Watson, Ngaire --- "Vicarious trauma: A day in the life of a lawyer" [2020] PrecedentAULA 55; (2020) 160 Precedent 14

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VICARIOUS TRUAMA

A DAY IN THE LIFE OF A LAWYER

By Ngaire Watson

Vicarious trauma in the legal profession has gained recognition in recent years.^[1] The purpose of this article is to look into some of the forces that lead to that trauma. To do this, I draw upon my background and training as a registered nurse and psychoanalyst.

What do death, relationship breakdown, sexual abuse, domestic violence, a serious adverse medical event, financial problems, a criminal charge, employment problems, a car or work accident, seeking asylum and reputational damage have in common? They can all lead to seeking advice from a lawyer, and with each individual comes their story and the associated stress and trauma.

It may be apparent at the outset that certain clients are traumatised, such as people seeking asylum or victims of crime. However, all clients have the potential to bring trauma with them when they seek legal advice. Very few people go to a lawyer unless it is unavoidable. Clients may come reluctantly, full of hesitation and uncertainty, following a difficult set of circumstances. They may be angry and bitter about the very need to seek legal advice.

The motivations of clients can be an insight into what may follow in the course of working with them. It is understandable why some people seek to exact punishment on another party. Subjectively, it is not uncommon for plaintiffs to feel that they have taken on a David and Goliath exercise against a defendant with significant resources. Some plaintiffs may experience disappointment with the legal system, and the lawyers who try to assist them, because the law cannot offer the retribution they seek. In addition, the lengthy time periods involved in resolving matters can add insult to injury for a plaintiff. The plaintiff has stepped onto a travellator, the speed and direction over which they have limited control as it moves them towards their destination. The stress of litigation can exacerbate the plaintiff’s distress. The client’s trauma can be an accumulation of complicated feelings and emotions (often negative) looking for a release somewhere, on someone.

The lawyer not only has to bear witness to the trauma but is commonly the recipient of the tsunami of feelings and emotions coming from the client. Most of us will be familiar with lawyer stereotypes and will have encountered ‘lawyer jokes’. Such jokes inevitably contain a grain of truth but also a barb. For example, the lawyer trope, like that seen in the television series Suits, is pervasive:

‘Suits is a portrayal we are familiar with. Culturally, lawyers are often represented as workaholics and perfectionists, embodying qualities such as meticulous attention to detail, unemotional rationality, and an imperviousness to the distress of others. And so, as a society, we often don’t think about how legal professionals might be affected by the work that they do.’^[2]

It is safe to assume that many of our clients have preconceived ideas about lawyers before they walk in the door. This is not inherently bad but becomes a factor for us to consider as we manage our own experiences and feelings. The repeated process of witnessing trauma inevitably changes, and places stress on, the person witnessing it, even if they think they are impervious. People under stress may themselves develop maladaptive ways of coping and relating with others. According to the Black Dog Institute:

• 33 per cent of lawyers and 20 per cent^[3] of barristers suffer disability and distress due to depression. They often do not seek help and self-medicate with alcohol;

• Alcohol abuse in the legal profession is extremely concerning;

• There are high rates of suicide and suicidal ideation among lawyers;

• Law students and young lawyers are the most vulnerable; and

• In 80 per cent of disciplinary matters involving lawyers, those lawyers have an underlying mental health issue.^[4]

WHAT IS STRESS AND TRAUMA?

Stress is a multi-faceted, multi-factorial process. Many personal injury lawyers are familiar with the DSM-5^[5] diagnosis of post-traumatic stress disorder (PTSD) because we have seen its effect on clients and have read psychiatric reports on this disorder. PTSD is at the severe end of the trauma spectrum and can be very disabling for the affected person. Even trauma levels that do not amount to PTSD can be troubling. It is known that the accumulation of trauma and stress affects the brain:

‘Brain areas implicated in the stress response include the amygdala, hippocampus and prefrontal cortex. Traumatic stress can be associated with lasting changes in these brain areas. Traumatic stress is associated with increased cortisol and norepinephrine responses to subsequent stressors.’^[6]

The body’s response to stress is physiological and a person cannot turn it off by sheer force of willpower. Any stimulus that evokes a biological response is known as stress. The effect of stress can have implications for all bodily systems: the brain; endocrine system; gastrointestinal system; digestive system; and immune system. Not all stress is bad – for example, the physiological response to stress can allow a person to jump out of the path of an oncoming car. However, when the stress is unrecognised, chronic and unmanaged, it can lead to trauma.

While lawyers may not regard themselves as working in conditions such as those found in a hospital, there are some parallels due to the nature of our clients’ problems when they seek legal help. This quote refers to health workers’ responses but potentially also applies to lawyers:

‘Engaging in an empathic relationship with a client and understanding trauma from the client’s person-in-environment point of view is an essential part of a clinician’s skill-set and therapeutic rapport. This necessitates the clinician being open to the subjective disclosures of the client, suspending personal values and judgments, and adopting the client’s worldview. Additionally, it entails comprehending what the traumatic events mean intrinsically to the client and corresponding dysfunction(s). This level of therapeutic intimacy creates a vulnerability for the clinician to be “infected” with the cognitive and affective aspects of the client’s trauma.’^[7]

RETRIBUTION AND PUNISHMENT

Many plaintiff lawyers have had conversations with clients where they have explained that the civil legal process is not designed to punish the opposing party and that any amount of compensation they might receive is not a direct measure of their distress, loss and suffering. However, it is comprehensible why a client may feel that justice is only achieved when their compensation is subjectively adequate. The client’s emotions may include rage, anger, betrayal and grief. These emotions do not simply go away; they look for an outlet.

Projection

Projection is a powerful psychological mechanism that, for the most part, operates outside a person’s conscious awareness. The theory was postulated by Freud and has been widely accepted by different theorists since. When projection occurs, coping with psychological conflict caused by undesired impulses involves attributing (projecting) these same impulses to someone else. In this process, there is no conscious awareness that the impulses in question have their origin in one’s self nor that in projecting them the person is trying to cope with their own internal conflict. Examples of negative projection include victim-blaming, bullying and projections of guilt. An example of a positive projection can be hope; a client could project hope onto their lawyer, associated with the expectation that the lawyer will help them. However, if the client’s matter encounters challenges, the projected hope could change to a negative emotion towards the lawyer, even if the lawyer has done nothing wrong.

Traumatised people and people with pre-existing psychological issues may be predisposed to projection. Given the nature of our clients’ problems, it is safe to assume that there will be occasions when we are the recipients of projections. This may lead to confusion as to where the client’s sudden disappointment or anger is coming from.

Vignette 1

Over the course of the preparation of the complex civil case, Client Z was friendly and chatty to staff and collected tidbits of personal information from the people he spoke to in passing. Over time, the client collected these small and innocuous pieces of information. When the outcome of his case did not satisfy his unrealistic expectations, he used this information and turned it into a personal attack. A junior lawyer at the firm was particularly affected, leaving them hurt and confused and causing them to question their career choice.

Client Z was a very distressed person who had admitted in the course of the case that he felt guilt associated with the set of circumstances that had brought him to see the lawyer. That guilt in itself was misplaced because the case investigation had clearly demonstrated that other parties were responsible for the problems. He was blameless but nonetheless carried the guilt. He also carried rage towards those who were responsible and wanted to extract a sum of money from the defendant commensurate with his feelings. When the case was over and he had officially ‘won’, he was unable to accept the outcome and redirected the rage he felt towards the defendant to his lawyers. It was evident that he was unable to process his psychologically toxic burden. Client Z projected his unacknowledged and unwanted toxic feelings onto his lawyers.

The lawyers were left in a quandary as to what they had done wrong. They went from confusion to feeling hurt and angry; their genuine desire to help this client had been thrown back in their faces. Following this encounter, each time a new client demonstrated similar features to Client Z, the lawyers reflected on Client Z and how he had evoked a new wariness in them. Client Z had left a legacy of unease and apprehension. The lawyers had experienced a trauma.

The incident as described above is unsettling as a one-off event. The situation can become more problematic over time if this is repeated and lawyers are not aware of the mechanism that drives such inexplicable behaviour. Junior lawyers may be more vulnerable as they are still developing their skills and have fewer professional experiences to draw upon.

HIGH RISK LEGAL WORK

A European study looked at 70 legal professionals working in the field of asylum law in the United Kingdom.^[8] The researchers distinguished secondary (or indirect) trauma from vicarious trauma. Secondary (or indirect) trauma was described as when the service-provider related to someone who had undergone a traumatic event to the extent that they began to experience symptoms of PTSD similar to those of the trauma. The onset of these symptoms can be sudden. Whereas vicarious trauma was conceptualised as an accumulation of exposure to the pain of others over time, with the onset of symptoms being gradual. However, while both groups of lawyers developed similar symptoms, the study focused on vicarious trauma. Disturbingly, 51.4 per cent of the asylum lawyers met a number of the criteria for PTSD. Significant scores were also seen in the areas of depression and anxiety.

Australian researchers^[9] have examined the work of people employed in the coronial jurisdiction. They concluded that legal personnel working in this environment are likely to suffer distress via ‘secondary traumatisation’ and that a significant aspect of the resilience to distress is derived from the support of their intimate and affective relationships.

Refugee advocacy is clearly a particularly challenging area of law. An Australian study examining professionals assisting refugees found that these lawyers reported higher stress levels than carers such as AIDS workers and physicians.^[10]

I spoke with senior solicitor Anna Talbot of the National Justice Project (NJP). The NJP is a human rights organisation that provides legal assistance to vulnerable communities such as refugees in Australia and off-shore, First Nations peoples and those seeking coronial inquests. Anna has also previously worked with survivors of historical child abuse, survivors of torture and sexual violence and in an international human rights organisation. Anna commented that trauma can ‘infect’ a workplace where the work is predominantly with severely traumatised clients. She said that measures to support staff such as group sessions with a psychologist, gym memberships, individual counselling sessions and social events can be beneficial; organisations can be creative in what they offer once the need to care for staff is recognised. Anna said that when working with such traumatised people it takes time to recover from work at the end of the day as it is necessary to process what you’ve been through as a lawyer, as well as what each client has been through and suffered.

Vignette 2

Several years ago, during a conversation with a colleague who is a barrister practising criminal law, the barrister reflected on video footage they had been required to view for a client they were representing. The barrister referred to the client as being charged as a ‘kiddie fiddler’ and being a ‘rock spider’. It was apparent that the footage they needed to view was graphic and very disturbing but it was the barrister’s job to defend the client. The barrister commented that sometimes they are required to hear and see things that are best described as ‘putrid’. Barristers who defend people accused of sex crimes have uniquely difficult work. The barrister described their genuine wish to get the best legal outcome for each client while being confronted with the potentially disturbing behaviour of the person they are helping.

The barrister further reflected on the stresses of their work and the coping strategies that are sometimes used. For example, lawyers and barristers often use black humour to manage the magnitude of the human trauma they witness. Jokes usually contain a barb and that’s what makes them funny, as we take some small perverse delight in the suffering of others. Alcohol is commonly used to unwind after a difficult day. Some may call on the use of drugs, particularly those that give the user a feeling of energy and sharpness (no matter how short-lived that might be) in dealing with their stressful work.

The bench is not immune to the use of black humour and some advocate for the use of humour in the legal process.^[11] Lawyers love playing with words; it’s our stock and trade. While it is understandable that humour might be used to diffuse a situation, it should be remembered that a joke usually contains a subtle barb, at the cost of someone else, as evidenced by the joke quoted in the following article:

‘In 2015, the Western Australian Supreme Court considered a statutory claim by a 19-year old-woman for financial provision from her deceased father’s estate. In considering the daughter’s likely future needs, and the difficulty of evaluating them, Master Sanderson remarked:

“The plaintiff did say she had a boyfriend whom she hoped to marry within the next two years. She anticipated having four children. Of course, it is possible after one child she might reconsider; most sensible people do.”^[12]

I once witnessed a barrister laughing uproariously about their success in breaking down a witness into a quivering wreck under cross-examination as she gave evidence about her alleged sexual assault. I couldn’t help but wonder what psychological mechanism the barrister was drawing on to be able to do this, and what the effect over time was likely to be.

EVERYDAY LAWYERING

Not all lawyers work in areas of law that would typically be assigned a red flag for high risk. As described above, trauma and suffering are part of the human condition. It is probably safe to say that most lawyers will not develop a psychiatric disorder as a result of their work. However, there are gradations of trauma. The nursing literature^[13] compares compassion fatigue and burnout. Compassion fatigue is seen as having a sudden onset while burnout develops over time. Compassion fatigue is described as arising in an environment where the service-provider needs to hide their emotions from clients. This can lead to anxiety, errors in judgement, difficulty sleeping, and physical and emotional exhaustion. Burnout is described as being caused by factors such as having a goal-oriented mindset, excessive workload and a negative work environment – not an unfamiliar experience for some lawyers.

CONCLUSION

A recent refrain in 2020 is that ‘we’re all in it together’. This is as true of the effect of COVID-19 as it is of the human experience more broadly. As lawyers, becoming more aware of the unique challenges that come with our work enables us to be better at addressing them. The key lies in the recognition of stress and trauma and its origins.

Cultural change is slow and sometimes resistance is met; however, we are becoming more aware of the effects of psychological trauma – in our clients and in ourselves. State and territory bar associations and law societies have resources that can assist with referrals.

Ngaire Watson is a barrister and registered nurse who specialises in medical negligence litigation. Before studying law, she worked in acute care medical and surgical hospital settings before undertaking post-graduate training and working as a mental health nurse and then as a psychoanalyst. EMAIL [e-mail] WEBSITE www.2selborne.com.au.

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^[1] A Dale, ‘Taking on the trauma’, Law Society Journal, Issue 56, June 2019; K Nomchong, ‘Vicarious trauma in the legal profession’, Bar News: The Journal of the NSW Bar Association, Summer 2017.

^[2] N Graffin, E Jones, M Lucassen and R Samra, ‘The legal profession has a mental health problem – which is an issue for everyone’, The Conversation, 18 April 2019, <https://theconversation.com/the-legal-profession-has-a-mental-health-problem-which-is-an-issue-for-everyone-113224>.

^[3] This statistic is possibly too optimistic.

^[4] The Black Dog Institute, ‘Resilience@Law – Legal profession mental health toolkit’ (2016) <http://www.blackdoginstitute.org.au/wp-content/uploads/2020/04/[e-mail]?sfvrsn=2 & sfvrsn=2> .

^[5] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 5th ed, 2013.

^[6] JD Bremnet, ‘Traumatic stress: Effects on the brain’, Dialogues in Clinical Neuroscience, Vol. 8, No. 4, Dec 2006, 445–61.

^[7] DC Branson, ‘Vicarious trauma, themes in research, and terminology: A review of literature’, Traumatology, Vol. 25, No. 1, 2019, 2–10.

^[8] L Rønning, J Blumberg and J Dammeyer, ‘Vicarious traumatisation in lawyers working with traumatised asylum seekers: A pilot study’, Psychiatry, Psychology and Law, April 2020.

^[9] M Trabsky and P Baron, ‘Negotiating grief and trauma in the coronial jurisdiction’, Journal of Law and Medicine, Vol. 23, No. 3, 2016, 582–94.

^[10] N Surawski et al, ‘Resisting refugee policy: Stress and coping of refugee advocates’, The Australian Community Psychologist, Vol. 20, No. 2, Dec 2008.

^[11] J Oakley and B Opeskin, ‘Banter from the bench: The use of humour in the exercise of judicial functions’, Australian Bar Review, Vol. 42, 2016.

^[12] Mead v Lemon [2015] WASC 71 (26 February 2015), [45].

^[13] JA Henson, ‘Burnout or compassion fatigue: A comparison of concepts’, MedSurg Nursing, Vol. 29, No. 2, 2020.