What You Need to Know About Trauma-Informed Lawyering

Episode Notes

Transcript

[Music]

Molly Ranns: Hello and welcome to another edition of the State of Michigan On Balance Podcast on Legal Talk Network.  I’m Molly Ranns.

JoAnn Hathaway: And I’m JoAnn Hathaway.  We are very pleased to have Alexander Rusek and Aylysh Gallagher join us today.  Alex is founder of Rusek Law in Lansing, Michigan representing clients in complex, civil and criminal matters.  He has represented hundreds of survivors of sexual abuse including survivors of Larry Nassar, Robert Anderson, clergy members and others.  He serves as a Director for The Army of Survivors Inc., a Survivor founded and led nonprofit that brings awareness to and advocates against sexual abuse in sports

Aylysh is an Assistant Prosecuting Attorney for the Ingham County Prosecutor’s Office in Lansing Michigan where she specializes in prosecuting matters involving intimate partner violence in her role as a felony domestic violence and sexual assault unit chief.  She is the immediate past president of the Ingham County Bar Association Young Lawyers Section and currently vice president of the Mid-Michigan Region for the Women Lawyers Association of Michigan.  She has trained prosecutors, police officers and others both in Michigan and nationally and with that, could you share some additional information about yourself so with our listeners and Alex, let’s start with you.

Alexander Rusek: Thank you very much JoAnn and thank you very much for having us today.  A little bit of background about myself, I’m a 2013 graduate of the Michigan State University College of Law and been practicing in Michigan since that time.  A lot of my practice is the intersection of criminal law and civil litigation and as you mentioned before, that includes representing hundreds of survivors including in the Larry Nassar litigation, the Dr. Robert Anderson litigation and also survivors who were abused by clergy and in the Boy Scouts of America and other situations.  I also have experience representing criminal defendants and I also have experience in a mix of other practice areas.

JoAnn Hathaway: And Aylysh?

Aylysh Gallagher: Yeah, it’s great to be here.  I’ve been licensed in Michigan since 2013 as well and I started at Bingham County Prosecutor’s Office in June of 2014 after doing a bit of criminal defense for a year and once I started at the Prosecutor’s Office, I was just assigned general docket and it just became really apparent that I felt that that crimes with regards to intimate partner violence needed more attention and specialized maybe knowledge and just for really important so I kind of shift in my whole career and for the last seven years, I’ve been prosecuting just intimate partner violence recently, with regards to becoming a Unit Chief, I’ve now taking non-intimate partner violence adult sexual assault cases as well as the other cases I was previously doing.

JoAnn Hathaway: Thank you both so much for being here.  I first heard about the article you had written a member of our committee had sent it to me, and I thought it was so well written and I knew it would be a great topic for the show today.  So, thank you for joining us.  Aylysh, let’s start with you.  The article I referred to you and Alex recently authored Trauma Informed Lawyering for the State Bar of Michigan’s Litigation Section Journal.  Can you give us a brief overview of what trauma-informed means?

Aylysh Gallagher:  Trauma informed really means, you know, understanding and appreciating the impact of trauma and then also realizing that the impact of trauma can be seen and manifest in many ways and then that allows us to minimize re-traumatization when we’re dealing with (00:04:13) and also support heal(ph) and really focus around the resilience and well-being of a client or survivor.  I, forgive me I still use victim a lot because it’s just the prosecutor fall back, but yeah, and just basically understanding that this is very prevalent and so even if we don’t think we’re seeing it, we’re probably just not either opening our Eyes enough or maybe asking the right questions to then, be able to help empower people going to the system.

JoAnn Hathaway: Alex, where did the trauma-informed concept come from and actually, how does the concept fit into the legal field?

Alexander Rusek: Thank you JoAnn.  That’s a great question and it is both a philosophy and a skill set that’s applicable to many different area, not just the legal field.

(00:05:05)

My understanding is that back number of years ago, really, this idea of trauma-informed came from early rape crisis center and domestic violence movements and it’s been just expanded upon by researchers in a number of different fields.  So, of course, you have the legal field but also you have social workers, you have first responders in the medical field.  All these professionals are dealing with trauma in different ways and the trauma-informed idea is this set of skills that we try to apply.  There’s no skill set.  There’s no hard and fast rules but there are some concepts that are very applicable and that are applicable to the legal field.  Some of those they’ve been called the four R’s of being trauma-informed.

One is realizing the widespread impact of trauma, recognizing the signs and symptoms of trauma response including knowledge about trauma and incorporating that knowledge in the policy procedures and practices.  And also resisting re-traumatizing survivors and we can incorporate all of those into the legal field and how we work with our survivors and clients and as Ms. Gallagher says, sometimes we still say victims.

One of our big concepts as trauma-informed attorneys is we want to move away from this idea that we’re asking our clients, what’s wrong with you?  And instead, what we want to ask is, what happened to you?  There’s no, as I said earlier, there’s no single checklist or techniques, but being trauma-informed, it requires constant attention, awareness, sensitivity, and it really does require this skill set to be implemented in an organizational level if there’s going to be any real change.  And some of those concepts that we can Implement again, they include making sure that we’re creating a safe environment for survivors, that we are being trustworthy and transparent or we’re speaking with survivors, that we can set up systems for peer support, that we want to create and foster environment that’s collaborative and it’s mutual.  It’s not a top-down or authoritative type environment and we want to make sure that we’re giving survivors a voice, a choice and empowering them to use both of those.

And also more recently, and I think it’s becoming very important even more so is that we look at the cultural historical and gender intersections when we’re talking about trauma and how those impact our different communities.  At the end of the day, what we really want to do in the legal field is make sure that we’re recognizing trauma and we’re doing our best, not to exacerbate the harm that our clients have had, and that means that we’re not re-traumatizing them.

And we can talk about a little bit more about what systemic change means.  Both Ms. Gallagher and myself, can talk about what that change means particularly in the criminal justice system as a whole.

Aylysh Gallagher: And I think it’s important to remember, just bouncing of what Mr. Rusek just said, you know, when we’re talking about trauma-informed lawyering, we’re understanding that trauma can be in a client or a client or someone’s experienced it, but we’re not by any means saying that defines them as a whole.  So I just think it’s really important because obviously right now, this what we’re talking about.  But really we’re talking about making sure we’re person first and just opening up our minds to what they’ve experienced and how we can better assist.

JoAnn Hathaway: Absolutely!  And I can imagine that for an attorney who’s experienced their own trauma, you know, that would certainly impact their work with a client as well who’s experienced trauma.  Aylysh, how have you incorporated trauma-informed principles into your role as an intimate partner violence prosecutor as you were talking about earlier?

Aylysh Gallagher: I’ve really thought about this because I honestly think that the trauma-informed lawyering and this is I guess specifically as it relates to prosecution in the criminal justice realm, we really can take it all the way from the very beginning, right?  When we’re interviewing a victim, we train police on it and then it goes through the prosecution charging phase, right, where traditionally, there were a lot of non-intuitive behaviors and a lot of those were just trauma responses and once we can learn that the neurobiology, the brain and we learned that, oh, okay, these aren’t non-intuitive, these are actually very common when you experienced trauma or, you know, trauma exposure over long periods of time.  So I think that that also lets us when we’re charging and issuing cases, really understand the different things that a victim is saying in an interview and then prosecute it whereas maybe traditionally not knowing those things would make a prosecutor think, oh that’s reasonable doubt or oh, I don’t know how I’m going to wrap my mind around this.

(00:10:04)

And then as far as actually having a case, I think that, you know, I’m constantly trying to be trauma-informed and victim-centered, not victim-focused because I want to focus on the offender, that’s who did something wrong, but I try to be trauma-informed by understanding the resources out there.  I mean, as an example, I talk to women every day and what I hear a lot is an apology for how they’re able to explain the experience that they’ve had because they, you know, they’ll say, oh, I’m sorry, I can’t go on order or oh, I’m sorry I think I left that out before.  I’m really sorry.  And it’s no, that’s perfectly normal.  And honestly, it makes me feel as though your credibility is even more so.

So also understanding that victims of trauma is not everyone has fully processed even how that done plays out in their lives.

JoAnn Hathaway: Thank you Aylysh.  Before we move forward, we are going to take a short break from our conversation with Alexander Rusek and Aylysh Gallagher, experts on trauma-informed lawyering, to thank our sponsors.

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JoAnn Hathaway: Welcome back.  We’re here today with Attorneys Alexander Rusek and Aylysh Gallagher discussing trauma-informed lawyering.  I am really happy to hear that trauma-informed lawyering has come into the forefront.  For many years, I worked in law firms and for insurance carriers, dealing primarily with medical and legal malpractice actions and these are only two examples of case types that I think are fraught with trauma for both the plaintiff and the defendant.  So Alex, you have experience in criminal and civil litigation.  Can you explain how trauma-informed techniques can be implemented in different practice areas?

Alexander Rusek: Absolutely JoAnn.  And as you just said, being trauma-informed is not just limited to being a prosecutor who’s working directly with survivors of violence.  That’s not limited to just working with survivors of sexual abuse in civil litigation such as plaintiff litigation which is a large part of my background.  But it really comes in to pretty much every area of the law where you’re representing a client who’s an individual person.  If you think of family law, you also often have a mix of the civil and criminal justice systems where if say, you’re representing a woman who’s being divorced, she may be a survivor of domestic violence in that relationship.  She also has certain concerns that relate directly to her children in those proceedings.  So I think family law is a field that you always have to be aware of the possibility that someone suffered trauma before coming into your office.

In my practice as a criminal defense attorney, I find that being trauma-informed is also very important.  I’ve had the opportunity to represent people who were ultimately accused of doing something that they did not do.  In one instance I can think of, I represented a woman who was accused of domestic violence and in fact, she had been the ones at the hands of the offender for many, many years.  And the one time that she defended herself, of course, he turned that around on her.  But being there to listen to her when I got that call at the first, understanding what had happened, I think really made our attorney-client relationship what it was and allowed me to represent her the best that I could.

Of course in the personal injury context, you’re going to have people who have suffered really great injuries or maybe they saw a loved one of theirs suffered these injuries.  And I think that, you know, from day one that first initial call that you receive, you really have to be on the lookout for, okay, this is someone who may have experienced a traumatic event and they’re still going to be suffering from the consequences of going through that experience.  So, some of the things that I try to look out for when I’m talking to a client or a potential client who has suffered trauma is a couple of different things and some of these are non-intuitive as Ms. Gallagher talked about earlier.

(00:15:03)

You know, it’s not often where someone just going to tell you, I need you to be trauma-informed because I suffered something.  Can you please help me?  That’s not what’s going to happen.  So we have to be on the lookout.  Sometimes your client is not going to be able to describe the events in a chronological matter because our memories, they’re very complex, and they can be scattered and trauma has an effect on those memories and how they’re saved.  So, you can’t expect someone to come in, the ability of say, “This happened at 1:00 and then 1:15 and 1:30.”  Sometimes, the survivor, they may seem like go off on a tangent or something may come up that’s not directly related to what you’re talking to.  But again, we have to make sure that we’re understanding that memories work in really odd ways and it’s not unusual to allow — and what we should be doing is allow a survivor to tell their story, listen actively to that and ask follow-up questions are non-judgmental and allow that survivor to relay their experience in a way that makes sense to them, in a way that’s safe, that’s non-judgmental.

You may also have survivors who talk with you and again, the non-intuitive kind of response.  They may seem detached or sometimes the chemicals in our brain produce responses really not intuitive.  So may be giggling or laughing about an experience that’s very traumatic, but that’s the way that it’s being processed at that time by those survivor.  Other times, they may not want to talk at all.  They may be absent during that meeting and that could, of course, be a sign that the survivor is disassociating from the experience at that time and as practitioners, we have to be aware of that.

I’ve also found in my experience that the first time that you talk with a survivor, you’re not going to get the entire experience in novel form.  People remember things differently and there’s going to be a period of time where that survivor is going to remember different parts of that event.  Especially in the case of, let’s say childhood sexual abuse that occurred years or decades beforehand, then those details, they’re not just going to be right at the forefront of someone’s memory.  They may be blocked out there.  There may be something that they talk about or work through that brings those memories back to the surface over time.  So the first interview, you’re never going to understand everything, you can’t expect that.

Really, it’s important to recognize that you may never be able to have a survivor recognize all the details of what happened simply because of that trauma has impact on a person.  I found that there are a couple of ways that we can assist our clients as they’re relaying this trauma and really, they are reliving it when they tell it to us every time.  And as Ms. Gallagher explained a little bit before, if you’re involved in the criminal justice system as a survivor, you’re going to probably recount your story maybe half a dozen times before you get anywhere close to a courtroom from that police officer who’s the first responder asking “What did you do?” you know instead of what they should be asking of “What happened to you?”  Were are you able to tell me, were you able to remember about your experience, to being interviewed by a prosecutor who Ms. Gallagher’s help has hopefully received some trauma-informed education in the past and that at preliminary hearings were that survivor may be testifying.

But throughout this process, I think that we do have to make sure that we’re validating the survivor’s feelings.  That we’re trying to keep them informed as much as possible about what’s happening and what we expect to happen, that we want to be there to recognize that if there are other coping strategies that may be available and that includes referrals to the appropriate professionals.  You know, we have the counselor in our titles but certainly we don’t have that expertise that’s needed.  So having a good stable of experts who hopefully if you are in a niche practice area, you know, someone who maybe works specifically with childhood sexual abuse survivors, that’s great to have those kind of referrals.  Also, we want to make sure too to be on the lookout if a survivor is using alcohol or some other kinds of drugs as a coping mechanism to be aware of that.  And again, to make sure that we have resources available to them to help through these times of crisis.

Aylysh Gallagher: I think going up for that some practical examples of how, you know, you could reduce maybe someone’s anxiety.  So if you’re setting up a meeting, making sure that you’re saying exactly what the meeting is about, because maybe that survivor thinks they’re going to have to talk about that experience.

(00:20:02)

And that could be a whole different kind of anxiety-escalating process.  And I know within my own work for instance, if it’s a jury trial in Circuit Court, I always talk to someone about different ways that I could, I call it make it less awful, but basically really making sure we understand like the level of anxiety.  If they need a break, what does that look like?  If they’re shutting down, how are they going to tell me that so I can try to help and advocate and say, “Hey, you know, can we have a break?”  As a profession?  Going away from that like provided that person tell me this and asking like ourselves as professionals, what can I do to make that person, that experience something traumatic feel safe enough and trust me enough to share something awful.  You know, and so really, as the professional trying to continue to hone our skills to make sure that we are non-judgmental, not blaming and also have the best ways to ask those questions just like Mr. Rusek then, you know, what are you able to share about the experience?  It’s non-judgmental and doesn’t assume that someone should remember all the things because that’s just not.  That’s not how a trauma looks like.  Trauma doesn’t Look like somebody reading a manifesto.

Molly Ranns: Absolutely.  You know, as a therapist I always find it ironic and I think there are so many similarities between being a clinician and being an attorney and I often say that one of those similarities is that we are really both tasked with sitting with people’s pain, but my entire education is about how to do that.  And so I’m so grateful you are both here today because I know people are going to get a lot of benefit from hearing the techniques that you’ve been describing.  In utilizing those techniques Aylysh, what benefits have you seen by employing them?

Aylysh Gallagher: I think one of the biggest benefits is in a criminal realm, having somebody come to court to look an abuser or someone who’s actually told to them in the face and have to say what they did.  It’s not a small task.  So I think practically speaking, what I’ve seen play out is, you know, building rapport that then can, you know, support a victim in court, and try to minimize that re-traumatization as much as possible whereas some of, you know, maybe back when we were doing the old kind of old prosecutor ways, we wouldn’t get that same person to come to court because they’re already blaming themselves and now they think this prosecutor sitting in some office blaming them and, you know, obviously, the judge will probably blame them and it goes into a whole kind of, you know, tangent.

But I think another great example of just being able to get more facts and more participation with survivors, you know, we used to teach police like, okay, we want to know the where, what, how, why, when and so you know the old kind of traditional nothing but the facts ma’am.  No, no, no.   Go in order, first to last.  That’s what we’re trying to go away from and so as we go away from that and as we let people start where their start is and we’re non-judgmentally able to listen to them, we’re really getting more of the truth, right?  We’re getting some more, they’re sharing more, they’re opening up more and then the likelihood they’ll participate more really increases especially when you know the resources in your community and know the things that you can’t do, right?  So I always like to know all the other people that can help the victims I work with because I realize I am only one person with one set of knowledge so.

Molly Ranns: And this is for either of you.  We are hearing a lot about civility in the legal profession today thankfully.  In connection with that, how can you deal with opposing counsel who is not being respectful of your client and actually causing further trauma to them and that may be a difficult question because maybe I mean, obviously, you don’t have control over opposing counsel, but is there any way that that can be addressed?

Aylysh Gallagher: I mean, first thing I think of is really making sure that people are informed, right?  So, a lot of times, we are not the greatest at giving someone a very informed factual– so they can be the decision maker of their own life.  So I usually will sit down with someone before a court and say “I’m going to use the word victim.  I know your name is Amy.  I’m just doing that because the judge that’s how we talk.”  So I’m sorry if that’s going to be — you know and sometimes they do say, “Yeah, that would have pissed me.”  Sometimes they say, “I don’t even know why you’re telling me this.”  it’s a host of things but just so they’re informed about what might take place.  I mean, I do the same with cross-examination, you know.  You’re going to be asked questions.  This is what I usually see and it’s just all of the most kind of just victim-blaming behaviors that defense attorneys that’s what they are going to be talking about.

(00:25:00)

So I try to give people a full informed as best I can so they can make decisions that impact their own life because I think that’s what respect looks like.

Alexander Rusek: I think Ms. Gallagher just made a great point that it really does start with our preparation of our clients of what they can expect.  There’s only so much we can do sometimes to direct or redirect the other side, but if our clients know what to expect and have that heads up, so they’re not blindsided, then I think that goes a long ways and of course, we have civility principles that we should all be recognizing and implementing in our practice.  And if it does rise to a level where we need to have judicial intervention or a sidebar, then we have to be prepared to do that, to stand up for our clients and say this is a professional setting.  This is contested of course, but there is a proper way and not proper ways to proceed.  So having that willingness to step in and bringing the judge or have a sidebar with the judge depending on the situation, I think is really critical for us to be on the lookout for.

Molly Ranns: Alex, can you explain to our listeners what secondary trauma is and why it’s important for attorneys to be vigilant.

Alexander Rusek: Yes, secondary trauma which is also known as vicarious trauma and there’s been some other names for it used over time, is this idea that when we bear witness to the trauma of others, that is going to have a significant impact on us personally and our ability to represent those clients in the future.  So it’s going to be a different experience for every practitioner but Sometimes, the secondary trauma, it can leave us feeling overwhelmed or exhausted, frustrated, angry, maybe pessimistic.  It may even be feelings of helplessness or hopelessness when we see so much wrong going on in the world and we start to understand what the survivor that we’re talking to has really experienced and how much it’s hurt them.  And these feelings over time, if they’re not addressed, they can result in compassion fatigue and other ill effects on us as practitioners and that can lead to burnout.  It can lead to depression, some of those other feelings that I talked about.

So we really have to be on the lookout for some signs that maybe we are experiencing secondary trauma, because we’re trying to help so much.  And there’s some great resources out there that will help identify and also, help us on our own path of self-care to make sure that we can keep representing our clients in the future and we don’t have an early exit.  So the National Wellness Institute, they publish a wheel(ph) that is The Six Dimensions of Wellness that has a great way to look at some of these different aspects of secondary trauma.  And that’s looking at the emotional side occupational, physical social, intellectual, and spiritual aspects of our well-being.

And there’s also a number of great books out there as well that give us some, one insight into how to identify this secondary trauma that we may be experiencing and how to engage in that self-care.  One book that I really like, it’s called ‘Trauma Stewardship’ and ‘Everyday Guide to Caring for Self While Caring for Others’.  That’s by Laura van Dernoot Lipsky and Connie Burk.  In the article that Ms. Gallagher and myself wrote, there’s a couple of other great books in there and this isn’t just resources that are for attorneys but their focus on all kinds of people who experience secondary trauma.  So first responders, of course, attorneys are included in there who are working with survivors, but really these principles are multi-dimensional.  They go across all kinds of different areas,

Molly Ranns: Excellent!  And before we wrap up today, for either of you are there any other resources or last thoughts that you want to share that attorneys could use to learn more about being trauma-informed?

Aylysh Gallagher: Yeah, I guess as the last kind of tools that I’ve used, I did a mindfulness stress reduction.  It’s like a 12-week class to try to then implement smaller everyday things into my life to I guess I know that we refer to it as self-care, but I think that really, as lawyers, we’re kind of brought up to, you know, work long hours, keep your head down, email or write and we’re kind of not really taught, wow, what are we every day being exposed to and I was telling Mr. Rusek becoming a supervisor like the supervisor secondary trauma was something that really, really caught me off guard–

(00:30:04)

–because I wasn’t only listening and reading about awful things that were happening to victims that I was reviewing cases, but it was, 20 to 45 rapes or domestic violence felonies and I really had to take a break and learn better technique.  So I think like the amount of sleep and then preparing your food and things that kind of sound, I don’t know, traditionally like, okay, sleep, I get it.  But it really is like taking a note of what you’re doing every single day and how can you even in a small way, put some relaxation or some space in between what your kind of inundated with daily, I guess in my personal kind of capacity.

Alexander Rusek: Those are some great tips from Ms. Gallagher and I can highly recommend if you’re able to also go to one of her trainings to learn more about being trauma-informed and also self-care tips.  For attorneys that would like to learn more about implementing trauma-informed principles in their practice, the National Center on Domestic Violence Trauma and Mental Health has started the trauma-informed legal advocacy project.  There’s the trauma-informed lawyer podcast that’s available online.  Ahe American Bar Association Law Practice Management Section is also also going to be publishing a book in the near future that’s likely to be called a trauma-informed law, a primer for the lawyers in practice and earlier, I mentioned some of the resources for secondary trauma.  And then, finally a little bit of a self-plug here, but in organization that’s near and dear to my heart, The Army of Survivors which was started by and is led by survivors primarily of Larry Nassar.  They’re going to be a guide for the lawyers who are working with Survivors by the end of the year and I’d highly recommend both for that information and for other resources, for survivors and attorneys that you visit thearmyofsurvivors.org.

JoAnn Hathaway: Well, it does look like we’ve come to the end of our show.  We would like to thank our guests today, Alexander Rusek and Aylysh Gallagher for a wonderful program.

Molly Ranns: Aylysh and Alex, if those listening have questions about the information you shared or if they would like to follow up with you, what is the best way to reach you?

Alexander Rusek: The best way to reach me would be to go to my website, that’s ruseklaw.com and that has all my contact details there.

Aylysh Gallagher: And for me, I think the best way to reach me would be my email [email protected].  I’m constantly checking that so probably the best.

Molly Ranns: Thank you both again.  This has been another edition of the State Bar of Michigan on Balance Podcast.

JoAnn Hathaway: And I’m JoAnn Hathaway.

Molly Ranns: And I’m Molly Ranns.  Until next time.  Thank you for listening.

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