Message Undeliverable: how trauma impacts client communication

Communication breakdown is the predominant cause of Lawcover claims against solicitors, but, even when solicitors meticulously update their clients at every stage of a matter and advise them on every possible next step, their attempts at communication often seem to fall on deaf ears. Some clients may even respond to advice with instructions that seem irrational or discordant with the information given to them by their solicitor.

The perceived impossibility of communication in moments like these is more accurate than many solicitors may realise, especially when those solicitors are working in areas that typically have high incidences of clients with histories of trauma, such as criminal law, family law, Department of Veteran’s Affairs law and immigration law.

This is because of the influence of trauma on communication.

Trauma and the brain

Trauma changes the way our brains work. Unresolved trauma can keep the brain and body in a perpetual or near-constant state of “survival mode,” and when this mode is active, the brain and body will sideline non-essential functions and redirect all energy towards the evolutionary processes intended to keep us alive. A person who has entered this dysregulated, survival-mode state will be operating with impaired:

• thought processing,
• ability to plan,
• memory storage and recall,
• auditory processing,
• perception of morality, reality, and more.

When we consider that the vast majority of clients will have experienced at least one potentially traumatising event in their personal histories, and noting that persons with unresolved trauma enter dysregulated states much more easily and quickly than persons who are not in a constant or near-constant survival mode, the communication difficulties solicitors face with these clients become not only understandable but even predictable.

The car analogy

One way of conceptualising the experience of communicating with a dysregulated client is to imagine two people speaking over the phone. One person is speaking from their desk inside their office; there are plenty of windows around, the temperature of the room is comfortable, and they have a clear phone connection. Unbeknown to the office-dweller, however, the person with whom they are speaking is dialling in from their car, stuck in traffic in a long tunnel underground. Their vehicle is running out of petrol, there are roadworks going on to either side of their lane, there isn’t much light getting through to their car, and their connection keeps dropping out on every third word.

No matter the topic of conversation or the clarity with which the person in the office is speaking, few of us would expect the person in the tunnel to be able to have a productive conversation. Most of us would assume that they would unlikely be hearing much of what is being said, be able to focus on what little they do hear, and be able to note down matters of importance, such as key dates. It is not implausible to think that, in these circumstances, the person in the car may be shouting out the car window, “Just get on with it already, this is taking forever!”, leaving the person in the office questioning whether that sentiment was meant for them.

For a person with unresolved trauma, this analogy is an all too apt representation of what it’s like to communicate while dysregulated.

• The roadworks and patchy phone connection represent the impaired thought processing and auditory processing of a person in survival mode – a dysregulated brain simply will not process nuanced or complex language when it is focusing on listening for signs of threat, and the executive function required to create and articulate nuanced speech in response will be inaccessible.
• The low level of petrol represents not only the exhaustion many persons with unresolved trauma regularly endure but also the urgency with which a person in survival mode will be engaging with the world – they will be acting from a place of reactivity rather than through planned, intentional behaviours.
• The dim lighting and inability to locate a pen and paper represent the impaired function of a dysregulated brain’s hippocampus – the memory centre of the brain – and the consequent fettering of a person’s ability to both store new information as memory and to recall past information accurately.
• The confused shout out the car window represents the difficulty of interpreting (and the danger of acting on) instructions given by a dysregulated brain – persons with unresolved trauma can enter survival mode even in the absence of an objectively obvious threat, often resulting in reactive responses that appear disproportionate or even counterintuitive to the regulated bystander.

If we apply this analogy to the legal process, we can see that a solicitor’s ability to satisfy him or herself that a client has understood their advice is no straight-forward matter. If a solicitor with full access to their cognitive functioning is unaware of a client’s dysregulated state and attempts to speak to the client as though he or she were in a regulated one, all manner of miscommunications may occur. However, in the same way that the person in the office would likely not have continued the phone conversation had they known that the other person was stuck in poor traffic conditions and with a poor phone connection, solicitors who approach communication with their clients through a trauma-informed lens might find that certain interactions become more comprehensible and navigable.

Communication through a trauma-informed lens

Many solicitors would not knowingly convey advice over the phone to a client whom they knew had hearing difficulties – they would send their advice in writing or schedule an in-person meeting. Many solicitors would not begin questioning a client about an affidavit timeline in a moment when they could see the client’s attention being taken up by an unrelated matter – they would wait until the client could comfortably focus and participate actively. Many solicitors would not immediately progress a matter in response to an instruction like “just get on with it” if they knew that that sentiment was actually directed towards a different frustration in the client’s life – they would take necessary steps to ensure that the client was speaking in reference to their matter and that the instruction was intentional.

One of the reasons that this dilemma of communication is so prevalent is a lack of awareness in the legal profession with respect to what trauma actually is, how easily the symptoms of it can be triggered before the recovery process is complete, and how it affects a person’s daily life.

Traumatic events are circumstances which overwhelm our brain with a sense of threat to our safety. They do not have to be objectively life-threatening; examples of potentially traumatic events include parental neglect, sudden or deeply painful loss of a loved one, losing a job, physical or psychological abuse, car accidents, medical procedures, and much more. If a potentially traumatic event is perceived by a person’s brain as overwhelmingly threatening for any reason, these events will often leave that individual with a psychological wound of unresolved trauma.

Window of Tolerance

One of the major symptoms of such a wound is the narrowing of an individual’s Window of Tolerance. The Window of Tolerance is the term used to describe the physiological and psychological state in which our bodies and brains are calm, regulated, and integrated with one another. When we encounter situations that our brains perceive as presenting beyond-tolerable threat – and of course, the narrowing effect on persons with unresolved trauma means that the level of threat required is much lower – we will be pushed out of this regulated zone into emotionally dysregulated states of overwhelming anger, panic, fear, numbness, dissociation, and more.

Many clients have traumatic events in their personal histories. While traumatic events are not uncommon even in the general population, research shows that psychological injury arising from trauma is much higher among participants in the legal process. It’s a common misconception that criminal and family law are the only practice areas that contain a high prevalence of traumatised persons; medical negligence claims, immigration processes, and workers compensation matters are just a few other specialities that will often encounter clients with trauma. Even commercial law practitioners will find their matters regularly impacted by elements of trauma and dysregulation. Not only do processes such as mergers and acquisitions frequently cause organisational trauma – often witnessed through trauma symptoms manifesting across an organisation during periods of chaotic adjustment such as, in this context, the post-merger integration phase – but the mere experience of receiving a settlement offer during negotiations has been shown to be emotionally dysregulating in and of itself.

Trauma is a near constant presence in the legal system, whether it’s found in a client’s personal history or caused by the legal process itself. With the duties solicitors bear towards their clients, trauma and its impact on communication cannot afford to be ignored. If you are interested in learning more about this topic, please note that The Law Society of New South Wales is currently working on an initiative to provide solicitors with comprehensive informational and training resources on trauma-informed legal practice and client communication. More information will be available about these resources soon.

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Anna Fischer is the Wellbeing Manager at the Law Society of NSW.