Week 6: Communication and Trauma Informed Practice

Question 1

Communications comprises the different types of exchanges you may have with your client, and includes:

Answer 1

• Written communication
  
  • Verbal communication
    Non-verbal communication

Question 2

Client Interview

Answer 2

→ The initial conversation a lawyer and their client have about the client’s issue
→ Client interviews are part of the solicitor’s job (barristers are briefed by solicitors)
→ A client interview is:
- A meeting between a lawyer and potential client
- An initial exploration of the case
- 30-60 minutes (less time today)
Usually free (but culminates in option retainer)

Question 3

Roberts v Cashman [2000] NSWSC 770

Answer 3

• The client’s banana chair broke and she hot injured. She had Depo Medrol injections which made things worse. The client joined a class action against Depo Medrol and filled out the law firm’s questionnaire. She never had a conference [client interview], or was asked about the original injury. When she found out she should have sued the manufacturer, her claim time was barred
• NSW SC duty of care breached, because:
• Firm had expertise in personal injury and product liability
• Inherent in Depo Medrol claim was assessment of original injury [for causation]
• Detailed information should have been obtained to be able to build a case
• Lawyer should have obtained medical records
• Questionnaire should have put on notice that conference was called for: problems for 3 years , significant operations and could not work
• There is no different standard of conduct in class actions or mass tort litigation
• Not impractible or uneconomic to have a conference
  “there is a grave danger that a solicitor will breach the implied duty in his retainer if he does not, in litigation matters, take the opportunity of interviewing the client and drawing out those aspects of the circumstances which may have a bearing upon potential causes of action arising out of all of the circumstances”

Question 4

Client-focussed Interview

Answer 4

→ A form of interviewing that established the client as an actor and agent (in line with rule 7 and 8 of the ASCR)
→ Moves away from traditional fully lawyer controlled styles
→ Lawyer controls the process, not the content
→ Recognises clients are well/best informed about relevant factual matters
→ Emphasises respect for client’s own preferences and priorities
→ Recognises that clients should have the opportunity to make their own decisions
→ Makes clients responsible for making decisions (and consequences of those decisions)

Question 5

To make our assumptions about clients better:

Answer 5

• Recognise that our judgements may be innacurate and make judgements cautiously
• Establish interview procedures that avoid biases
  · A client focussed approach recognises that the relationship of power and control between a client and lawyer should be symmetrical in nature
  · Participatory client appproach recognises that:
• Clients are very well informed about relevant factual matters and about their own preferences and priorities
• Clients should be given the opportunity to make their own decisions
  Clients are responsible for making decisions and they are responsible for the consequences of those decisions

Question 6

Structure of an Interview:

Answer 6

1. Listening to your clients story in its entirety
   
   2. Asking questions to obtain a complete understanding of the facts and of the chronology of the story
   3. Assessing the options and giving advice

Question 7

Your clients perspective

Answer 7

• Starting point is to put your client at ease
  
  • Avoid making client wait beyond scheduled time
  • Meeting clients in the foyer rather than awaiting them serves a dual purpose; shows that you respect them and allows you to break the ice
  • Introduce using your full name, and then state your preffered name
  • Often after pleasantries, clients prefer if costs are brought up front - in most jurisdictions this is a necessary part of a contractual retainer

Question 8

First Stage: Listening

Answer 8

• The first stage of your interview requires you simply to listen to your clients’ problem
  
  • First, and most importantly, it means not jumping in and asking questions at this point in the interview
  • It requires you to view your client as more than just a set of legal problems to be solved
  • It looks past a client’s immediate legal needs to emotional needs and attempts to ensure that lawyers develop a compassionate relationship with their clients within given time constraints
  • Early diagnosis and interruptions result in a frustrating interview for both client and interviewer and impeded the lawyer’s opportunity to gain the client’s confidence and trust
  • It is your task to verbally acknowledge the clients emotions in a way that does not further frustrate them
    When you notice inconsistencies in a clients story, make a mental note to raise these during the question portion of the interview

Question 9

Second Stage: Questioning

Answer 9

• The use of ‘open’ and then ‘closed’ questioning, if often described as a funnel sequence of questioning
  
  • ‘Wide’ non-specific questions are asked at the beginning (like the wide lip of a funnel) and then precise and explicit questions are asked as the issues are refined and narrowed
  • Example of an open question: can you tell me any more examples of fights you’ve had with this neighbour?
    Example of a closed question: you said that your neighbour threatened to pull the fence down - was that before or after you talked to him about the tree roots?

Question 10

Ethical Dangers in Interviewing

Answer 10

· If a client is showing reluctance in discussing a certain matter, consider how important it is to delve into this matter; if it is not essential information, drop it
Don’t be drawn into pursuing instructions that are unreasonable just to please your client

Question 11

Client Centred Approach

Answer 11

• Putting the client at the heart of the interview
  
  • Making the client feel trusted and their voice is heard
  • The client shapes the direction of the interview
  • Benefits: builds strong relationships between lawyer and client; more likely to trust and feel comfortable; better and more complete information; better case outcomes
  • When the client is doing the majority of the decision making - makes them feel more in control and that their voice is heard
  • More ethical approach that respects their autonomy
  • When clients feel respected and understood, they are more likely to disclose curical information
  • Moves away from a paternalistic approach and recognises that clients are well informed about their relevant factual matters, clients should be given the opportunity to make their own decisions

Question 12

Building Rapport

Answer 12

→ Rapport (or lack of it) starts from the moment we see another person; be mindful of unconscious bias
→ Small talk/ice breakers
→ Physical comfort
→ Emotional comfort
→ Ensure privacy
→ Ensure appropriate non-verbal communication
Distinguish whether your client is a transactional or relational type

Question 13

Listening

Answer 13

→ Active listening - a form of engaged listening whereby you truly try to obtain someone’s story and seek to understand them, rather than just letting them talk (LARS = listening; acknowledging; reflecting; summarising)
→ Make sure you listen to what your client says, not what you want to hear
→ Acknowledging lets the client know you are still will them and are interested in (and understand) their story
→ Reflecting (response that mirrors what the client has just said; important for confirmation) and Reframing (takes the underlying sentiment but paraphrases for client)
Summarising provides a summary of what the client has said for clarification

Question 14

T-Funnel Questions

Answer 14

Question 15

1. Broad Open Questions

Answer 15

→ Start with questions inviting client to share their narrative/story and goals e.g.:
- What can I help you with/why have you come to see me? (interests/goals)
Can you tell me what happened? (facts/narrative)

Question 16

2. General Open Questions

Answer 16

→ Often ask for clarification to get the client to tell you more, e.g:
- What happened next?
- Can you describe that in some more detail?
- Can you give me an example?
I’d like to understand this better - can you tell me some more?

Question 17

3. Detailed Questions

Answer 17

→ Once you have obtained the story with relevant additions, move towards more pointed questions e.g:
- Would you be able to describe the car that hit you?
- Does your workplace have an anti-harassment policy?
What injuries did the hospital diagnose after you had the accident

Question 18

4. Nitty-Gritty Questoins

Answer 18

→ These questions really get down to the details - your cilent might not have an immediate answer e.g:
- At what speed was your car travelling?
- What brand was the laptop your co-worker threw on the ground?
How many times did you send your neighbour a text message asking to turn down the volume?

Question 19

Trauma-Informed Practice

Answer 19

Trauma informed practice is about avoiding re-traumatisation, not helping people solve their trauma. Your job is not to try and ‘help’ - but you should know where people can find appropriate professional help

Question 20

Background Paper: Cathy Kezelman and Pam Stravolpoulos, Trauma and the Law: Applying Trauma-Informed Practice to Legal and Judicial Contexts, Blue Knot Foundation (Background Paper, 2016), 3-10 (starting with ‘Defining Trauma and Trauma-Informed Practice’) and 13-15 (‘Questioning “Credibility”’) only.

Answer 20

• Because complex trauma-related problems present in many guises (including risky and/or challenging behaviours) service-providers may not readily identify the trauma operative in the lives of their clients.
  
  • Similarly, the unresolved trauma in the lives of many people who engage in various capacities with the legal system is not necessarily apparent to practitioners of law.
  • With the appropriate training, the following principles of trauma-informed practice are readily accessible to all personnel. This is irrespective of the nature of their work, the qualifications they hold, the types of interaction they have with clients, and the services they provide.
    (1) Basic knowledge of the impacts of stress on the brain and body
    (2) Consistent emphasis on safety, trustworthiness, choice, collaboration and empowerment (emphasis on doing with rather than for or to)
    (3) Consistent emphasis on the way in which a service is provided (i.e. the how’ as much as the what’; the context in which services are delivered, not just what the service is)
    (4) Consistent emphasis on what may have happened to a client, rather than what is wrong’ with client/s ( 5) Recognition that difficult’ behaviour and/or symptoms’ may be the product of coping mechanisms and attempted self-protection in light of prior adverse experiences. If not seen through the lens of trauma, client behaviour is often and inappropriately labelled as pathological, when [it] should instead be viewed as adaptations a person has had to make in order to cope with life’s circumstances’
    (6) A strengths-based’ approach which acknowledges people’s skills, notwithstanding the enormity and effects of overwhelming experiences with which they may be struggling (Recognizing and promoting resilience is also a fundamental component of effective trauma-informed work’).
  • The law plays a pivotal role in regulation of, and responses to, human behaviour. Yet the insights of psychology do not currently inform either the professional training of legal personnel or their practice. This paradox is in urgent need of redress. Thus it is not only the new’ research insights of neuroscience which await incorporation within the training curricula of law - Most areas of law are organized around simplistic assumptions about humans as rational maximises of their own self-interest, undertaking cost-benefit assessments of their actions and the possible reactions to them’.20 This underpinning conception has some unfortunate effects.
    The issue of credibility’ is a key concept in relation to engagement with witnesses, victims and offenders alike (which once again is not to elide the important differences between them). Because interpersonally generated trauma stems from relational harm, traumatic responses are deeply organized around disruption and disconnection’.

Question 21

Rules

Answer 21

Question 22

Principles of Truama Informed Practice

Answer 22

A. Knowledge impacts stress on brain and body
B. Consistent emphasis on key principles (doing with rather than for or to)
C. Explain the way in which service is provided
D. What happened to you? Instead of what is wrong with you?
E. Recognise ‘difficult behaviour/symptoms’ may be coping mechanisms and attempted self-protection
F. Use ‘strengths-based’ approach