The Trauma-Informed Lawyer

The Harm We Allow: A Call to Action from the Court to Become Trauma-Informed

Episode Summary

In this episode, we reflect upon the messages of Justice Band of the ONCJ and (retired) Justice Langston of the ABQB and their acknowledgement of the traumas we unnecessarily or deliberately perpetuate in the court room and their call to action, to find a better way, to become trauma-informed.

Episode Notes

This episode delivers a call to action from the courts to find a better way forward, to become trauma informed for the benefit of judges, counsel, court clerks, court officers and victim support staff. 

Episode Transcription

Episode 10: “The Harm We Allow: A Call to Action from the Court to Become Trauma-Informed” Published: September 3, 2020

Myrna McCallum: I’m Myrna McCallum, Métis-Cree lawyer and passionate promoter of trauma-informed lawyering. Welcome to my new podcast, The Trauma-Informed Lawyer, brought to you in partnership with the Canadian Bar Association. 

I believe that law schools and bar courses are missing a critical competency requirement in their curriculum: trauma-informed lawyering. Becoming a trauma-informed lawyer will, among other things, challenge you to critically reflect on your personal behaviors, beliefs, and biases; call on you to positively transform the way you approach advocacy; guide your practice to avoid doing further harm to others; and ask that you commit remaining open to learn new and old knowledge you didn't know you needed before beginning your career. Your education starts right here, right now. This podcast comes to you from the traditional, unceded territories of the Sḵwx̱wú7mesh [Squamish], səl̓ilwətaɁɬ [Tsleil-Waututh], and xʷməθkʷəy̓əm [Musqueam] people. 

Welcome back to the Trauma Informed Lawyer podcast. Before we get into today's episode, I'd like to remind you that the CLEBC is offering a course on trauma informed lawyering taught by yours truly. It will be delivered over Zoom so you can access it from wherever you are. You need not be in British Columbia or even Canada. It's a course open to everyone, everywhere, including non-lawyers. The content will be relevant to you as an advocate, supporter, educator, adjudicator, administrator, policy-maker, or officer. The course runs over two mornings on October 8th and 9th, and you can register at CLEBC.CA click on “Store” and then “Courses” and you will find “Trauma Informed Lawyering”. 

Just a reminder for Season 2, I intend to provide a limited number of advertising spots on the Trauma Informed Lawyer podcast, so if you're interested, get in touch. Okay, so in episode 8 I discussed vicarious trauma, and I shared a personal experience with you. I said this topic gets a lot of interest because I feel it's a subject area that's deeply personal for many and the impacts are extensive. They’re far-reaching. Whenever I show up and I say, “Hey, let's talk about vicarious trauma”, people are like, “Yes please, let's talk about it”, so that tells me we need to talk about it and so for that reason, I had said I'd split the subject area up into three parts—well I'm going to make it four, and this is part three. 

Episode 9 discussed vicarious trauma in a specific sense as experienced by Indigenous Crown prosecutor Harold Johnson. He offered some great advice when he said to future criminal lawyers, “Don't look at the pictures”. He noted that many older Crown and defense lawyers didn't smile much, and their humor was dark. He believes this is due to their long-term exposure to traumatic and graphic evidence. My conversation with Harold got me thinking about how we as lawyers and judges routinely expose ourselves to traumatizing information without giving it a second thought. Why? 'Cause them's the rules, right? Them's the rules. Well maybe those rules need to change.

Today's episode, still on the stream of occurs, will offer some thoughts, ideas, and experiences about how we put ourselves at risk for vicarious trauma, and how we maybe caused trauma in other people, and how maybe it's time we find a different way forward. Let me give you a reminder about what trauma is and I'm literally taking a page out of Harold’s book Peace and Good Order: The Case for Indigenous Justice in Canada where he quotes Bessel van der Kolk, who's a world-renowned psychologist; 

To people who are reliving a trauma, nothing makes sense; they are trapped in a life-or-death situation, a state of paralyzing fear or blind rage. Mind and body are constantly aroused, as if they are in imminent danger. They startle in response to the slightest noises and are frustrated by small irritations. Their sleep is chronically disturbed, and food often loses its sensual pleasures. This in turn can trigger desperate attempts to shut out those feelings or shut them down by freezing and dissociating. 

That's trauma, right, and think about the people in your life who show up that way. In your personal life, in your professional life, it could be a colleague, it could be a witness, it could be a client, it could be you. The definition I just gave you is really how trauma can affect the brain—well, it can affect your brain in a similar way as somebody who is hearing about a traumatic experience or seeing images of a traumatic event. The brain also can emit in you a fear response, releasing excessive cortisol and adrenaline that can increase your heart rate, your blood pressure, your respiration, and bring on a flood of emotions. It can manifest in all kinds of mental and physical symptoms, and I don't think anyone ever prepares us for that possibility or likelihood—at least, I know I wasn't prepared. Not at law school, not in my articles, not at PLTC (Professional Legal Training Course) in British Columbia where I did my bar course, and I think it's something we need to talk about.

So who is at risk for vicarious trauma? I mean, keep in mind for a second that I'm just a lawyer, I am not a psychologist, but this is what I've identified for myself and for those who have worked around me. I would say if you have a personal history of unresolved or unhealed traumas, that increases your risk for becoming affected by the traumas of others and these traumas can be anything— it could be a motor vehicle accident, it could be abuse, it could be intimate partner violence, it could be childhood neglect, it could be your parents got a horrible divorce and you were caught up in their custody battle and it was traumatizing, it could be bankruptcy, could be the death of a loved one, it could be anything. If you haven't dealt with that, let that go, your risk increases. And it gets even worse if you are in a job where you are repeatedly exposed to traumatizing information or people who are highly, highly traumatized and they show up in that way on a regular basis. 

What makes it even worse is if you work in an organization where there's no recognition for vicarious trauma, like not in any meaningful way. I mean, it's not enough to say, “Oh, we have an employee assistance program. You can go there if ever you need help”. It's not enough to say, “Well, we get training once a year and one component of it is ‘talk about vicarious trauma’”. It's not enough, like, you need to actually practice what you preach. Build strategies within your organization to reflect vicarious trauma and the risks of it for your employees, and you need to practice it, like, if not on a daily basis and a weekly basis, to make time for your mental health and that should be incorporated into your work week. That is what I believe we need to be able to talk about it. I think reflecting the risks of vicarious trauma within our organizations is one way that we start to cut through the stigmas associated with mental health issues. 

Now that I've reminded you about what trauma is, and vicarious trauma, and who I think is at risk in our profession, how do we contribute to harming or allowing for trauma to develop in other people? I have identified a few ways that we do this. One—repeated exposure to graphic and disturbing evidence. Ultimately, we become desensitized to that. Why? Because I think it's probably a natural response. It's like, anyone who grew up in a violent home, you tend to expect violence, and you find a way to build a shell around you, and hold your breath and get through it. I think we do the same thing when we're bombarded with a lot of traumatic or graphic information and stories, and what can happen if we're not addressing that stuff is we just become so desensitized, like, it becomes nothing for us to throw around autopsy photos, or talk about a very violent sexual assault like we're ordering coffee and a bagel.

So in my little bit of research on this subject, I've discovered a couple judges who’ve become my heroes and I'm hoping that one day I get to add to that list, but for now, one of my heroes is Justice Band of the Ontario Court of Justice. Justice Band has given us a couple of, I would say, little gifts. I'm going to share with you the words of Justice Band which, in my view, all need to be spoken and they need to be shared. Taking from his Reasons for Sentence in R. v. Shaw, 2018 ONCJ 61 Justice Band says;

In my experience in the criminal courts, child pornography involves kind of traumatizing imagery that can affect even those of us who believe we are so-called “thick-skinned”, or that we have “seen it all”. The effects can be serious and lasting. They can, in combination with others, have serious impacts on our mental and physical health and on our relationships. In our profession, and others, direct and vicarious trauma are topics that are rightly becoming the topic of study and discussion. This discussion must continue.  In R. v. Marratt, 2019 ONCJ 618, Justice Band goes on to talk about this a little bit more and it's a little lengthy, but just bear with me—it's important to share this message. He says;

Science shows, and it stands to reason, that frequent and repeated trauma can lead to more serious and lasting impacts on our mental health. This can include decreased productivity, work-avoidant behavior, work absence, interpersonal problems, relationship difficulties, depression and substance abuse, among others. 

Recently, there has been a considerable focus on the mental health of jurors after particularly difficult trials. This has led to free support and counseling services being offered through the Minister of the Attorney General—and rightly so. However, every such case also requires the participation of some or all of the following people: court staff, court officers, victim witness workers, counsel, and judges. 

Take that in for a second— what he is saying is support and counseling services should be available to these groups of people when you're going through a difficult trial or hearing. He's acknowledging the harms of risk and the trauma that can come to these people just by virtue of being exposed to all of this evidence. So Band goes on to say that, “In light of recent changes to the Criminal Code, it is reasonable to expect a significant increase in our over-all case-load, including cases of sexual offences involving children. “For these reasons,” he states, “I believe that it is my responsibility and that of my colleagues to take an active and leading role in this discussion rather than to sit by and passively leave the door open for harmful evidence that is either unnecessary or presentable in an attenuated form”.

Right? Like, take that in for a second. He's saying, “This is the way we've always done it, but I don't think this is the way we should do it anymore.” It's unnecessary in this particular case—he said that he had really great council and they were able to admit evidence by way of an agreed statement of facts, of a representative summary, and by way of a CD-ROM containing all the material. Nonetheless, as the Crown was reading the description, a member of the court staff began to weep and he said, “I believe that, as members of the judiciary, we should also encourage and participate in continued research in this field should such opportunities arise. By taking the lead in this area, we can hope to develop a trauma informed approach, not only to procedure, but also quite possibly to the rules of evidence”. 

If you could see me now, I'm doing the whole “Whew, that blew my mind”. I want to hear more judges say that. I want to hear more judges come forward and publicly acknowledged that some of the work they do put them in harm’s way and more needs to be done to protect their mental health. And so, right now he's talking from a judge’s perspective, but he's also up there going, “Hey, I am trying to protect my court staff. I'm trying to protect the victims support people. I'm trying to protect the court officers. He's kind of there as this protector going “Wait a second, wait a second, they didn't sign up for all this and there is harm that is coming to them and we need to do more”. Now, if any of you know of any judges making the same remarks in court, let me know about it. Thank you, Justice Band. 

Another way that we bring trauma to others, I would say, is through racism and discrimination— those things create trauma. I mean, one example is seen in a documentary called “But I Was Wearing a Suit”. It highlights the racist experiences of Indigenous lawyers and law students. I have yet to meet an Indigenous lawyer who was not, at one point or another, mistaken for an accused person when they walked into the courtroom, myself included. There's harm that comes from racism, there's trauma that comes from that, and we need to be alive to it, and I think that is something my second hero Justice Langston was trying to acknowledge when he was sentencing Barbara Holmes in R. v. Holmes, 2018 ABQB 916. He acknowledges, “This is an Aboriginal offender. She is in a system which is imposed upon Aboriginal people, and I use that word deliberately. Our history, in relation to Aboriginal people, is one of deliberate destruction. Aboriginal people are entitled to a sense of dignity when they come into our courts. I am bound by rules, but the rules that I apply are in the context of a system that has overrun Aboriginal people.” 

Okay, mind blown again, like whew – what?! How incredible it would be for every Indigenous person to walk into a court room and hear that acknowledgement, that the system they are in is being imposed upon them, to acknowledge that maybe dignity has been denied them, and that the rules that are being applied to them has really overrun them. That's why so many Indigenous people show up in court— lawyers included— highly skeptical, suspect, and have no credibility in a system that has served largely to imprison them or take from them. In any event, I digress. 

Racial trauma, or discriminatory distress, that kind of behavior can push lawyers out of the legal profession, and so what I'm saying to you is we all need to check our biases. If you think an Indigenous person coming into court is an accused, why do you make that assumption—that they are either an accused or a victim? Why not automatically think that person could be your colleague. And then if you feel emboldened to actually speak your bias, to say, “Oh-oh, you can't be over here. You have to go and sit in the gallery”. Why do you feel emboldened to say that— to speak your bias. Something to think about. 

There are all these little ways that we can create traumas in people, and so, we don't know if the words we’re saying can serve to push lawyers out of the profession because they feel messed up by how they are interpreting your word—because really, it translates into, “You're not good enough, you're not worthy, you couldn't possibly be a lawyer”. I had this experience in my very early days of adjudicating Indian Residential School claims when I was required to get a retainer agreement from this lawyer—that's one part of my job because I had to assess legal fees for reasonableness and fairness—and so, in order to do that, I had to get a retainer agreement from every lawyer, and this guy refused to give me one. He was like, “How dare you”, so keep in mind, he's an old guy, he's white, he's been practicing as long as I've been alive, and he just kept saying “How dare you, how dare you ask me that. Seasoned adjudicators know better than to ask me that”. Anyway, I persisted, and he made a huge spectacle of it while at the same time ignoring his client. She was in total distress and he was not paying attention to her. He left the room, I asked the psychologist who was present supporting his client to go and persuade him to come back so we could do this hearing, because I knew his client had really waited a long time to have her day, and he was taking it away from her. Anyway, they all left for a few minutes and came back in. When they did, he had this smug look on his face, and he threw some toilet paper at me. On the toilet paper was the retainer agreement that he had written and he had his client sign it, and it was clear to me that he didn't respect me, that he thought by doing that was going to put me in my place, and that he wanted to humiliate me. Would he have done that had I been a white woman? I don't think so. Would he have done that had I been a white man? Absolutely not. But that experience nearly pushed me out of the IAP (Independent Assessment Process) and honestly, almost out of the legal professional altogether. Let's think about how we communicate with our colleagues. 

Another way that we bring trauma to others is by engaging in practices that don't align with our values, like when we have to discredit the witness—a witness’s credibility in a sex assault case. I have this friend, he's a criminal defense lawyer, a really good one, and not that long ago he was saying to me, “I don't want to do it. I don't want to do it, but I do it”, and I'm thinking, like, what is the effect of that—doing something you don't want to do? You know it's not right, but you do it anyway. I always think there's a cost—there's a cost to be paid when we do something that doesn't align with your values. You know, repeatedly asking questions which have been answered, even though you know you should stop, refusing to acknowledge the harm your practices create after the fact, not pushing back on mentors who instruct you to engage in practice this way, and finally: silence. Ignoring the harm that we create or the harm that we've experienced, just not talking about it. Not talking about it allows for it to continue. Justice Band’s words, he cannot allow this to continue without saying something, he has to say something, and I thank him for it. More of us need to say, “No, things need to change. We cannot do things the way we have”.

What can we do? Look at the rules of evidence and procedure. We need to innovate, and evolve, and reflect humanity and vulnerability, and we need to bring some empathy into our processes.  We need to commit to creating a safe workplace. What is safety? It should include the right of employees to be free from psychological harm, right? Full stop. I don't think anyone signs up to say, “Yeah, traumatize me please”. So we have to really examine workplace safety. We need to receive training in trauma informed practice for lawyers, for judges, court clerks, police officers, everybody, and then create metrics which ensure that we put our training into practice. It's not enough to simply receive training—it's like going to a dietitian, getting a food plan, and then stopping at McDonald's on the way home, right? Like, how wack is that. We have to hold each other accountable, we need to create metrics and goals, and we need to get retrained, and we have to commit to it on a regular basis. We need to educate law students long before they become lawyers. Law school definitely does not prepare you for the trauma that you will be exposed to, particularly if you go into those high-risk areas of law like criminal, family, immigration. It just does not prepare you and it really needs to. And I haven't even talked about really the experiences of the jurors, or the litigants, or the public, or the family members of victims. I mean, we know already that many of our systems, folks don't have any faith in our processes or confidence. Why? Because they've seen our processes and our systems traumatize people, or they have been traumatized directly by the way we treated them in the courtroom. It's time for change. It's time to become trauma informed. It's time to commit to a new way of doing things.

I hope I got you thinking about where the risks lie for you and what you can do to minimize these risks. My next episode will introduce you to Doron Gold—he's a psychotherapist for lawyers and a former lawyer himself. We're going to discuss trauma, vicarious trauma, and he will focus a lot on resilience because our profession is that now more than ever. Our conversation will round out the subject of vicarious trauma. 

Thank you for listening, please subscribe, rate, and review my podcast if you're downloading it on Apple podcasts please. As always, if you have any questions or thoughts about today's episode, you can find me on LinkedIn, or on Twitter @LegalTrauma, or on Instagram @TheTraumaInformedLawyer. Until next time, take care everyone.