Trauma and the medical negligence lawyer: looking beyond the legal process

‘Trauma’ – we hear the word often, but what does it mean? What does it mean to my clients? And what does it mean to me?

The word trauma is generally used to describe experiences or situations that are emotionally painful and distressing, and that overwhelm people’s ability to cope, leaving them feeling powerless. It has sometimes been applied to circumstances that are outside the realm of ‘normal’ human experience, as well as to those that induce an ‘inner injury or lasting rupture’:

‘When we experience something as ‘traumatic’, it shatters our sense of safety and trust in the world around us and leaves us searching for answers; everything we thought we knew has changed.’ (Dr van de Kolk, The Body Keeps the Score)

Attending a recent workshop with the insightful Dr Nicola Lester, psychological trauma consultant, this sentence really resonated with me, on a personal and professional level.

Having been through the traumatic bereavement of two close relatives, I have felt the moment when everything shifts in an instant – the proverbial rug being pulled from under your feet, with the knowledge that life will never quite be how it was before. Once you confront that fragility, there is no ‘unknowing’ it. A phone call, a knock on the door, and life is changed, forever.

Living with that experience, as well as watching my clients navigate their own trauma (often described as ‘vicarious trauma’ in a professional context), I have come to recognise and respect how much this shapes our lives. After you have experienced what it’s like to have your life changed irrevocably by a moment’s event, or a course of events, the knowledge of that alters how you see relationships, risks and everyday life.

In my professional world, trauma and traumatic bereavement are the substance of our working day. By its very nature, medical negligence and catastrophic personal injury litigation has traumatised and injured people at its centre. Not a working day goes by without exposure to either sensitive information, subject matter that is potentially distressing, or contact with clients and families who have experienced physical injury, psychological harm or bereavement.

It is also important to acknowledge that, on the other side, defendant lawyers will be navigating the same sensitive material and often dealing with clinicians who are struggling with their own trauma of having litigation that is directed towards them, their experience of the events themselves, and the knowledge that harm (or alleged harm) has been caused by their actions. I don’t doubt for a moment that in many instances, trauma exists on both sides of the fence.

So, what do we do with this harsh reality that during every day of our working lives, we are navigating trauma and dealing with traumatised individuals? For the vast majority of lawyers in the medical negligence and personal injury field, we have chosen this area because we care about people. Individual human experience is at the heart of what we do, and most of us will carry a sense that we are trying to ‘make a difference’ and to guide our clients through a painful experience with as much kindness and clarity as possible. But while we are often drawn to this area of litigation because of a desire to help and support, are we trained to do so? Should we be? And can we be?

In recent months, I have embarked on my own journey of reflection on the subject of trauma and what it means to be ‘trauma-informed’ in legal practice. I am not a therapist or counsellor. I am not claiming to have all the answers, nor am I saying that I always ‘get it right’ with my clients as I attempt to navigate their pain within the complex world of litigation. But what I can say, after almost 17 years practising in this field, is that I recognise that becoming more ‘trauma-informed’ is essential, and that this is an area in which we should constantly seek to learn and improve. As individuals and as organisations, we need to be consciously seeking ways to integrate a trauma-informed approach into our work.

When we conduct litigation involving traumatised clients, we must recognise that the actual process of bringing a claim can retraumatise – every letter we send to our clients, every statement we draft, every email we write, every call we make has the potential to revisit the trauma and put them back in that space. We have a responsibility to learn how to do that in a way that is respectful and mindful of the impact.

Through my training and experience, I have learned that trauma and traumatic bereavement may present themselves in the following ways:

• high levels of anxiety, fear and confusion;
• hyper-vigilance and dysregulation;
• low mood, suicidal ideation and deliberate self-harm;
• poor motivation, exhaustion and low energy;
• re-experiencing of the trauma (intrusive thoughts, flashbacks, nightmares);
• self-neglect;
• avoidance strategies;
• social isolation;
• fragmented families;
• ruptures in relationships.

But what does trauma-informed litigation actually mean in practice? How does one become trauma-informed? This is a complex subject matter that can and does form the basis of lengthy training courses, masters degrees and PhDs. While I cannot attempt to summarise it fully here, what I can offer are my own reflections at this stage of my learning.

Being trauma-informed is about consciously recognising that many of the people we work with are living with trauma, and that our interactions may affect them in ways we do not always see. It is about striving to be ‘human’ in your everyday dealings, at the same time as being a competent lawyer, trying as far as possible to minimise further harm and to contribute positively to a client’s experience.

One key principle is the importance of choice – in a situation where the traumatised client may feel a sense that they have no power or choice in what is happening, to offer options wherever we can. Being honest about the reality of litigation – the fact that we will have to discuss painful subjects with them, or ask them to read and approve material that will put them in a distressing space, and seeking their choice as to how and when they would like that communication to happen. Revisiting these preferences over time can help create a sense of safety and trust.

Creating that sense of safety requires honesty and clarity, seeking to understand what someone needs, approaching them with compassion and kindness, as well as humanity and personalisation. Yes, I am a professional, who has been chosen to represent my clients and achieve results for them, but I can do so as a human, recognising the individuality of each of my clients, taking account of and responding to their differences, staying curious about what they need (and not making assumptions), seeking to understand and practising humility.

Many of the lawyers in our field already operate in this way instinctively – it’s part of what draws us to this work. However, by meaningfully turning our mind to a trauma-informed approach, we can only improve, as individuals and as an organisation. And for those who might say ‘I am great at this already’ or ‘we do this naturally’, I would suggest that none of us is perfect, all of us have the capacity to grow and improve, and that society’s understanding of the impacts of trauma on individuals is constantly evolving and developing. We should actively seek to learn from our clients, and each other, how we might be able to ‘do it better next time’.

I am continuing my journey to deepen my understanding of trauma-informed legal practice, and its particular relevance to my work involving inquests and traumatic bereavement. Whilst this area of litigation can undoubtedly be challenging, it is also immensely rewarding. The human relationships that I have built with clients over the years are what ground and motivate me in what I do – ultimately, it’s a privilege:

‘We bear witness, not just to grief and pain, but also to love, the power of human connection and the ways in which it transcends all life; and this is a heart-breaking privilege.’ (Dr Nicola Lester, writing for Brake, the road safety charity)