Maine Practice: Big Advancements in Trauma-Informed Lawyering and Sex Abuse Survivor Claims

by Michael T. Bigos, Esq. and Elizabeth A. Kayatta, Esq.

Article originally published in the 2/24/22 edition of Maine Lawyers Review.

Trauma-informed lawyering is a new and invaluable tool for Maine attorneys. When deployed correctly, the trauma-informed approach helps to strengthen client relations, improve communication, and build trust. Though originally developed to empower clients in sex abuse survivor claims, the general principles of trauma-informed lawyering stand to benefit attorneys across all practice areas – from probate law, to domestic relations, to criminal defense – by reframing common interactions to equalize the power imbalance between attorney and client.

Whether you have heard the term or not, trauma-informed lawyering is a common currency that we, as legal professionals, can use to approach our work, from the earliest stages of intake through the appellate process.

Trauma-Informed Lawyering: What Is It and Why Do You Need to Care?

“Trauma-informed” lawyering is a conscious approach to the practice of law that focuses on developing interpersonal skills to help attorneys show empathy, compassion, and respect for clients who are survivors of trauma. Trauma takes many forms and is pervasive in situations that lead to legal disputes: divorce, childhood abuse, disability, bankruptcy, business breakups, incarceration, the death of a loved one.

Regardless of what your client has experienced, a trauma-informed approach prioritizes self-awareness and behavioral modifications by the attorney so as not to retraumatize or inflict further harm upon your client. Importantly, this fosters an environment where your client can continue on the path to personal healing – which, in turn, will almost always enable you to better represent his or her interests.

Sensitive communication is at the foundation of trauma-informed lawyering. Simple changes to the language we use can help improve client experiences and build trust, especially for clients who are intimidated by the mere thought of calling or meeting with an attorney. The following are a selection of best practices for communicating in a trauma-informed way:

• During client calls and meetings, make sure to welcome and thank your client for making the time to speak with you. If on the phone, verify that this is still a good time for your client to talk, and that she is somewhere they’ll be able to speak privately. If meeting in person, escort your client into a private meeting space and invite her to sit wherever she would like. These first interactions help set the tone for your discussion, and will signal to your client that you value her time and privacy.
• If your client brings documents, files, or photos to your meeting, acknowledge this at the outset, and reassure him that you will take the time to go through everything. Many trauma survivors will find it easier to focus on the discussion once they know they will have a chance to show what they have brought. You should also offer to make copies or scans of whatever materials he has brought – this can alleviate fears that he might lose evidence he’s already compiled.
• When asking your client to talk about her trauma, avoid questions like “what’s your side of the story?” or “what do you say he did to you?” as these undermine the validity of a client’s personal experience. Instead, use language like “I know this may be difficult to talk about, but can you tell me what happened?” Be sure to avoid phrasing questions that suggest your client should have done something differently in a traumatic situation (e.g., “why didn’t you leave?” or “why didn’t you tell him to stop?”).
• Survivors of trauma will often have difficulty recounting experiences in a linear manner and will have significant memory gaps. If you notice this happening, you should reassure your client that it’s completely normal to remember things out of order and to not recall certain things. In this case, ask him some follow-up questions to help you understand what happened. Use affirming-language like “I heard you mention X, can you tell me more about that?” or “you didn’t mention Y, and that’s okay, but did anything like that happen?”
• When your client is talking, provide her with validation by maintaining eye contact, nodding, and consciously projecting supportive body language (e.g., relaxed posture, arms uncrossed, hands visible on the table).
• Mirror the client’s language, as the words he chooses are usually the ones he’s most comfortable using. Avoid loaded using loaded terms like “victim” that define your client in terms of his trauma (instead, use “survivor”).
• At the conclusion of your conversation, thank your client for entrusting you with the information she has shared and let her know she can contact you if she remembers anything else.

Trauma-informed communication can go a long way toward building trust between client and lawyer. It is relatively simple, doesn’t cost any money, and are subtle enough to use with all your clients, not just those clients who have experienced trauma.

As legal professionals, trauma-informed lawyers must understand the limits of our expertise – and (more importantly) what is beyond our expertise. We are not credentialed mental health professionals, nor should we endeavor to be such. While it is easy for some survivor clients to see their attorneys as de facto counselors, the trauma-informed approach demands a clear boundary. When representing clients who have survived trauma, we must be open about the limitations of our advising.

Instead of being an outlet for the significant emotional difficulties our clients may be inclined to share, we can best assist them by referral to a trauma-informed mental health professional and providers who are properly equipped and trained to handle the complexities of unpacking emotional trauma caused by sexual abuse.

Once the trauma-informed lawyer understands the limits of his or her ability to “help” survivor clients, time with a client can be better spent on advancing her legal cause. Having appropriately relinquished any instinct to delve into “unpacking” the emotional trauma of a sex abuse case, our real work begins.

The Shifting Tectonics of Sex Abuse Claims in Maine

Trauma-informed lawyering is now more important than ever in light of Maine’s recently amended statute of limitations for childhood sex abuse claims. As of October 18, 2021, Maine no longer imposes a statute of limitations on claims arising out of sexual abuse perpetrated against a minor. Importantly, the new law retroactively removes the time limits that previously prevented childhood sex abuse survivors from seeking justice.

The result of hard-won legislative advocacy (of which Berman & Simmons played a part), this change in our law is transformational for abuse survivors. The lifting of the statute of limitations is, in and of itself, a trauma-informed approach that restores power and control to survivors.

By dissolving the time constraints with which survivors have long had to contend (formerly Maine law barred most claims for abuse which occurred prior to 1987), this new law allows survivors to come forward and share their lived experiences when they are ready. This is transformational because data shows that most survivors of childhood sex abuse are first “ready” to come forward at age 52 – often well after their claims were deemed “stale” under Maine law.

Taking Action, Calling Experts

Whether or not you are an established personal injury attorney who believes your client(s) may have an actionable claim, Maine attorneys should begin adopting trauma-informed approaches to practice. Whether a sex abuse claim or a probate matter, it is our job as legal professionals to know how to react appropriately and consistently with trauma-informed principles when we determine (or suspect) our clients are in need of assistance in this specialized area of the law.

By informing ourselves on changes to Maine’s statute of limitations and beginning to familiarize our practices with trauma-informed approaches, we ensure we are doing our jobs competently while minimizing risk of retraumatizing survivors – and reducing our own risk for vicarious trauma. Whether you have some experience working on an abuse survivor claim or you are discussing it for the first time with a new potential client, knowing where to turn can, in many cases, satisfy ethical obligations.

Berman & Simmons has a Sex Abuse Survivors Practice Group. This group has made investments in trauma-informed hiring, training, and audits with local sexual assault response nonprofits, and we now have an extensive network of expert witnesses, mental health counselors, assault response advocates, and leading abuse survivor lawyers around the country.

Michael T. Bigos and Elizabeth A. Kayatta lead the Sex Abuse Survivors Practice Group at Berman & Simmons, P.A. The firm has represented survivors of childhood and adult sex abuse throughout Maine, New England, and beyond – involving institutional defendants such as the Boy Scouts of America, Catholic Church, Seventh Day Adventists, Jehovah’s Witnesses, Salvation Army, and other private entities.