Building Client Trust Through Trauma-Informed Advocacy – Legal Up Virtual Conference 2025 by InfoTrack

Episode Notes

Transcript

Joe Scott:

Hello and welcome to On the Road with InfoTrack and Legal Talk Network. I’m Joe Scott, one of the programming coordinators at Legal Up the annual Virtual conference hosted by InfoTrack. Over the next few weeks, we’ll present special episodes of the On the Road podcast to highlight some of the best insights from past events. Attorneys who specialize in employment law frequently help clients deal with some of the most harrowing chapters of their lifetimes. Many of those same clients refuse to settle even when they stand to receive major financial compensation. Drew Levine, an employment lawyer in Southern California, breaks down why some clients just refuse to settle their cases and what’s behind the resistance to letting these cases go. He delves into the psychology behind client trauma and how sometimes you’ll bump into this issue on the part of the employer defendant. We hope you enjoy this episode and don’t forget to pre-register for the next Legal Up Virtual conference at Legal Up 2020 six.com.

Drew Levine:

So the reason why I find this to be an important and fascinating field of law is the degree to which human beings center their sense of self around what they do. You go to a party, you go on a date, you meet somebody new. One of the first questions that people typically ask is, what is it that you do? I think the first thing that people say in response, they don’t say, oh, I practice yoga, or, oh, I take walks in the morning In respond to that question, they talk about what they do for work. They talk about what their employment is. It’s a big part of their sense of identity. So with that sort of extreme focus on that relationship, the employment relationship or what we do to the labor that we do to earn wages so that we can survive in the world when things go wrong and when disputes arise, it can be an enormous event both for the person who may be bringing forth the claim and the person who’s responding to the claim.

And so learning how to navigate these issues and building trust so that you can effectively advocate for your client in these contexts, to me is of paramount importance. And so employment law fundamentally is a relationship centered practice. You have to address the complexities of the relationship, the history of relationships, and the way that people understand their roles in relationships in order to truly understand where your client is coming from when they have questions or they have concerns about how the process is going to go. So to that end, building trust is important. And one of the main methods that we’re going to talk about in building trust is to exercise empathy and to understand where your client is coming from when they come to you with such a dispute. Emotional complexity is something that plays a significant role. The ways that people behave, the way that people feel are often not very simple, requires a little bit of understanding.

Occasionally, if you have to take disputes like these to trial, you may require an expert to help explain the relative behaviors of either side because employment really does center around issues of identity as well as security. If you don’t feel as though your employment situation is healthy, it makes you feel very insecure about life and your ability to pay your bills and also the measure of control that you have over your own life and your own destiny. So in addition to these issues when disputes arise and when people do have to basically come to some kind of find some kind of forum to resolve their employment disputes, the stakes are very high, not only because of the deeply personal connections and the sense of betrayal that either side can feel when one of these disputes arise, but if the employment relationship doesn’t work out, it can result in termination, for example.

So job loss has this effect for many people of triggering a deep sense of identity loss as well as a sense of betrayal. There’s a concept that was developed in psychology that I think really sort of informs the way in which failed employment relationships impact people. And it’s a concept developed by a psychologist Jennifer Freed, called Betrayal Thought Trauma theory. Now, employment law disputes unlike car crashes and other types of disputes where there’s no deep relationship between the two people that are in dispute, betrayal, trauma arises when there’s a perceived violation of trust by something or someone that the victim relies upon. If you’re an employee, you go to work expecting that your employer is going to provide a safe atmosphere where you’re going to be paid appropriately for the work that you’re doing. And then employers, they also make themselves vulnerable, especially if you’re a smaller employer and they make themselves vulnerable to the people that work for them.

They share with them sometimes potentially sensitive trade secrets and processes as well as sometimes preventing them to see financials, but also being a person that interacts with their clients and what employees do on behalf of employers can have a substantial impact of course on the employer’s reputation and credibility. So it’s a two-way street where if there’s a sense of betrayal in either party to this relationship, it can trigger this betrayal. Trauma freed posits that when a victim is dependent on the perpetrator, such as when the employee is dependent on the employer for their wages and for their livelihood, victims can sometimes be unaware or actively suppress awareness of the betrayal as a coping strategy. So if you do practice employment law, and I primarily advocate on behalf of plaintiffs now, although in the past I have advocated on behalf of employers, one thing I see in my practice quite a bit is that people will often delay addressing issues that ought to be addressed.

And one of the reasons for that is because of this, the way that people process this betrayal trauma where they tend to suppress things as part of this phenomenon of betrayal trauma, people do enter into survival mechanisms if they acknowledge the betrayal that many people’s view, and sometimes with real fear, especially given the history of how sexual harassment, for example has been reported, people fear that if they do address their trauma or they address the thing that is causing their trauma, that they may end up losing more then they gain. And so they enter into survival mechanisms in order to avoid having to confront that. So in psychological impacts of betrayal, trauma is that people can disassociate, there can be memory gaps, depression, post-traumatic stress disorder, or even complex post-traumatic stress disorder. Sometimes victims can enter into a cycle of self blame. And for all these reasons, when you are taking on somebody who has suffered this betrayal, in my view, it’s important to understand why it is that some of their behaviors or some of the ways that they’re operating, even as they’re telling you their story may not make sense to you and it has to do with just the human response to trauma.

So to that end, it’s helpful to understand how to engage in what the professionals call a trauma-informed legal advocacy. So once you understand, when you understand and you have a concept of how people who have been through trauma operate, it will help you identify and recognize the behaviors that fall outside of the norm and you can help potentially navigate your client through them. I found that sometimes it’s helpful to even broach these topics. I’m not a psychologist, obviously I’m an attorney and my understanding of these conferences is limited to what I’ve had to learn through my work. But just putting a name to some of the processes that your client is going through, asking them, and you don’t have to say it, you can ask them, do you feel as though you are having issues concentrating because you are having to sort re-experience the trauma may help them understand a little bit about what’s happening to themselves.

So a trauma-informed lawyer will also be able to recognize some of the ways that it presents. Sometimes clients will have a flat affect. They’ll be agitated at questions, they may avoid tasks that you try to give them. Their narratives may be inconsistent at times. And so these are symptoms that you ought to recognize and not immediately conclude that your client is not being truthful with you or honest with you, but to also sort of explain to them that this could be the result of trauma. So building trust and transparency is crucial. Demonstrating that you have an understanding of how trauma may have affected them is I think critical. And also reassuring them that when they come to you that they now have somebody on their side is I think really important to someone who’s been affected by trauma in this way. One of the things that’s been the biggest surprise to me when I advocate for victims is when they do see me begin the advocacy process, they tell me things to the effect of, this is the first time that really anybody has ever stood up for me in this way.

You’re talking to people who have essentially, I mean if they’ve made complaints to the employer say that you’re kind of late in the employment dispute, say that they’ve made complaints to the employer and the employer has retaliated against them or terminated them, this may be the first time that they’ve actually been able to have an advocate on their behalf and they don’t have to feel like they’re having to advocate for themselves in all ways. I would suggest that if you do decide to take on employment law cases, especially if you’re representing victims, to spend time understanding how trauma can affect it, the way that they present to be able to talk intelligently about it, and also to help them understand, and I think this is crucial, that when a person comes to you with trauma and they have no idea how to address it, that you give them a clear pathway forward that they feel that they can trust.

I believe that those are likely the most effective tools that you can have in establishing that trust relationship. And once you establish that trust relationship, it’s substantially easier to have client control where they’re going to listen to your advice, they’re going to follow your lead, and potentially once settlement discussions start, they’re going to listen to your recommendations rather than have their own idea about how to prosecute their case. So we’ve been talking already about the importance of empathizing with employee clients. It’s important that you do create a safe space for them where they can share their narrative. Sometimes that means creating a safe physical space such as having them come into your office. Sometimes they don’t want to do that and they’re going to need more physical space. And so setting up a Zoom conference call and a zoom meeting may be preferential or just a phone call, but basically they need to be in a place where they don’t feel like they’re being ganged up on.

I would also suggest that to the extent that you can practice active listening skills, that’s something that’s going to really help you foster trust as well. And active listening. I’m sure most of you have heard of this concept or you’ve dealt with this concept to some degree before, but active listening is basically a skillset that you have where you give indications as you’re listening to somebody that you’re retaining what they’re telling you and that you’re giving them the opportunity to clarify what they’re telling you if it’s ambiguous. My favorite line is when you said this, what I understood, so say someone is reporting that their employer said some comment to them that made them feel really undermined. It’s an age discrimination case. So someone comes to me, I said, okay, so when your employer told you that and asked you when you thought that you might be interested in retiring, what I’m hearing you say is that you felt that the way that it was presented was that the employer was trying to get you to think about retirement so that they could potentially push you out.

Did I understand you correctly? So you are sort of repeating back what the client has told to you and you’re also giving them the opportunity to clarify and to add to it that first two purposes. One is that it’s going to help your understanding to know where exactly your client is coming from, and it’s also going to give your client an opportunity to feel as though they’ve been heard. So it’s a win-win. And so that’s a very helpful skill to practice when you’re dealing with somebody who may be dealing with trauma. If they really truly feel heard, you’re probably going to see that they’re going to be a little bit more forgiving when you get things a little bit wrong about your understanding of what they’re going through. So to go a little bit deeper into the psychology of the employee client, you are typically dealing with someone who historically has been at an extreme power disadvantage relative to the person that they’re has done something illegal to them.

So that submissive dynamic between the employee and the employer is also important to understand. And there may be lingering effects where the employee may still feel a little ambivalent about coming after someone upon whom they depended for so long, but for myriad reasons, there’s a lot of anxiety in legal settings. I mean, typically you’re dealing with somebody who once had a good relationship with a person that they feel has wronged them. So there’s quite a bit of ambivalence about that, and there’s a fair amount of anxiety in approaching that. So to the extent that you can, what I like to do is I just try to reassure the employees that they now have an advocate on their side that the purpose of proceeding against the employer is not to harm, but to rather compensate for the harm that they endured and to sort of frame it in a way that this is just a very normal thing that you have to do and that courts have to do when an employer breaks the law.

The history of self-advocacy, as we’ve discussed, can complicate the client relationships. What you may find is that unless you set very clear boundaries and very clear ground rules about what is appropriate behavior, when your clients are in disputes like this, they may go off the rails a little bit. For example, I’ve had clients who, one example I’ll give you in particular is I had a case that involved sexual harassment. My client was a waitress at a restaurant. She claimed that she was sexually harassed by one of the cooks, made a lot of comments towards her, didn’t touch her, but made a lot of comments towards her that made her feel very uncomfortable, some whistling and other things to that effect. She had a very good friend who was also a waitress or server at the restaurant with her that was a witness and saw a lot of the conduct.

Turns out that once she asserted her claims in court, this good friend and witness basically betrayed her and decided to give a statement to the employer that everything she’s saying is a lie. I never saw any of it by the way. She was always late and all sorts of things that were harmful to my client. And eventually my client saw the witness statement, the declaration, and had a reaction to it. And the reaction was that she decided to go and text this person and to say all sorts of things about why she was so betrayed and how could she possibly do this. And I thought we were friends. And of course, what do you think happened next? I heard immediately from the opposing, A, your client is engaging in witness intimidation. You got to stop this. And by the way, this is going to impact our settlement discussions.

Having the ability to sort of explain to your client that their time of being their own advocate is over and it’s your time to be the advocate. Now, they need to accept, they need to understand and they need to accept the role that they were a victim. They don’t have to have an identity as a victim. They don’t need to think about themselves as a perpetual victim. But in this particular instance, their role is the victim. Your role as the attorney is the advocate. So you are the one that has to go out into the world and try to right the wrong. And their job at this point is to help you to give you the information that you need to be able to tell their story. But to not go out and try to tell the story or to hold people accountable by themselves, you may often find that your clients have an underlying distrust of lawyers.

Perhaps they were in a family law dispute at some point and they really got harm by a lawyer. Sometimes you are the second attorney that they’re talking to because they’ve been burned by their previous lawyer. So to be aware of what their experience with lawyers before has been can also be important. And then finally, and this is the thing that I find really interesting, that when it comes time to finally resolve a dispute, there’s a lot of ambivalence about it. People don’t want to do it even if the terms of the resolution are very good. I had one client who had a valuable case. We got basically an offer to settle the case at above the value that we had initially pegged it at. So it was a very good deal. It was a high six figure offer. It was a very, very good offer under the facts of this case.

What I found when it was presented is that my client didn’t want to do it. She didn’t want to settle the case even though she had gotten an offer that was more than what we had initially discussed that she needed in order to resolve it. And so I started thinking about this question a lot, and I started looking into why it is that I’m seeing this. And she’s not the only one multiple, and this is particularly true, I think in sexual harassment cases, multiple people resisted very good offers of resolution for their case. What I kind of concluded about that is that part of themselves that they’ve has become a big part and pretty central to their identity is the role of a litigant, a role of a person that needs to stand up against their abuser, that became part of who they are. So when they have an offer of resolution and they understand that if you’re going to take money and you’re going to settle a case, that means that your fight is over.

You have to basically let the other side go and move on and go your separate ways. That’s a hard pill to swallow for many people if they’re very used to fighting, especially they’ve been fighting for years to seek justice over what happened to ’em. And so this is something I talk to clients about and the way that they present it. I don’t think that most people understand that this is what’s happening, that this is what they’re experiencing when they’re resisting resolution, they tend to think, oh, the problem with this is there’s not enough money on the table or there’s money on the table, but how will I ensure that this doesn’t happen to other people? Or how can I make sure that the public knows about what happened to me so that there’s real justice? I think these are the ways, and these are the thoughts that people have in order to explain why it is that they’re having so much difficulty accepting that the case may be over.

But at the end of the day, once they make that decision and they do settle, I’ve never seen somebody come to regret it. They always tell me maybe a month later, I’m very glad that I resolved this case. Thank you so much for giving me and pushing me and giving me the advice to do that. So it’s not about the lingering feelings that justice was not served, but I think once they agree to let that part of themselves go, there’s just a huge sense of relief and then they start to understand what it is that was holding them back from trying to resolve it in the first place. I think one of the things that a lot of lawyers are not great at that has been very helpful for me is I do think it’s worth it to everyone to take the time to really educate your client about how the law works so that they can understand the legal distinctions and the differences between what I would call unfair employers versus illegal employers.

So obviously there are actions that an employer can take that are just really unfair, just don’t make any sense. Could be completely irrational, could be terrible for the business, but to help the clients understand what distinguishes an unfair act versus an illegal act in the workplace, I think really helps them not only trust you, but also feel some power in their situation about what they’re doing. And then also, one thing I think is really important to remind your employee clients in order to make sure that their expectations are realistic is to remind them that the purpose of individual lawsuits really aren’t about, they’re not typically about achieving justice outcomes. They’re more about compensating your client for the harm that happened to them and for that to be okay. If people feel guilty about asking for money, they don’t want to be in a situation where they’re telling someone, you have to pay me, otherwise, there are going to be bad consequences that happen.

You’re going to go to trial and you’re going to have to pay more. People really don’t like that. And so you may hear a lot of times, I’m not doing this for the money, I’m doing this for the justice. So my response is always, well, look, I understand that there was an injustice here. However you were harmed. What happened to you was real harm. And one of the reasons we have money and we have course that can award money, is so that when people get harmed, they can get compensated for it. So it’s okay for you to want the money, so I’m probably not going to have the power to stop this person from ever harming another person. Again, that’s just not something I can do and probably not something anyone can do. But what I can do is I can basically create a situation where you are going to be compensated for your harm and you are going to achieve what’s possible in your personal justice.

But I think you should be okay with that because that’s how this system works, and that’s the purpose that we have these laws so that you can get redressed for your harm. So in any legal dispute, in any attorney-client relationship, understanding is probably the first principle. I think it was Steven Covey who wrote The Seven Habits of Highly Effective People. I think one of the habits was first seek to understand then to be understood. So before you start giving directives to your client, trying to give them instruction on how to conduct themselves in a dispute, it does behoove you to spend time really understanding what they’re doing, even if they’re giving you information that’s extraneous as sort of like a practical tip. I’ll offer 15 minute consults when I’m doing intakes to see if I want to take on a potential client. I will tell the person at the beginning, because our time’s valuable, I’ll tell them in the beginning that you have to understand that you’re dealing with a lawyer, and I’ve got what I call lawyer brain.

We kind of have maps in our heads when we’re meeting clients for the first time to try to figure out whether or not this is a dispute that I can help with. So I need to follow my map, and I am very interested in all the details about your dispute if we decide to work together, but today is not the day for that, we will set aside a time to have a longer conversation about that. Is that fair? So your initial contact with a client, maybe a little truncated, and you may not be able to really spend the time that you need to demonstrate your understanding. But there are strategies around that, and I think it’s important to at least at point, set aside a time for a longer conversation so you can really get where your client is coming from. You want to recognize the narratives that they’re telling themselves.

I think developing a way to be transparent about what you’re doing is also something that’s important to client report. That may be periodic updates. It may be calls that you give them. You can maybe set out a roadmap and show them what your process is for advocating for your case, but they want to know where they are. I think there’s a lot of anxiety that comes from not knowing where they are in the process. They benefit from predictable timelines and risk assessments. So to be upfront with them about how long the process may take, I will typically tell them that a lawsuit from start to finish is usually about two years here in California. It can go faster, it can be shorter, or it can take longer just depending on how things go. But that’s sort of generally what we’re looking at. And then just to sort of update your clients as the case goes on, if it looks like it’s going to be longer for any reason, or if you have an opportunity to resolve it faster.

And then it is always, I would avoid moral judgment, even if you’re dealing with someone who committed something as a grievous wrong, to just sort of be impassive about it and to talk about it in terms of what the law requires. Acknowledge that they’re dealing with something that’s complex and difficult and something that they may have never had to deal with before, and that it’s going to be a challenge for them. And you don’t need to sugarcoat it, say, look, this is going to be hard, but I’m here and I am going to guide you. I think it’s also important to give your clients the opportunity and the reminder that they do have a lot of decision making opportunities, and particularly with the strategy. If you’re on the plaintiff’s side, the strategy of how to approach their dispute, whether through filing a lawsuit directly, trying to do a demand letter on the employer side.

Usually if there’s an arbitration agreement, you have the opportunity to decide whether to enforce arbitration, but to give them the opportunity to make those choices, explaining the pros and cons of each choice, but then also securing for yourself in your client relationship that you are the one that’s ultimately going to be making the legal strategic decisions. Although on the day-to-day basis, although the high level strategic approaches is something that they can certainly have input on. So in conclusion, centering humanity in these employment law disputes, I’ve found to be just a very important component to understand how deeply these disputes affect people and to basically keep the humanity involved in the way that you counsel the client. So it’s establishing trust. And once you’ve established your trust, then you’re in a position. Offer recommendations and strategies. If you maintain that trust, it’ll be a lot easier for you as a case can drag on as it tends to. And then to whenever you have the opportunity to demonstrate empathy, understanding, using active listening skills, as well as making some proactive efforts to really understand who your client is and how they got to the point that they’re at.

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