Handbook for Judicial Officers — Therapeutic jurisprudence and the trauma-informed court

Usually I am the first civil barrister that the client has ever met. The client is often nervous, if not terrified. Am I friend or foe? But barriers can be quickly broken down by the simplest acts of humanity. Everyone has something in common with everyone else. You just need to have an interest in identifying what it is. Perhaps it is a football team, a town that we have both visited, or even disdain for Sydney traffic. It only takes a minute to establish one uniting interest, another to chat about it and perhaps even a laugh will follow. For an investment of a few minutes of enjoyable human interaction, trust has been built and the question has been answered. I am a friend.

People who have suffered sexual abuse are, understandably often quite paranoid. But we can work around that. Do I really need to close the door? If I don’t, why not leave it open? The means of escape is then easily recognisable. What about the seating arrangements? An abuse survivor will almost invariably feel uncomfortable if his or her back is to the door. But that is easily fixed. The client should be seated so she or he can see the door. And do I really need to sit at my desk? What message does it send when I choose to place a large slab of oak and leather between myself and the client? In my chambers I have a sofa and an arm chair. This is often where we talk. Now there is nothing between us. Just a couple of people having a chin wag. The solicitor takes notes at my desk. The discussion then flows organically. The difficult history is taken, not painlessly, but without any unnecessary pain.

And what about my room? Is it really a good look for it to be cluttered with the outstanding causes of many other clients? Do cluttered chambers send the message to the client that far from having my full attention, he or she are just another spoke in the legal wheel? I think so. One visibly open brief at a time is a way of conveying to the client that the only thing in the world I care about at that moment is “you”.

We need to dress for the comfort of our clients, not ourselves. What extra piece of information has a suit and tie ever procured from an abuse survivor? What does a client really think when he or she is staring at an Italian suit? I know the answer. The client feels intimidated, often embarrassed and underdressed. An unnecessary barrier has been constructed. So the jacket and tie remain in my robing cupboard and an open neck is presented. Finally, nothing is gained, but plenty is lost by misplaced elocution. People who live in Walgett or Wee Waa rarely use words such as “bifurcation” or “interlocutory” but they very frequently use words like “bullshit” and variants of another word beginning with the sixth letter of the alphabet. These are real words too. They have meaning but more importantly, the clients know what these words mean. And so do I. So why not use these words? Colloquialisms and even expletives are useful levellers and can radically improve the quality of communication in these very difficult cases.

Every new client has a very important story to tell. If there is one cardinal rule in liaising with (or even against) trauma survivors, it is let the story be told and told in full. The client has waited a long time (often decades) for this day to come. So whatever else your day holds, it can wait. It is good practice to allow at least two hours for initial conferences with abuse survivors. There is no point in trying to pack six of these conferences into a day as that will only end with six untold stories and six people let down yet again by an authority figure.

Despite the cocoon now constructed, an adversarial war still rages just metres away in the law courts of Queen’s Square. As lawyers, it remains our primary obligation to extract the best possible outcome for our client. But unless the case actually goes to trial (and very few do) the client should never be stationed on the front line. It is our job to take the bullets. The last thing a trauma survivor wants to hear about is legal machinations. Such matters can be the cause of deep anxiety to the client who will first catastrophise the news before ruminating over it. While a vaccination for jurigenic harm^[3] is yet to be developed, the abuse survivor should rarely have to watch the legal sausage being made.

“Settling” a case for a trauma survivor is conceptually very different to “closing” it. The transfer of a large sum of money from a guilty tortfeasor to a blameless plaintiff is the traditional measure of success. But money alone does not close these wounds and the traditional role of counsel must be flexible to fit the bill. Counsel must be prepared to depart from our lane to deploy the pastoral services necessary to help close the wound. Most institutions employ very skilled apologists who, if the time is right, can deliver a moving address to assist the client moving forward. Then it is time for counsel, the person to whom the client usually looks up to the most, to tell him/her something very important that may not have yet dawned upon the client:

Sometimes words carry great power.

This unique work is not without its unique rewards. To cite one recent example, Tracey^[4] was brutally raped as a young girl by a group of older boys and men and was also raped in her adult life by various partners. She developed an intense, clinically diagnosed hatred of all men. I had worried that I may not be the best fit for Tracey’s case for obvious reasons. Ultimately Tracey’s case was settled at a mediation for a reasonable monetary sum. Then we had a long chat. As Tracey was leaving my chambers, she approached both myself and my male instructing solicitor. She paused, burst into tears and gave us both long, tight hugs. At that moment, I understood, more clearly than at any previous time, what it meant to be “called” to the Bar.