When policies afford legal professionals discretion, they should choose to be trauma informed
Dan Berstein. (Photo courtesy of Dan Berstein)
Lawyers are big on adhering to statutes and caselaw precedents, contractual provisions and the clauses of internal governance documents, employee handbook policies, and terms from codes of conduct. But what happens when there is ambiguity?
No matter what the organization and how extensive its policies are, there will always be gaps. Workplace cultures are defined by how their employees use their personal discretion to navigate these free spaces and bring tangibility to their core values.
The choices of the legal counsel are perhaps the most influential because they direct CEOs, executive directors, boards and practically everyone else to guide them toward actions that are feasible within the law and policy—and away from those that are off-limits. Legal professionals truly are the final word on how companies and nonprofits move forward through those unspecified moments in which the procedures and rules are not totally defined.
Those legal professionals should use that power to become trauma informed. In December 2024, the ABA Law Practice Division and the ABA Center for Professional Responsibility sponsored a wonderful program on “Civility and the Death of the Rambo Lawyer.” Building on years of trends toward addressing problems of incivility and unprofessional behavior within the legal field, the speakers were compelling and offered practical tips to remain civil in the face of discovery challenges, courtroom challenges and other situations.
Aiming for civility and professionalism is a good start, but to truly maximize quality of life, safety and fairness for everyone, we need tools to practice differently: in trauma-informed ways.
In 2023, the ABA published a book called Trauma-Informed Law: A Primer for Practicing Lawyers and a Pathway for Resilience and Healing. This book brought together diverse voices and holistic perspectives to appreciate the ways that trauma manifests in our work and our world and to give legal professionals the tools that they need to respond to it in emotionally intelligent, stakeholder-focused, well-being-promoting and socially impactful ways.
Its fifth chapter focuses on tools for lawyers and practice areas, and it is a great starting point to find ways that professionals can engage in communication practices, investigation processes and disputes while improving everyone’s safety, quality of life and well-being.
When policies afford legal professionals discretion, they should choose to be trauma informed. The ABA presents a host of resources to help people pause and think about the feelings and experiences of others and to help them also practice self-care for their distress. But in a world of urgencies and short attention spans, it can be hard to find time to access these teachings—let alone retain their lessons and apply them in our regular practices.
This is a public relations problem within our field and a problem in our messaging. Trauma-informed practices make life better for all of us because they factor in important human elements to be supportive to everyone, regardless of whether they are actively experiencing problems.
Trauma-informed decisions prevent escalation. Taking that pause to be trauma informed stops legal professionals from making hurried, panicked mistakes that inadvertently hurt the people they serve and cost them time, stress and money.
Every day, legal professionals are interpreting policies and directing staff or clients as to what is OK to do and what is off-limits. Legal professionals are the world’s guideposts of what can and can’t be done and what should or shouldn’t happen. They are the deciders of how to fill in all those missing words that aren’t specified in the documents that define the systems that we live in.
Their discretion matters. They should take advantage of the ABA’s resources to learn how to be trauma informed when they make these important choices.
Dan Berstein is a mediator living with bipolar disorder who uses conflict resolution best practices to help people have empowering mental health communication while preventing mental illness discrimination.
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