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Spitz, Karen --- "Surviving Trauma and the Litigation Process: A Socio-Legal Collaboration to Facilitate Better Client Outcomes" [2023] PrecedentAULA 61; (2023) 179 Precedent 10

Surviving trauma and the litigation process:

A socio-legal collaboration to facilitate better client outcomes

By Karen Spitz

The reckoning with child abuse in Australia is a complex, multi-decade process that has seen, among many other developments, the removal of limitation periods for child sexual abuse claims.^[1] One of the real-life consequences of these legal changes is that the number of survivors bravely coming forward has increased manyfold and abuse law practices around the country have grown exponentially. My employer, Shine Lawyers, is one such practice.

The question of what is helpful to the overall wellbeing of survivors of trauma in the context of civil abuse claims, which are in practice being conducted in a litigation space, needs to be considered using a framework that positions justice as a puzzle rather than a singular outcome.^[2] In other words, the engagement in a legally and commercially successful claim does not guarantee that the survivor feels justice has been achieved. This is particularly true as the litigation process is almost always re-traumatising; the process and its requirements of a claimant aggravate trauma to a great extent.^[3]

Therapeutically trained practitioners working alongside lawyers is not a new phenomenon. Since the 1940s, versions of socio-legal collaborations have existed in Australia,^[4] and today this way of working is found in community legal centres nationally. However, this way of working is almost entirely novel to private law firms. There are echoes of such support in the form of social worker assistance to clients through the process but what we sought to create at Shine is a dedicated, specialised support team that is fully integrated with the abuse law practice.

The purpose of this article is to report back on using this fledging socio-legal collaboration model that works proactively with the traumatising nature of litigation on abuse survivors. It is my hope that in sharing our experience at Shine, work in progress that it is, other organisations and legal practitioners will reflect on how socio-legal collaborations may be relevant in their own work.

FINDING A WAY TO WORK TOGETHER

Finding a way to work together was a flexible process, each step informed by the previous one. Two key steps are described below.

Data collection

In deciding where to start, I considered where mental health support would be most useful to the client and the legal team. In other words, at which points were the legal team observing distress or re-traumatisation in our clients? These constitute the relative ‘pain points’ of the claim.

In practice this translated to the creation of an unruly spreadsheet, which was completed by the lawyers in the weeks leading up to me starting my role as lead counsellor. The information the lawyers provided included difficulty in progressing the claim because of a decline in a client’s mental health, the presence of suicidal ideation and suicide attempts, additional stressors in the client’s life, available supports and incarceration status. Once this spreadsheet was completed by our entire abuse law practice, I reviewed it to identify high risk behaviours and situations, then returned to the legal team to ascertain appropriate support for specific individuals.

More generally, the pain points we identified were:

• the initial stages of taking instructions

• medical assessments and

• the settlement process.

These pain points were easily delineated phases of the claim and the ones for which collaboration guidelines were easiest to establish. They remain ongoing triggers for referrals.

Relationship building

In this context, and in many socio-legal collaborations, it is the relationships, not the processes, that are the key to success. From experience I knew that a process can appear streamlined but if the trust is not there to support collaborative work efforts, it will be a short-lived experiment. At the outset, I spent two months reaching out to and having conversations with each member of the large abuse law team about their impressions and experiences of dealing with clients’ mental health. I consider this time very well spent.

As I was moving through these early stages I regularly returned to a conversation I had with a good friend and senior lawyer, whose organisation undertook a similar collaboration, during which she stated that the success of the experiment hinged on making the lawyers understand how I would be useful to them. This may sound harsh, but lawyers rarely see or understand the need to talk to anyone else but other legal practitioners.

THE MODEL

In the current model, the support team's functions largely consist of working directly with clients to provide short term emotional support (mostly on the phone), create referral pathways to specialised trauma treatment providers, and manage risk in various forms. This support is provided free to clients and is an opt-in service with referrals made by the legal team. We do not provide treatment.

Alongside direct client engagement, we work behind the scenes supporting and guiding the lawyers in interactions we are not a direct part of. This serves to upskill the lawyers and is a valuable use of our time as we do not have the capacity to be involved in all interactions. Some issues we regularly address are client readiness for medical examinations, the timing of specific discussions, and appropriate approaches in having difficult discussions about expectations or points of discrepancy. In addition, we are frequent contributors to discussions about capacity, decompensation^[5] and risk management of challenging behaviours.

There is a lot more we could do but in delivering our service it is imperative that we focus our energies where we are best and most uniquely placed in the larger abuse team and broader mental health landscape. To this end we have framed our purpose as reducing the re-traumatisation caused by the legal process and as much as possible ensuring the claim process results in a net benefit to our clients’ wellbeing. In other words, we work to avoid decompensation to an extent that a survivor may say that they regret the process or feel worse off than before they started their claim. It is a brutal reality of abuse claims that many clients question the utility of the claim at some point and express regret for pursuing compensation.

Although a discussion of the model in its entirety is beyond the scope of this article, below is a discussion of two facets of the current method of working: the way we manage risk and the support we provide to our incarcerated clients.

Managing risk

When I speak of risk, I am referring to the possibility that the legal process will worsen a client’s existing suicidal ideation or lead to suicide attempts, as well as the more general risk of decompensation, which often looks like worsening self-medication behaviours and the consequences that flow from that, such as re-incarceration or disengagement from the legal process for extended periods of time.^[6]

These risks exist in part because our clients come to us in various states of awareness around the way in which the abuse has impacted them and continues to operate in their lives, due to the long-term impact of child sexual abuse. For many of our clients, speaking to us is the first time they are disclosing the abuse and they are likely to have to tell their story multiple times. The combination of these factors in the context of an adversarial litigation environment can lead to a decompensation during the claim.

To address this risk, we work to help our clients understand the nature of the legal process, the different steps and the length of time matters may take. We work to increase agency and decrease uncertainty. We provide psychoeducation about the specific symptomatology of trauma and its triggering to assist clients in managing the distressing impacts of telling their stories. In addition, we support our clients in understanding and overcoming barriers to accessing mental health support and work with the legal teams to pace the process such that our clients are in the best state to complete their claim. We generally find that mental health intervention at the outset is a powerful tool in preventing worse decompensation later – including the inability to complete the claim process. Nonetheless we also receive referrals at the end stage of a claim where disappointment with the outcome or defendant behaviour has been triggering to a client and they require support or referrals.

Working with incarcerated clients

The devastating impact of abuse is never clearer than when it diverts a young child’s life to the path of self-medication, offending behaviour and cyclical incarceration. Many of our clients are incarcerated, many are men and many of those are Aboriginal men. We are cognisant that prison is not an emotionally safe place to process trauma, particularly when the original trauma occurred in juvenile detention, which is the case for large numbers of our clients. We seek to work in a way that recognises the vulnerability and tenacity of these clients.

In terms of mental health support, we are limited in our referral pathways. Accessing prison mental health services is fraught and frequently plagued by delays. To address these difficulties, we often need to engage with incarcerated clients on a longer-term basis than we would with our clients in the community. What these clients specifically require is a safe person to help them understand the process and speak about the memories that are re-surfacing because of their discussions with the lawyers. We do find that after a handful of instances of support, our clients regulate or require far less frequent check ins. The Blue Knot Foundation is currently the only service offering counselling in prison and we are grateful when we can refer clients to them.

In recognition of the impact a claim may have on our clients, we seek to advocate in the ways that are available to us, namely support letters. We have identified several issues that are of particular importance to our clients, such as timely psychological support and single cell accommodation. We rarely receive a response or immediate action from the prisons, but for a number of our clients the letters have resulted in action being taken. If nothing else, the support letter contributes to our clients feeling supported and like someone is ‘in their corner’ and that has its own very real benefit.

Many of our clients are released and re-incarcerated several times during the claim. If the client is being released in less than six months, we proactively speak with them about post-release support and specifically engaging in specialised mental health treatment. Our clients are often open to this and some follow through, but the post-release period is challenging, with very real housing and financial stressors, so therapy is often not an immediate priority.

BENEFITS OF SOCIO-LEGAL COLLABORATION

Below are some of the benefits to clients my team has observed directly and received feedback on from clients and the legal teams over the last three years. Additional qualitative and quantitative research is required in this area to better understand the benefits to using this model and continue improving this way of working. While the benefits to a better client experience are paramount, the additional upskilling of lawyers is significant and addresses a current gap in legal education.

Client experience

Triage to address concerns early

For some survivors, our involvement facilitates a deeper and slower consideration of the decision to undergo a claim. These discussions arise when clients present with extreme vulnerability that flags to the legal team a potential difficulty in complying with the legal process without significant decompensation. Our discussions may result in a decision not to proceed with a civil claim at the time or at all. The clients may apply for the National Redress Scheme, or pursue a criminal complaint or therapy. Some clients will decide to continue despite the risks and, in those situations, we work to ensure appropriate mental health and social supports are in place throughout the claim.

Improving client engagement

Client engagement can be improved temporarily or over the life of the claim by direct engagement with the mental health team that sees us working to identify appropriate referral pathways that fortify the client throughout the claim. This not only allows for a more streamlined process that enables the solicitors to complete the claim in the fastest time possible but also supports the client’s wellbeing. We see decompensation increase as the claim drags on and while we can, and do, support clients through lengthy, viciously disputed claims, a shorter claim is always better.

Better and more complete instructions

Where a client is having more difficulty than usual giving instructions, engagement with the mental health team allows for better and more complete instructions at the outset of the claim. This has many benefits to the running and success of the claim. It also supports the client’s ongoing mental health as the direct involvement of a therapeutically trained individual in the instructions process mitigates the retraumatising impact of telling the abuse story.

Accessing treatment that addresses the abuse

In helping clients to identify and connect with treatment providers, our team assists with access to treatment that addresses the abuse in question. The engagement with appropriate providers not only reduces decompensation and increases the likelihood of the claim being completed with the client in a stable state but also provides the opportunity to integrate and process trauma.

Attending medical examinations

These compulsory appointments are a cause of much distress, and a considerable number of clients miss one or more. The provision of strategically timed support has allowed clients to participate in such examinations successfully, staying to the end of the appointment and answering all the questions with enough detail for the psychiatrist to write the report. This not only allows the claim to proceed but has a financial benefit: avoiding multiple cancellation fees being charged to the client’s file. Importantly it also gives us the opportunity to intervene if the client begins to decompensate following the appointment, which is unfortunately a regular occurrence.

Seeing the process through

Client: ‘[M]y lawyer said we’ve got a counsellor if you would like and can organise that for you ... I had previously engaged the police counsellor but there was like a six or eight week waiting list and I was not okay ... I would have my meeting with my lawyer and then I would just sort of go downhill ... ruminate on the injustice ... because they had a relationship ... I guess Mel tipped Karen off, maybe, hey, it might be good to check in with Julia after this conversation, and that was really helpful.’

Interviewer: ‘How much more difficult would this process have been without Karen do you think?’

Client: ‘I couldn’t have kept going’.^[7]

A discussion with one of my clients, Julia, on the podcast Restitution provides an example of how helpful the socio-legal collaboration can be for clients throughout the process. On multiple occasions our clients and their lawyers have cited our involvement as the factor that allowed them to complete the claim. For each client the impact is likely to be different.

A more meaningful version of justice

As flagged in the beginning of this article, a legal outcome (even a good one) does not automatically equate to the client feeling justice has been served. Working in a socio-legal collaboration using trauma-informed principles cultivates a greater feeling of engagement and agency in the process, and can address trauma symptomatology as it arises, thus supporting long term wellness beyond the claim period. Our team also has the space to engage in conversations with clients about the reality that the claim’s resolution is not the end of the journey, and engage in holistic planning of post-claim life and supports.

Creating trauma-informed lawyers

Working in a socio-legal collaboration has allowed us to support and assist the legal team to work more effectively with trauma survivors. Creating trauma-informed lawyers complements the collaborative work and facilitates a better standalone experience when a client interacts with their legal team. This work is only just beginning. Further special efforts need to be made to strengthen lawyers’ abilities to work with Aboriginal and Torres Strait Islander peoples in a culturally appropriate way, as they continue to be overrepresented in the statistics of institutional abuse due to historical and ongoing structural realities.

I have found overwhelmingly that members of the legal team want to do the right thing by their clients. The lawyers each have their own unique ways of working and not everyone is an early or enthusiastic adopter, but I largely found a consistent openness and willingness to work collaboratively.

Our team also runs internal trauma training. Topics include working with suicidal ideation, trauma-informed interviewing and managing escalated clients. Naturally there is daily learning by osmosis as we work alongside one another directly and indirectly. It is a negligent gap in our legal education that we do not prepare graduates to work with survivors of trauma. This is not something that should be learned on the job. My personal efforts to try and address this gap include the development and delivery of a unit at Charles Darwin University: ‘Survivors of Trauma in the Legal System’. I hope subjects of this kind will become commonplace in Australian law degrees in the near future so survivors receive the highest level of trauma-informed service.

FINAL REFLECTIONS

Representing and supporting survivors of trauma in their claim is a privilege. It is my hope that the legal profession continues to move towards a way of working that is more holistic and trauma informed. If our clients can muster the courage to bring a claim then surely the law can find a way to deliver justice in a more complete and meaningful way.

I thank my clinical supervisor Dr Traill Dowie for his persistent encouragement to write this article.

Karen Spitz is Shine Lawyers’ Lead Counsellor, working as part of the Abuse Law practice. Karen holds legal and counselling qualifications and has worked with survivors of sexual violence since 2015. EMAIL kspitz@shine.com.au

^[1] Royal Commission Into Institutional Responses to Child Sexual Abuse: Redress and Civil Litigation Report (September 2015) <https://www.childabuseroyalcommission.gov.au/redress-and-civil-litigation>.

^[2] C McGlynn and N Westmarland, ‘Kaleidoscopic justice: Sexual violence and victim-survivors’ perceptions of justice’, Social & Legal Studies, 28(2), 2019, 179–201. <https://doi.org/10.1177/0964663918761200>.

^[3] M Keet, H Heavin and S Sparrow, ‘Anticipating and managing the psychological cost of civil litigation’, Windsor Yearbook of Access to Justice/Recueil annuel de Windsor d'accès à la justice, 34(2), 2017, 73–98 <https://doi.org/10.22329/wyaj.v34i2.5023>.

^[4] JA Donovan, ‘Socio-legal collaborations in Australia – models of service provision and the influence on practice’ (PhD Thesis, The University of Melbourne, 2019) <https://minerva-access.unimelb.edu.au/items/0f10cb85-5fa2-56a2-8ad2-6af88c7ea01f>.

^[5] Decompensation refers to the worsening of an individual’s mental health symptoms or condition. It is often understood as one’s existing coping mechanisms becoming overloaded and the person’s capacity to manage life being impacted.

^[6] D Haslam D et al, ‘The prevalence and impact of child maltreatment in Australia: Findings from the Australian Child Maltreatment Study: Brief Report’, Queensland University of Technology (2023) <http://doi.org/10.5204/rep.eprints.239397> .

^[7] ‘“We call it safety planning”: A trauma-informed approach to litigation’ Restitution (15 August 2022) 14:45–17:40 <https://omny.fm/shows/restitution/we-call-it-safety-planning-a-trauma-informed-appro>.