Softening the Blow

  • September 07, 2022

Dear Advy,
I would love your advice on supporting my clients and witnesses through the trial process from a wellness standpoint. Do you have any suggestions on helping them with their stress and anxiety?  I read more and more about people being re-traumatized by the entire process, and while I do not have a great deal of time to prep them, I would appreciate any methods you would suggest to help them get through the experience.

Softening the Blow

Dear Softening the Blow,

Kudos to you for giving some consideration to the well-being of your clients and witnesses at trial. 

That’s not just laudable from the standpoint of being a caring human being. Even from a purely self-interested point of view it is wise to bear in mind that these people your case depends on are themselves human beings who are often going through one of the most stressful experiences of their lives. That stress can translate into missed court appearances, memory lapses, damaging outbursts and other things that can mean the difference between success and failure at trial. Now, my sense is that you are asking this question out of consideration for the needs of witnesses and clients. I don’t mention those strategic concerns so much for your sake, but because you may well find yourself having to justify treating witnesses humanely to colleagues who may not be so considerate. 

No Two Are Alike

I’m by and large going to refer to witnesses and clients collectively as “witnesses”. The most distressing part of being involved in a trial is usually the act of giving evidence, so when it comes to managing trauma it’s the witness role that matters most. There are some exceptions to that which I will get into below.

The stress of a trial affects the people who participate in trial in a variety of ways. Not only is each person who approaches the witness stand unique, but the differing roles those individuals have in the case will affect their trial experience. Someone who stands to lose a child, go to prison or even lose a significant amount of money will usually have a very different experience from someone who has less at stake in the outcome. 

You are right to point out that many people who have been traumatized can be re-traumatized by what they go through in a courtroom. If you have spent any amount of time in trials, you have probably already noticed that you are often wrong when you try to predict which witnesses will be severely affected by the court experience and which will be more resilient. People you thought would be just fine will experience severe breakdowns. People you expected to be fragile will surprise you by managing perfectly well. Your thumbnail diagnosis of witness’ resilience is often wrong. Remembering that piece of humbling information can be very helpful in avoiding being taken by surprise at trial. 

Your Witness is the Expert

The best source of information as to how your witnesses will react when faced with the stress of trial are your witnesses themselves. Talk to them, frankly and openly about what the experience is going to be like. If it is practical, encourage them to watch other court hearings to get a sense of what a real courtroom is like. 

While you’re talking frankly about stress, it’s also critical that you do the hard work of explaining that legal processes do not usually go the way one wishes they would. A client’s understanding of the facts may well be contradicted by other evidence and there can be an adverse finding of fact. Judges and other people charged with making legal decisions are not all-seeing, all-knowing beings. They are humans who have to work with imperfect evidence to figure out what happened. That may seem obvious to you, but it is far from obvious to a non-lawyer. Being surprised that the court/tribunal/board or other fact-finding body didn’t see things your way can be incredibly traumatic.

“In Case of Emergency Break Glass”

You should also talk to your witnesses about what you do to take care of yourself when you are going through trial. Your own solutions to manage stress may not translate well to the witness’ life, but that’s not the point. What you are conveying is that it is okay to not be okay, and to develop a strategy to help yourself when that happens. 

You may occasionally see boxes inside buildings that have fire safety equipment in them. On the outside of those boxes, in bold red letters, is the message “In case of emergency break glass.”  Someone took the time to figure out what a person would need if there was a fire, and then put those things inside a glass box on the wall so they would be readily available to you when the time comes. You don’t have to hunt down a hose or something to break the window to escape when the fire is burning. It’s all right there in the box for you. Planning out what you (and by extension your witnesses) will do if you encounter the psychological equivalent of a three-alarm fire is your very own “In case of emergency break glass” box. Be the best friend possible to your possibly stressed-out future self. Here’s the really positive part of it: If you build a safety plan for yourself, it will give you the feeling of being in control of even the worst disasters. That feeling of control all by itself will help you get through when bad things happen. You can literally tell yourself “It’s okay, I planned for this.”  

I’m talking here about doing this for yourself which may seem irrelevant to your question. As I mentioned though, if you model pro-active self-care, it will help the witness do the same. As they say in the movie business “show don’t tell.” If your witness sees you calmly planning out what, you’ll do if things go sideways, it gives the witness permission and encouragement to do the same.

Taking Added Precautions

If you are aware that a witness has a mental health diagnosis, you need to be mindful of what the witness’ particular needs are. Mental illness is still extremely stigmatized in our society, so you need to approach a conversation like this with respect and discernment. The witness may have good reason not to want to share a diagnosis with you. Not only do you need to convey to the witness that you will not treat him/her as any lesser a human being than someone without a diagnosis, but you have to walk that talk as well. 

One of the most insidious elements of the social stigma surrounding mental illness is the pervasive belief that people with a diagnosed mental illness are less credible or reliable. Pay attention to what you say to your witness at the time you discuss their condition and afterward. Avoid conveying the message that you now can’t trust them because of what you know. Incidentally, there is persuasive research out there that suggests people with certain kinds of mental health challenges are more reliable witnesses, not less so. Depression in particular is often associated with a heightened grasp of reality, not an impeded one. 

Work with your witnesses and, if they are willing, involve their therapists or caregivers as well in developing a strategy before the trial begins to manage the effects of the trial on them. Some mental health conditions are diurnal, i.e., the symptoms change over the course of a day. The witness may have times of the day when the witness is in better health than others. The witness may have medications to take at particular times of the day, and you should work out a plan to ensure that schedule isn’t thrown off by the trial’s schedule. The symptoms of some conditions such as schizophrenia and the side effects of some medications can mimic what we generally think of as indicators of being untruthful even when the witness is being completely honest. Strategize with your witness so that you can present their testimony at the best time of day and under the best conditions possible. That not only helps your witness testify better, but it gives the witness the best chance of getting through the trial unharmed. 

Addressing these considerations might feel awkward at first. Remember that a mental health challenge is not something to be ashamed of; it is just something to factor into your work with the witness. If the witness were in a wheelchair, you wouldn’t avert your eyes and pretend you hadn’t seen it. You would make sure the witness can get to the witness stand to testify and then get out when finished. This is the same.

Again, remember that even if you have an enlightened understanding of mental health odds are your witness’ experience has been that revealing a diagnosis leads to rejection and harm, not help. It’s worth trying to find out if your witness has a condition that merits special care because the possibility of harm is even more acute than with other witnesses. However, you also need to make sure your efforts to find out don’t themselves traumatize your witness. There is no easy solution here, and you are going to need to exercise professional judgment to strike that balance. If striking that balance is difficult, consider getting professional advice from a psychologist or social worker. Sadly, most Canadian codes of conduct for lawyers do not require counsel to make certain they don’t harm witnesses. However, causing psychological harm or lasting emotional harm to a witness for the sake of winning a case is pretty much unjustifiable. 

The Reality of “Resilience”

We often underestimate the degree to which what we call resilience depends on the kinds of supports we have from others. Resilience is less a characteristic that an individual has and more determined by whether the person has a network of people to support that ability to get through traumatic events. One of the most unfortunate effects of the stigma associated with mental illness is social isolation. If your witness has been traumatized, the witness may also be at risk of being estranged from the family and friends who could be supportive. Pay attention to what supports your witness can rely on and provide what help you can to reinforce those supports.

I would encourage you to watch the Well-Being Hour program on Trauma-Informed Lawyering & Resilience in Practice that is available now.

The most unpredictable thing we have ever encountered in this universe thus far is that grey thing between our own ears. Predicting how a trial will affect the mental and emotional state of someone going through it is far from straightforward. Thank-you for paying attention to the needs of your clients and your witnesses. Let’s hope there are more thoughtful lawyers like you out there. 

Be well,

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