Lawyers: Gatekeepers For Psychological Issues
Lawyers often work with clients in emotional distress – tearful divorce clients, the personal bankruptcy client who feels like a failure, grieving probate clients and personal injury clients who are depressed and anxious. Understanding a little psychology can go a long way toward representing these clients more effectively. Read on to learn about the issues involved, interviewing and counselling techniques, how to protect yourself from the special risks posed by emotional clients, and more.
By Janice Mucalov, LL.B.
Emotions often cloud the thinking of distressed clients. These clients therefore present with particular issues, explains Dana Schindelka, a partner at Davis LLP in Calgary, who has represented clients who were sexually assaulted as children in residential schools. “One, do they have the capacity to provide valid instructions? And two, do they understand what’s going on? You have to spend a lot more time explaining the legal process to them.”
Suicide is a real concern. Several of Schindelka’s sexually abused clients committed suicide when he worked on their case. “With any major turnaround like a divorce, personal bankruptcy or dismissal from your job – where the person was fragile before the event – there’s a greater risk of suicide,” says Raymond David, a Montreal psychologist and expert court witness.
Hopelessness is a significant predictor of eventual suicide. If your client expresses extreme despair and pessimism about the future, urge them to see a professional counsellor. (Talking to a person about suicide doesn’t make them more likely to commit suicide.)
“Asking open-ended questions allows the client to tell their story in a way that makes sense to them. So even if they tell their story in a non-linear or non-chronological fashion, defer asking pointed questions until later.”
With family law clients, the intensity of loss that accompanies divorce is akin to a form of “temporary insanity,” observes John Wade, director of the Dispute Resolution Centre at Bond University’s faculty of law in Australia and a visiting professor at the UBC law school. As he explains, “divorce isn’t just the end of a marriage – it also means the loss of your hopes and dreams for yourself, for your family and for your children.”
“With personal injury clients, you see a lot of diagnoses of anxiety, adjustment disorder – dealing with a new picture of one’s self – and post-traumatic stress disorder – nightmares and depression,” says Charles Gluckstein. A partner at Gluckstein & Associates in Toronto, he represents seriously injured clients with paralysis, brain damage and other life-altering injuries.
Understanding your client’s emotional state will help you to communicate better with them and deal with their legal problems more effectively.
What is the Lawyer’s Role?
Your main role is to provide objective legal assistance. But when working with clients in emotional pain, compassion and empathy are essential too.
Note that empathy isn’t sympathy, says David. “Empathy is the ability to be aware of, to understand, and to appreciate the feelings of others.” It involves hearing what your client is saying at the intellectual and emotional level, and implies that you care about their situation.
Of necessity, you’ll probably end up playing “armchair psychologist” a fair amount, says John-Paul Boyd, a family lawyer with Aaron Gordon Daykin Nordlinger in Vancouver. “I try to get clients to reframe the issues so that they’re less daunting and the fear is taken out. But I never engage in therapeutic counselling. It’s more about getting the client to understand the legal issues, the process and how the law treats the issues.
Can you learn to be more empathetic with clients?
Raymond David, a Montreal psychologist who coaches lawyers on the use of emotional intelligence, suggests the following exercises:
1. If you find yourself mentally preparing or rehearsing your responses rather than listening, remind yourself that you don’t have to agree with your client – just hear what they have to say.
2. Practise real listening. Hear someone speak for five minutes, then paraphrase back what he or she said.
3. Aim to spend two-thirds of your time listening and one-third talking.
4. Focus on your client – make eye contact and notice body language and facial expressions. If your client verbally agrees to a comment, but folds their arms in front of their chest (which often signals “I am closed to your idea”), you might respond with something like: “You politely agreed with my suggestion but my guess is that you’re not really comfortable with it. Is that right?”
5. Help others to build empathy skills. Those who teach usually learn in the process of teaching.
Interviewing and Counselling Techniques
Many of the interviewing and counselling techniques that should be part of every lawyer’s toolkit are especially useful when dealing with distressed clients.
“The first tip is very simple,” says David. “Close your mouth for the first 15 minutes and listen to your client.” The client will reveal the emotional content as well as the factual nature of their legal problem. By listening to the underlying feelings, you can pick up whether your client is angry, depressed or sad. It’s the emotion that fuels the client’s motivation for seeking legal advice, adds David, and understanding it will help you to counsel your client better.
Also, because people care a great deal about the perceived fairness of rules and procedures used to make a decision, simply listening to your client’s story often helps them to feel better, says Jean Sternlight, director of the Saltman Centre for Conflict Resolution at the University of Nevada. She has studied how knowledge of psychology can help lawyers be more effective interviewers and counsellors.
At a more basic level, if you don’t listen and pay attention to the information your client is providing, you’re likely to miss important data.
Ask open-ended questions
Asking open-ended questions allows the client to tell their story in a way that makes sense to them. So even if they tell their story in a non-linear or non-chronological fashion, defer asking pointed questions until later, advises Sternlight. The interview may last longer, but you’ll obtain more detailed information as a result.
Acknowledge your client’s feelings
Deal head-on with your client’s emotions. It’s quicker in the long run, and teasing out the facts will be easier.
You can acknowledge a client’s feelings by saying something as simple as: “I can tell that you’re upset about this.”
Let clients know that they’re not alone
If the problem is one that other clients have experienced before, share this. It will help to validate your client’s concerns.
Use plain language
“Explain the law in plain language so the client doesn’t need a thesaurus,” Boyd advises. “Using language that clients understand is also your best protection against a negligence suit,” he adds.
And don’t be shy about injecting appropriate humour. A light-hearted touch can help to dry up tears or defuse volatility – just be sure to read your client accurately so they won’t be offended.
When to jump in
If memory of factual events is overshadowed by emotions, guide the client away from talking about their feelings to a more factual focus. General encouragement to recall more information isn’t usually helpful and can even impede accuracy, notes Sternlight. So, for example, with a wrongfully dismissed client, instead of asking a general question like, “Is there anything else you can recall about your conversations with your employer?”, you can better prompt memories by asking specific questions like, “Who was present at the layoff meeting?” and “Where did it take place?”
With some highly emotional clients, you may need to take control of the interview sooner than otherwise. Says Gluckstein: “If the client is spinning their wheels about everything in life, I have to jump in and direct the conversation – explain that I’m only available for another 20 minutes before the next appointment, and that I need to ask some questions to give them my opinion.”
Risks You Face With Emotionally Distressed Clients
Emotionally distressed clients pose greater risks than non-distressed clients. Because emotions may cloud their thinking, you may fail to appreciate the nature of the client’s problems, or they may fail to understand your advice.
You’re also at greater risk of being subjected to a professional complaint. As Wade notes: “The scars of experience also testify that a steady percentage of ‘emotional’ clients and their cheer squads will later turn on their lawyers with damaging gossip, non-payment of accounts, legal actions and reports to law societies.”
On top of that, the constant exposure to distressed clients can take its toll on your own emotional health in the form of burnout, stress, alcohol/drug addiction and vicarious trauma.
Vicarious trauma (VT) – also known as compassion fatigue, secondary trauma and secondary stress reaction – refers to the experience of a helping professional developing his or her own trauma symptoms as a result of continuously working with traumatized people. Symptoms may include sleep disturbances, sadness, anxiety, a sense of isolation, losing faith in God or humanity, irritability, difficulty concentrating, lack of empathy, fatigue, intolerance of others and/or a negative attitude toward your job. Burnout can contribute to developing vicarious trauma, but it’s not as intense as VT.
Traditionally observed among doctors, social workers and therapists who work with trauma victims, VT is now being studied among judges and lawyers, particularly family and criminal lawyers.
VT rates among U.S. attorneys are almost five times higher than for other professions, some research estimates suggest. In a Canadian study, almost two-thirds of judges experienced short- or long-term VT symptoms, reports Peter Jaffe, a psychologist and academic director of the Centre for Research on Violence Against Women & Children at the University of Western Ontario, and co-author of the study.
“Some lawyers are more at risk for developing vicarious trauma,” Jaffe says. “If you’re a criminal lawyer who reads victim statements, looks at crime scene photos and studies autopsy reports, you’re definitely more at risk.” Women are also significantly more likely than men to report VT, adds Jaffe.
What can you do to protect against and/or cope with VT?
Awareness: Be aware of vicarious trauma, and recognize that it’s normal if you start experiencing symptoms, says Jaffe. “And if you feel you’re on the verge of burnout, then look at counselling. It’s not a sign of weakness.”
Balance: Self-care is critical. Take holidays, keep fit and eat properly. Make sure you enjoy hobbies and interests beyond the law too. Says Jaffe: “The nature of the law is that you can get a jaded view of society, so get involved in your community in other ways. Coach soccer or join a faith group.”
Support: Book a weekly lunch or Friday walk with a mentor or colleagues to debrief, connect and talk about your week. “You need the support of your peers,” advises Jaffe. “More so than family or friends, they can understand what you’re going through.”
Filter out extra trauma: There’s plenty of extra trauma input outside of work that you don’t necessarily need to absorb or hear about, says Françoise Mathieu, a certified compassion fatigue specialist in Kingston, Ont. She recommends that you create a “trauma filter” to protect yourself from this extraneous material. Don’t watch violent TV shows, and avoid listening to depressing news on the radio when driving to work.
For more on vicarious trauma, see:
• Keeping legal minds intact: mitigating compassion fatigue among legal professionals (.pdf). Written by the Wisconsin Lawyers Assistance Program Coordinator, State Bar of Wisconsin.
• Transforming compassion fatigue into compassion satisfaction (.pdf). Tips from Françoise Mathieu, M.Ed., CCC, a specialist on compassion fatigue.
To protect against law society complaints and negligence claims, “paper your file and put everything in writing,” recommends Schindelka. “Confirm by email and letter all instructions. Document all conversations. Explain matters in detail. And if a meeting is likely to be volatile, have a witness such as a colleague or your secretary present.”
Talk to other colleagues
Part of the training of social workers, psychologists and psychiatrists involves talking about their feelings. In contrast, the culture of the legal profession discourages lawyers from talking about their personal experiences, notes Jaffe. Yet, as with VT, sharing how your work affects you will help preserve your sanity. Solicitor/client privilege must be maintained, but you can talk freely with other lawyers in your firm about firm clients. CBA subsection meetings are also good places to share war stories with colleagues. Just don’t divulge client names when chatting with lawyers outside your firm.
Set boundaries and limits
Some distance between you and your clients is necessary for you to remain objective and effective, so set boundaries beyond which clients cannot cross. “I never give out my cell phone number, and I have an unlisted home number,” says Boyd. Nor does he go out for coffee with his family law clients during a case (though he will once it’s concluded). Clients should also be encouraged to do as much for themselves as they can. Avoid jumping in too quickly to help a client with something they can handle, like retrieving old records.
Take a break
Finally, recognize when you may need to take a break from your practice area, says Schindelka, who is also a director of both the Alberta Lawyers’ Assistance Society and Saskatchewan’s Lawyers Concerned for Lawyers. After 3½ years of sexual abuse litigation (like “family law on steroids”), he felt he was no longer in a healthy mindset and moved into general litigation, except for family and criminal law.
Making Your Office a Safe Place to Experience Emotions
If you work with distressed clients on a regular basis, your office should feel like a safe place to experience emotions.
• Tissues: It’s elementary, but always have a box of tissues within easy reach.
• Décor: “People are talking about their feelings and their children, so my office is more friendly than a banker’s office,” says Boyd. “There’s art on the walls, a comfy couch, plants.”
• Privacy: Don’t install tearful clients in the glass-walled conference room. Not surprisingly, says Sternlight, research shows that “people are more willing to disclose relevant personal information in surroundings in which their privacy is assured.” Good soundproofing is important too.
• Lighting: Nix the overhead fluorescent lights. Go for soft indirect lighting through lamps.
• Staff: Give staff instructions on when it’s appropriate (or not) to interrupt an interview. Staff should also show the same respect to a client in humble circumstances (including intoxicated clients) that they would show to the president of a company, says Schindelka.
Referring Clients to Other Professionals
Yes, clients should have the opportunity to divulge their feelings. But at a certain point, they may be better served by speaking with someone else. Lawyers should be familiar with the available community resources relevant to their practice area (therapists, shelters, self-help groups, clergy, mental health professionals, etc.) and be ready and willing to make appropriate referrals.
Says Boyd: “If a client can’t stop crying in my office, I’ll say: ‘Have you thought about seeing somebody about this?’” They’re usually not taken aback by his suggestion.
Schindelka has walked some clients down to the local food bank and accompanied others to a nearby bank to set up an account and deposit their settlement cheques.
In some cases, consider setting up a counselling appointment in advance. For example, clients may benefit from debriefing with a professional counsellor after reliving a painful experience during examinations for discovery.
In extreme cases, you might want to refuse to act for a client until they have consulted a psychologist “and that expert has reported back with a diagnosis and strategy,” suggests Wade. If nothing else, this can at least “provide some evidentiary protection for a lawyer when a client later complains about duress or lack of informed consent.”
Tips for 3 Practice Areas
1. Family Law Clients
Family lawyers will find it helpful to understand the Kübler-Ross model of loss and grieving, suggests Boyd.
Say you have a case where the other spouse has been leaving the relationship mentally for a while and is well on their way through the Kübler-Ross path.
The Kübler-Ross Five Stages of Grief and Loss
Based on psychiatrist Elisabeth Kübler-Ross’s studies of the feelings of terminally ill patients, these five stages of grief apply whenever a person faces a serious loss, such as a marriage break-up:
Denial: “No, this can’t be happening to me.”
Anger/Resentment: “Why is this happening to me? Who is to blame?” Bargaining: “Make this not happen, and in return I will do this.”
Depression: “This really happened; I’m too sad to do anything.”
Acceptance: “It’s going to be ok; I’m at peace with what happened.”
Your client, who is still in denial and shock, wants to take an adversarial approach because they can’t believe how cold and callous their spouse appears. You can explain that, no, their spouse isn’t heartless, but just at a different stage in the grieving process. “This can help defuse emotions and avoid one of the hot spots that trigger litigation,” says Boyd.
Boyd recommends the following two books as essential reading for family lawyers:
- The Truth About Children and Divorce by Robert Emery. www.emeryondivorce.com
- Helping Your Kids Cope with Divorce the Sandcastles Wayby M. Gary Neuman.
Family lawyers may also want to join:
- The CBA National Family Law Section
- The Association of Family and Conciliation Courts – entitling you to the “Family Court Review,” a leading multidisciplinary journal for family law professionals by psychologists and others. www.afccnet.org
- The National Council on Family Relations. www.ncfr.org
2. Bankruptcy Clients
Commercial lawyers shouldn’t make the mistake of thinking their bankruptcy clients’ needs are merely financial.
“Understanding the psychology of failure, particularly when the failure of a business involves individuals who have a history of spectacular success, is equally or more important than addressing their financial circumstances,” asserts Steven Silton. A bankruptcy partner with the Minneapolis office of Hinshaw & Culbertson, Silton is also co-director of the University of St. Thomas Law School Bankruptcy Clinic. The clinic works with the university’s school of psychology and social work to address both the psychological and practical issues raised by clients in financial distress.
One aspect bankruptcy lawyers should address is the “deal mentality” of their clients. Business clients are accustomed to charging from deal to deal, where time is the enemy. Silton is often asked, “What is the plan?” and “When is this deal going to be done?” Since patience is often key to resolving these financial problems, he advises that you resist allowing your clients to push an unnecessary and poor solution.
Also, while it’s okay to allow bankruptcy clients to grieve a little over their loss, don’t allow them to “dwell on their misfortune at the expense of their future,” he says. “Give them a pep talk. Implore your client to focus on two things: first, what is necessary to get them through the financial crisis; second, their future, and their next ‘success’.”
Explaining the exemptions and the assets they can keep often to makes them feel more positive about their situation too.
Finally, “shifting the focus from wealth to work will provide a psychological lift for your client,” says Silton. “Wealth may have defined their lives for the immediate past; however, at some point, in order to amass their wealth, they were driven by work. Recapturing that spirit is an important aspect of rehabilitating your client’s financial fortunes.”
Read Silton’s article on “Counselling clients in financial distress” at www.mnbar.org/benchandbar/2009/aug09/financial.html.
3. Personal Injury Clients
“Personal injury clients, especially men, often struggle with a lot of financial pressure,” says Gluckstein. “They can’t work, so they can’t pay the mortgage.”
He advises the creditors of his clients that litigation is ongoing and they should wait until the case is resolved before continuing with collection attempts. “This takes some pressure off the client, so the bank and the telephone company aren’t hounding them, and they don’t feel like their world is caving in. It’s worked with Revenue Canada, credit card companies and banks.”
Gluckstein also arranges for meetings with the client’s medical team to ensure that the client is getting the appropriate treatment. “I don’t want to be the medical professional. I want the doctor to be dealing with medication if the client is depressed.”
Janice Mucalov is a Vancouver-based freelance writer.
Comment on this article