Negotiating Trauma & the Law: Maybe We Won’t “Shake It Off”

Negotiating Trauma & the Law: Maybe We Won’t “Shake It Off”

As we sit at home withstanding the multiple storms of 2020, we do not sit together. It’s not just that we are physically apart due to the pandemic. Home looks different for each of us: the pandemic has been a brutal buster of all the assumptions about comparable spaces, provisions, connectivity, resources. We also sit differently: differently abled, differently privileged, differently concerned, differently triggered (the masses who voted for Trump may be politically unsavory to some, but an existential threat to others; the defeat of Prop 16 in California may be unfortunate to some, but a blatant denial of historic injustice for others). The stakes are not the same for all of us: some of us worry about living in a country debasing its rule of law, while some worry about our own family’s ability to survive the onerous weight of laws. “The Law” has not and does not protect each of us equally; changes in the law do not impact us equally; trying to change the law does not exhaust us equally.

The making of a lawyer is often assumed to be divorced from the making of the whole person. And survival in the law is often conditional on not bringing your whole self, depending on who that full self is.

My colleagues and friends in diverse practice areas repeat having received versions of this message, on their way to becoming effective lawyers: If you can’t take the heat, get out of the kitchen!

Some choose to embrace the heat as a personal challenge—and later even wear the wounds with pride. Some resign themselves to the burns or find unhealthy coping mechanisms (for example, the American Bar Association’s (ABA) landmark 2016 study of over 12,000 attorneys showed over 20 percent screened for hazardous and harmful alcohol consumption). Some choose to spend their lives trying to change the kitchen. Still others, do get out, exemplified by the ABA’s recent report: “Majority of minority female lawyers consider leaving law.”

But, in 2020, lawyers cannot afford to buy the myth that trauma is an aberration in the profession of otherwise Teflon-coated lawyering machines. Negotiating trauma is perhaps as old as the profession, even though we may have never given that emotional labor nomenclature or visibility, to our detriment.

***

“I think a lot about the Peter Levine reading you assigned us, where he talked about how antelopes forget the trauma of being chased by a lion because they mostly experience trauma as a physiological response, and don’t try to rationalize it. Part of me wishes I could do that. Part of me wonders what I would lose if I could.” –B.N.

Thus had concluded one of my student’s final reflection journal for the semester.

The science of trauma’s physiological (and not only psychological) manifestations, which can be felt deep in our body, often sticks with many lawyers and law students after a training or class on the topic, because many of us have experienced these manifestations: scanning from head (ache) to foot (ache), you too may now be able to identify how your body reacts under stress, despite your brain’s rational issue-spotting, problem-solving legal training.

Here, the student was specifically reflecting on our reading and discussion of Waking the Tiger, by trauma expert Dr. Peter Levine. We had discussed Dr. Levine’s description of how trauma-induced energy is eventually released by an animal being preyed on by a larger predator. If it lives, the brave survivor literally gets up to “shake it off.” The response of freezing—and thus retaining that energy—is distinctly human. Dr. Levine has gone on to design therapeutic methods for humans to experience “release,” sometimes decades after accumulating trauma. But my student, a trauma survivor—before and during her legal education—was expressing that shaking it off was not entirely something she wished for either, despite the advice she had received from some supervisors and peers. Her traumas made her everyday life and work very heavy, but also charged her as a passionate legal advocate, and I am very certain, future attorney.

***

Most simply put, trauma is a deeply distressing or disturbing experience. The actual or perceived lack of control during a terrifying incident sends our brain from a regulate to dysregulated state. The brain does in fact “short-circuit,” and picks neural pathways that may not be the most rational response. The “fright/flight/freeze” mode takes over: a video I often share with students breaks it down for those who haven’t taken Biology since high school.

Having gone through any traumatic experience isn’t without consequence. The body keeps the score, as explained by a recent book of the same name. The consequences of the same traumatic experience (such as private trauma like a car accident or assault; or public trauma like a forest fire or school shooting) differ for different individuals. Their past accumulated traumas, histories, backgrounds, and childhoods all factor in to how exhausted their body already is and how fast it may be able to bounce back this time.

Being “trauma-informed” was a newish idea when I began direct legal services work after graduate school. It became a buzz word soon enough. But just like “cultural competence,” the term “trauma-informed” communicates an expertise, a line on our CV. Further, lawyers and their employers increasingly use the term to refer to only the trauma of the client and not the lawyer. Responding to client trauma is essential: in many places—especially that are not the California Bay Area—it’s still an uphill task to have the legal profession accept that learning, thinking, and knowing about clients’ traumas makes us better attorneys.

But when it comes to a lawyer’s own traumas, there is still more resistance—and even shame. The pushback does not come from any one type of lawyer. In my experience, some of the attorneys who are the most trauma-centered for their clients are the most resistant to extending that trauma-centeredness to themselves or, often more visibly, to their colleagues, juniors, and support staff. (And eventually, this too impacts their clients, in whose name they refuse to allow introspection for themselves and their peers.)

Generally, at best, there is now a recognition of “self-care” for attorneys. Unfortunately, this focus often takes the onus off the system, employer, and profession, and ironically adds another layer of expectation on the lawyer or lawyer-in-making: “On top of everything else, take care of yourself.” As much fun as puzzling, hiking, cooking, gardening, or journaling may be for some, they may also feel like chores when you are already exhausted. Moreover, this individual focus, by itself, is insufficient and flawed, as Dr. Bruce Perry beautifully notes in his book, The Boy Who Was Raised a Dog:

“For years mental health professionals taught people that they could be psychologically healthy without social support, that ‘unless you love yourself, no one else will love you’. The truth is, you cannot love yourself unless you have been loved and are loved. The capacity to love cannot be built in isolation.”

For many attorneys coming from histories of disenfranchisement and trauma, often these two things—trauma-centeredness and self-care—are essentially inseparable.

Take even the definition of “trauma stewardship” by Laura Lipsky —from her book that is  widely applicable to a range helping professions. Lipsky explains that her framework “calls on us to engage oppression and trauma—whether through our careers or personal lives– by caring for, tending to, and responsibly guiding others who are struggling…At the same time, we do not internalize others’ struggles and assume them as our own…”

Lipsky makes an essential point—that bears frequent reminder—about not assuming others’ struggles or co-opting someone else’s trauma. But what about those who share in the very struggles they are being advised to not make their own, such as my student B.N., whose identity as a woman and an attorney, involves her past and present trauma-negotiations? Or what about those international human rights lawyer colleagues, whose work is informed deeply by the communities they come from, or countries they have fled? As someone from the Punjabi Sikh community, which has survived pogroms and mass violence by the Indian state in the 1980s and 1990s (that lead to spirals of intergenerational trauma, as I recently explored in my book on the Punjab conflict), it’s easy to relate to other social justice lawyers whose inherited identities are not something they wish to run away from, but rather to channel for change, for justice.

A few years ago, I began proposing that what we do as lawyers and advocates in fact involves “negotiating trauma.” Allowing some loving introspective space to ourselves, our colleagues, our clients, and our profession would allow for us to better identify the reality of layers of trauma that interplay during legal practice.

Difficult negotiations of traumas and emotions are a regular facet of any type of legal practice, whether in representation, research, teaching, or writing.  Yet, how often do lawyers receive and convey messages of sustainability and longevity?

As lawyers, why do we think we are immune from the truism that hurt people are more likely to hurt people? Whether as supervisors and lawyers in power over other lawyers, or as lawyers vis-à-vis our clients we need to consider our role in triggering and causing further emotional distress and even trauma, because of our unexamined privileges and trauma-reactions. (It should give us pause that one iteration on the power and control wheel, otherwise employed as a tool to explain the dynamics of domestic violence, focuses on attorney abuse: “Lawyer-Client Relationship Abuse and Psychological Assault”)

What might we hope to change for the next generation of lawyers, for the sake of lawyers and clients?

***

Law students often discuss mental health generally as the “stress,” “tiredness,” or even the “hazing” of 1L year. These are apt descriptions for the experiences of some students, but they do not begin to encapsulate the challenges for others. Students who are neurodiverse may feel especially overloaded and unready to request disability accommodations, because they have never coded their mental health that way. Students who may have prior traumatic experience—individual and collective, personal and communal—experience law school very different from their peers. Past traumas may explain many unexplained reactions or even confusing “over-reactions.” Past trauma might manifest as freezing on being cold called to discuss Clinton v. Jones in Torts (even after receiving an apt trigger warning during the sexual crimes module in Crim). Or it might manifest as overwhelm on hearing a discussion about Korematsu in Con Law, sans acknowledgement of the heavy weight of that legacy for an entire people. Or, it might assert itself as barely being able to walk into class minutes after watching yet another gruesome end of a Black life in the United States. Making it to law school together does not make everyone alike, or even everyone with a certain trauma experience alike.

Students who fall outside the normative language, assumptions, and frameworks may find themselves constantly worrying—and thus working, mentally, overtime. They might regularly worry about disclosing their mental health to current professors and future employers. It might help some to be reminded that the CA Business and Professional Code, section 6060, as amended, and in effect since January 2020, generally prohibits the Bar from reviewing an applicant’s mental health medical records as part of the fitness to practice law and prohibits the committee from asking for mental health information. But, of course, mental health medical records do not encompass the range of experiences that affect mental wellbeing.

Students of color specifically report the common trauma-response of hypervigilance—being on the ever alert—as they navigate law school. One student of my students from Fall 2020 shared on a recent phone call that they just didn’t believe neurotypically privileged students experience hypervigilance as much: “that constant feeling that how you appear to others and what you say and do is always under scrutiny.”

Another student, visibly privileged and assumed to be so by their peers, had the year before shared their own hidden disability related to a childhood trauma of growing up in a house stricken with illness. Law school exam questions that related to seemingly laughable medical inventions and related intellectual property questions or off-hand comments about malpractice suits had all been extremely difficult for this student.

This is why I resonate with Dr. George Wood’s comment on a recent panel where we discussed race, mental health and the law: “I assume that students have been traumatized…That is my first assumption, and you have to walk me back from that.”

This is further heightened for some students. First-generation students often report being “confused” by the inside-speak of law school, since the 1L year assumes peoples’ lived experiences includes knowing many subtleties of the professional world of lawyering. Advocating for the more “rudimentary” information may feel too embarrassing because it brings attention to your racial identity and lack of privilege, or  because it brings attention to your mental health and wellbeing concerns in the face of the overwhelming messages that all lawyers are always people-facing—that all attorneys should be thinking-on-the-fly, Socratic-method-tested, born orators.

The fact that we are so different in our backgrounds, our experiences of trauma, and our associations with the law informs the reality that caring for ourselves and defining our sustainable lives as lawyers has no standardized formula. One size fits one–and this individual fit also changes over time.

In finding our fit, it may help to share and listen to stories of vulnerability, as well as acknowledge and openly share our privileges (unearned access to resources that help us get what we want). This can begin to help alleviate self-doubt, imposter syndromes, and inner critics. Without such sharing, for those carrying multiple burdens already, the usual “self-care” advice can itself feel at once as too much work and too little help.

Also, instead of asking students to find joy and meaning outside of law school, perhaps we also find and highlight the beauty, heart, care, and wonder at the resilience of the human spirit within the profession? Kindness goes far, and it always has. Berkeley Law alum Jose Varela has shared a story about how his criminal law professor, Caleb Foote, prevented this first-generation Latino law student from quitting school in 1L year. The Professor noted Jose had not taken his final exam. He made a phone call to Jose’s apartment, asking to see him. In his office, Professor Foote gave Jose his final. “He graded it right there,” remembers Jose.  “It was the first time that I had a person in a position of law school authority, who gave me a sense that I could do this. As I was leaving his office he said, ‘You will be a great lawyer. You can help a lot of people. I do hope you become a public defender.’ Just the kindness of it…Not that after that incident we became chummy-chummy. But it was just in that moment. After this I felt I belonged. I started visiting with professors, going to office hours. Once that fear went away, law school became fun. I realized I was here to learn the chess pieces and the chess moves that could help real people navigate the legal system.” Jose Varela is now the Public Defender of Marin County, California.

Often times those with the most privilege have the most time and emotional energy to help support students and colleagues. And when they employ their privilege this way, rather than “problem-solving” for a student, or asking them to “shake it off,” or reminding them unhelpfully that “this profession requires a tough skin,” they are paving a new path.

Many lawyers, current and future, negotiate belonging and unbelonging every day. We must recognize and respect that they don’t necessarily want that tension “solved” for them either. The often male, often privileged, lawyer tendency to problem-solve often does not help. Instead of solving, let’s try acknowledging and amplifying basic kindness, providing options, extending listening that doesn’t seek to assimilate, but rather hopes to evolve with all the strengths, especially those brought to us by people of diverse backgrounds who can expand our imaginations and institutions, as sorely required.

 

Mallika Kaur: Author and attorney focusing on human rights, with a specialization in gender and minority issues. She received her Juris Doctorate from the UC Berkeley School of Law, where she currently teaches, including the course she created, “Negotiating Trauma, Emotions, and the Practice of Law.”

Recommended Citation: Mallika Kaur, Negotiating Trauma & the Law: Maybe We Won’t “Shake It Off”, Calif. L. Rev. Online (Nov. 2020), https://www.californialawreview.org/negotiating-trauma-and-law.

 

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