Lawyers: Gatekeepers For Psychological Issues

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Dated 14th Oct, 2015

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.

 Issues Presented by
Distressed Clients
 What is the Lawyer’s Role?
o Building Empathy

 Interviewing and Counselling

Techniques

 Risks You Face With

Distressed Clients
o Vicarious Trauma

 Protecting Yourself

 Making Your Office a Safe

Place to Experience
Emotions

 Referring Clients to Other

Professionals

 Tips for 3 Practice Areas:

o Family law:

o Bankruptcy

o Personal Injury

Issues Presented by Distressed Clients

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 “Asking open-ended

your client expresses extreme despair and pessimism about
the future, urge them to see a professional counsellor. (Talking questions allows the
to a person about suicide doesn’t make them more likely to client to tell their story
commit suicide.) in a way that makes
With family law clients, the intensity of loss that accompanies
sense to them. So even if
divorce is akin to a form of “temporary insanity,” observes John they tell their story in a
Wade, director of the Dispute Resolution Centre at Bond non-linear or non-
University’s faculty of law in Australia and a visiting professor chronological fashion,
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 defer asking pointed
dreams for yourself, for your family and for your children.” questions until later.”
“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.
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.
Listen
“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
— J.M.
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.
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 wh at 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.

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.
Protecting Yourself
Document everything
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
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
 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,litigation,
felt he was no longer in a healthy mindset and moved into general a certified compassion
except fatigue
for family and
specialist in Kingston, Ont. She
criminal law.
recommends that you create a “trauma
filter” to protect yourself from this
Making Your Office a Safe Place to Experienceextraneous Emotions material. Don’t watch violent
TV shows, and avoid listening to
depressing news on the radio when
If you work with distressed clients on a regular basis, your office should feel like a safe place to
driving to work.
experience emotions.
For more on vicarious trauma, see:
• Tissues: It’s elementary, but always have a box of tissues within easy reach.
• Keeping legal minds intact: mitigating
• Décor: “People are talking about their feelings and their children, so my
compassion officeamong
fatigue is more friendly than a
legal
banker’s office,” says Boyd. “There’s art on the walls, a comfy couch, plants.” Written by
professionals(.pdf).
the Wisconsin Lawyers Assistance
Program Coordinator, State Bar of
• Privacy: Don’t install tearful clients in the glass-walled conference room. Not surprisingly, says
Wisconsin.
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.
• Transforming compassion fatigue into
compassion satisfaction (.pdf). Tips
• Lighting: Nix the overhead fluorescent lights. Go for soft from
indirect lightingMathieu,
Françoise through M.Ed.,
lamps.CCC, a
specialist on compassion fatigue.
• 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 — J.M.(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.

Your client, who is still in denial and shock, wants

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.”
— J.M.
psychologists and others. www.afccnet.org
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

 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.”

Links:
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.

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