimulation that could cause anxiety and distractions. A quiet environment with dimmed lights and reduced visual or tactile distractions works best. For instance, when meeting in a room with a television, window, radio, computer, or other obvious distraction, have your client sit with his back to the distraction.
Consider where you sit in relation to your child client. Sitting directly across the table, interrogation-style, can be perceived as threatening and creates a barrier between you and the client. Instead, sit beside or catty-corner to your client. This shows you are side-by-side working on issues together.
Look at materials together to show you are “with the client” supporting him as he makes sense of the situation and determines his best course of action.
Consider the impact your body language has on the meeting environment and tone. Children are adept at reading the body language of adults. Crossing your arms, frowning, looking down over your glasses, checking e-mail or text messages, and other body language sets the wrong tone and sends your client the message that you are not on the same team.
Develop a collaborative, interactive, style
Strategies to help you develop a collaborative style to interact with child clients include:
- actively engaging clients in verbal give-and-take
- actively encouraging children to have their full say
- staying open to and encouraging questions and negotiation
- providing clear explanations and rationale behind legal advice
- setting expectations for clients that will instill a “you can do this” attitude
- recognizing the child’s individual interests and attributes
- being responsive, warm and nurturing, while at the same time assertive and supportive
- creating a style and atmosphere that encourages the child to ask questions and clarify any confusing issues
By setting a collaborative tone and creating an open and respectful environment, you will enhance communication and ultimately your ability to effectively counsel your client.
Use language the child understands
Legal interviews and counseling sessions with child clients are often conducted in language that exceeds the client’s verbal comprehension and developmental level.[xi] Child clients are confused by complicated language, compound or excessively long sentences, and legalese. Using language the client does not understand also interferes with your relationship. Conversely, using language the client readily understands reinforces and enhances rapport, trust, and collaboration.
Strategies to match language to the child’s level of understanding include:
- Be attentive to the client’s language, phrasing, terms, and names of important people, places, or things.
- Use casual conversation at the beginning of an interaction to draw a sample of the child’s phrasing and language and give you a better understanding of the client’s developmental level.
- Get the child to discuss a neutral topic, using humor to get the child to smile and laugh. This puts the child at ease with the situation and also gives you a sample of the child’s own language use.[xii]
- Err on the side of using language below or at a child’s developmental level (and become more elaborate once a client’s comprehension is well established) to enhance the likelihood of comprehension. (Caveat: avoid assuming clients cannot comprehend relevant information. Child clients usually understand much more than adults give them credit for understanding. Even young children of a relatively low developmental level and those with developmental delays or verbal communication deficits comprehend more than is obvious.
- Use nonverbal and verbal strategies to enhance comprehension. Even if a concept seems out-of-reach, try to convey it in ways that make sense to the client. Children, especially those with trauma or maltreatment histories, are adept at “reading” adults and can see when someone is withholding information even in a benevolent, well-intentioned way.
- Use open, back-and-forth discussions to enhance your rapport and produce better outcomes for clients.
Using accessible and understandable language with the child client also leads to productive counseling sessions and more informed decision making by the client.
Keep your messages simple, concise
Making information accessible and understandable to the child client requires not only appropriate language, but also simple and concise delivery of the information. Young children tend to focus on one aspect at a time in conversation and, therefore, the best sentence structure is one with a simple subject, a verb, and an object. This pattern is recommended until at least age eight[xiii] and probably older (11 years) for this population. Avoid long and complicated sentences altogether.
Lawyers working with children tend to present information in an unstructured way that is fluctuating and off topic, especially with younger children. This sort of topic incoherence is typical in younger child clients, and it may be that attorneys mirror the communication style of younger clients. Thus, take care to avoid frequent or rapid switches of topic. Children can be serious and task-focused when needed, but if they can choose between playing and discussing (likely difficult topics), they might well opt to be playful and off-topic.
In addition, be aware of what your client has been through prior to meeting with you. If you speak with your child client after he has been through a crisis, you will want to keep your meeting especially short and simple, and repeat important points several times.
Practice active listening
Active listening builds rapport and enhances trust. Active listening can take many forms:
- repeating what a client has said
- asking clarifying questions
- using empathic statements at appropriate times
- restating client-generated ideas
- using the child’s words for people and things (e.g., if your client calls her brother “Shorty” (instead of his given name), call him as Shorty as well)
“Active listening is not just a nodding of the head, it is making comments throughout a child’s story that lets them know that you’re hearing them. So if they’re talking about being frustrated, you might say, ‘That sounds really frustrating’, and if they are talking about a really difficult situation at home, you might say, ‘Wow, that must have been really hard.’”[xiv] Through active listening, you build rapport with your child client, and further cement the foundation for successful counseling.
Use open-ended questions
Open-ended questions facilitate and reinforce building rapport and establishing trust. Conversely, closed-ended or leading questions, particularly at the beginning of the relationship (and even at the beginning of a conversation) can effectively shut-down communication because they inhibit the exchange of information and severely limit responses.
- Use open-ended questions to optimize the ready exchange of information.
- Be mindful of your phrasing, making modifications as needed.
- Be aware when clients are providing limited, brief, yes-or-no responses, and craft questions that evoke greater responses.
- Use informal prompts (e.g., “tell me more”) to encourage a client to provide more information, including key facts that otherwise the client might keep to himself.
The initial, rapport-building period of the legal conference is a good time to ask open-ended questions and set the stage for ongoing open-ended questioning throughout the relationship. Once you have built rapport and established trust with your client, you can then ask more pointed questions to clarify and obtain specific information. This technique, often called the funnel technique, can be effective for gathering information with child clients. It involves three stages:
Stage 1: Begin gathering information using open-ended questions. Let the child tell his story from start to finish without interruption. In allowing your client to tell his story uninterrupted, you learn more than just the facts. You also learn what parts of the story are important to him. These parts may not be critical to your case theory, but knowing them will enable you to better understand your client and counsel him effectively. It also shows your client that you respect him and what he is saying, thus encouraging further communication.
Stage 2: Continue using open-ended questions, though these questions can be directed at clarifying and filling-in missing information (“Was anyone with you?” and “Where did you go next?”).
Stage 3: The goal as lawyer and counselor is to make sure your client fully understands important legal terms and issues and the pros and cons of choosing one option over another. During this stage, you will ask more pointed, specific questions.[xv]
Let the client evaluate options.
The child must ultimately live with the outcome of his case, as well as the decisions he makes. Actively and continually support your client so he can fully evaluate his options and think through various consequences and outcomes. Strategies to help your client fully understand and evaluate his options include:
- Have the client make a pros and cons list. This lets him fully elaborate and evaluate his concerns about potential consequences of choices. For younger, children especially, serve as scribe, allowing your child client to voice thoughts and concerns and watch them take shape on paper. This signals how central their input and ideas are to the process and reduces concerns about suggestibility.
- Have the client evaluate options to reduce impulsive or snap decisions. This helps the child take ownership over the decision-making process and the ultimate outcome.[xvi] As the lawyer, you are responsible for making sure the client understands and properly evaluates all options and the short-and long-term consequences.
Take an unbiased approach.
Avoid allowing your personal biases or relevant personal history to interfere with providing objective, clear, concise advice. Working with clients in the juvenile justice and child protection systems is challenging and may evoke strong personal reactions. These clients are often difficult interpersonally and have experienced many disadvantages. All of this combined can trigger strong emotional reactions from even the most unflappable adults. Take these steps:
- Take an honest inventory of personal reactions and biases that arise from this work on an ongoing basis.
- Acknowledge challenges when they arise and understand and work within your limits.
- Develop a system of support including colleagues, mentors, or others who can provide you relief and serve as sounding boards.
Be honest and reliable.
Dishonesty or not following through can irreparably damage your relationship with your young client. Take these steps:
Be honest with your client and do not make promises you might not be able to keep. It is tempting to want to make your client feel better, but only offer to do as much as you know you can achieve.
Be reliable. Child clients often come from backgrounds in which adults frequently let them down and fail to follow-through on promises. Set yourself apart, and show your client he can rely on you. For example, tell your client you will call him every week on a certain day at a certain time to check-in, and do it. And be careful to avoid making promises that you cannot keep.
Using the tips above will help build rapport and establish trust – prerequisites to successfully counseling the child client. Children involved in any court system are regularly called upon to make difficult and sometimes life-altering decisions. Taking the time to build rapport and establish trust will enhance your ability to counsel your young client through these difficult times and ultimately lead to better decision-making and outcomes for your client.
Dr. Maisley Paxton is a child and adolescent psychologist at the Walter Reed Army Medical Center in Washington, DC.
Lauren Girard Adams, Esq., is an independent legal services consultant in Norwich, VT, and the Co-Chair of the Children’s Rights Litigation Committee of the Section of Litigation of the American Bar Association.
Stay tuned: Part 2 of this article, in next month’s CLP, will share counseling strategies and tips for addressing common barriers.
This article was adapted with permission from Counseling Children and Youth in Times of Crisis: Tips to Achieve Success and Avoid Pitfalls, a guide produced by the Children’s Rights Litigation Committee of the ABA Section of Litigation. View the complete guide.
[i] “Child” is used in this article to describe anyone under age 18.
[ii] Nikolaenko, N.N. “Sex Differences and Activity of the Left and Right Brain Hemispheres.” Journal of Evolutionary Biology and Physiology 41(6), 2005; Sax, L. Why Gender Matters. : Broadway Books, 2006.
[iii] Abram, K.M. et al. “Posttraumatic Stress Disorder and Trauma in Youth in Juvenile Detention.” Archives of General Psychiatry 61(4), 2004, 403-410; Arroyo, W. “PTSD in Children and Adolescents in the Juvenile Justice System.” In S. Eth (Ed.), PTSD in Children and Adolescents. , : American Psychiatric Publishing 20, 2001, 59-86; , A.F. et al. “Prevalance of Psychiatric Disorders in Youths Across Five Sectors of Care.” Journal of the American Academy of Child & Adolescent Psychiatry 40(4), 2001, 409-418; Igelman, R. S. et al. “Best Practices for Serving Traumatized Children and Families.” Juvenile and Family Court Journal 59(4), 2008, 35-47.
[iv] of Child and Adolescent Psychiatry. Facts for Families: Posttraumatic Stress Disorder, No. 70, 1999, 1-2.
[v] Cicchetti, D. and S. L. Toth. “Child Maltreatment.” Annual Review of Clinical Psychology 1, 2005, 409-438.
[vi] Cicchetti, D. and W.J. Curtis. “An Event-Related Potential Study of the Processing of Affective Facial Expressions in Young Children Who Experienced Maltreatment in the First Year of Life.” Development and Psychopathology 17, 2005, 641-677.
[vii] Bonnie, R. “The Competence of Criminal Defendants: A Theoretical Reformulation.” Behavioral Sciences and the Law 10, 1992, 291-316.
[viii] Grisso, Thomas et al. “Juveniles’ Competence to Stand Trial: A Comparison of Adolescents’ and Adults’ Capacities as Trial Defendants.” Law and Human Behavior 27(4), 2003, 333-363.
[ix] “[G]ood decision[-]making [by the child client] is predicated on the lawyer’s ability to create an appropriate environmental context for counseling and to develop a good relationship with the client.” Henning, Kristin. “Loyalty, Paternalism, and Rights: Client Counseling Theory and the Role of the Child’s Counsel in Delinquency Cases.” Notre Dame Law Review 81(1), 2005, 245, 317-318.
[x] A. Counseling Children & Adolescents, 3d ed. : Love Publishing, 2004.
[xi] Korkman, J. et al. “Failing to Keep it Simple: Language Use in Child Sexual Abuse Interviews with 3-8-Year-Old Children.” Psychology, Crime & Law 14(1), 2008, 41-60.
[xii] Walker A.G. and A.R. Warren. “The Language of the Child Abuse Interview: Asking the Questions, Understanding the Answers.” In T. Nay (Ed.), True and False Allegations of Child Abuse: Assessment and Case Management. : Brunner/Mazel, 1995, 153-162.
[xiv] American Bar Association Section of Litigation, Children’s Rights Litigation Committee. Interviewing the Child Client (video excerpt of interview with Mary Ann Scali), 2008. <http://apps.americanbar.org/litigation/committees/childrights/video/1006-interviewing-child-client.html.>
[xv] For more information about the funnel technique, see Binder, David A. et al. Lawyers as Counselors: A Client-Centered Approach, 2d ed. West Publishing Co., 2004.
[xvi] “Because youth tend to have a higher level of trust and satisfaction with attorneys who spend more time working with them, the child is more likely to receive and accept input from the collaborative lawyer. The child will also be able to avoid hasty, short-sighted decisions when he has the assistance of a lawyer who will patiently help him identify and consider all of the long-term implications of any given decision. When provided with all of the relevant information and given all of the appropriate environmental and emotional supports, a child may make well reasoned decisions and appropriately direct his counsel in the course of the representation.” Henning, 2005.