By Luis Lara-Palacio, 3L
References to trauma-informed lawyering are becoming more common in the legal profession. The underlying principle of a trauma-informed approach requires lawyers to be aware of how trauma may impact their clients and how they interact with the legal system, to adapt how they work with clients, and to be conscious of the impacts of vicarious trauma. It requires lawyers to take active steps to prevent re-traumatization and minimize harm. In 2021, then Class Action Clinic student Michael Burns looked at elements of a trauma-informed approach used in the settlement approval motion decision in the Ontario Crown Ward Class Action (Grann et al. v. HMO). Three years later, it is time to look at how trauma-informed lawyering has evolved through the lens of one recent case: S. v. Ukraine International Airlines JSC (Ukraine Airlines).
S. v. Ukraine International Airlines JSC
On January 8, 2020, flight PS752 departed from Imam Khomeini Airport in Iran. Shortly after take-off, the flight was hit by two missiles fired by the Iranian Armed Forces, killing all 176 passengers and crew on board. In Ukraine Airlines, the Ontario Superior Court was tasked with determining whether Ukraine International Airlines breached their standard of care in allowing PS752 to take off. The court found the defendant negligent and thus ruled that liability under the Montreal Convention was unlimited.
Justice Akbarali presided over the case. She recognized the sensitive nature of the case and took active steps to adopt a trauma-informed process. That process is described in detail in her reasons for decision and summarized below. As we will see, Justice Akbarali has set a standard for how we can employ effective trauma-informed processes in the future.
Conceptualizing Trauma
Before discussing the trauma-informed guidelines, it is important to first define the terms “trauma,” “trauma-informed process”, and “trauma-informed lawyering”. These terms are closely related, but each have unique characteristics in practice.
Trauma is defined by the context in which it is used. Trauma often refers to both physical trauma (a grave bodily injury) and psychological trauma (exposure to a catastrophic event). The DSM-5 introduced changes that narrowed the scope of what is considered trauma, requiring “actual or threatened death, serious injury, or sexual violence”. Exposure to trauma does not require direct experience, it can also include witnessing the event in person or learning that the event happened to a close family member.
In the context of trauma informed lawyering and processes, the focus is on psychological trauma. Trauma in this context can be defined as a sudden, catastrophic event that has had a substantial impact on an individual that is more than just mere discomfort. Using this definition, class members in Ukraine Airlines can be said to have experienced trauma.
The above definition is not one that has been accepted or even explicitly acknowledged in jurisprudence of class actions. For example, the Indian Day School Settlement (IDSSA) stated that the principles governing the claims administration process included an intent to “mitigate any likelihood of re-traumatization through the Claims Process.” However, the court in McLean v. Canada (AG), 2021 FC 987, citing this exact section in the settlement agreement, refused the plaintiff’s motion to allow class members the ability to change the level of their previously filed claims. The court failed to fully appreciate the need for progressive disclosure and in doing so only furthered the potential for re-traumatization. A similar pitfall was found in the subsequent decision in McLean v. Canada (AG), 2023 FC 1093.
The question then is what was meant by “trauma” and “re-traumatization”? Without clear guidelines of what these terms mean and the role they play on class members there leaves open the chance to create further harm. Without an explicit definition, we run the risk of compromising the significance of these terms.
The IDSSA is not the only instance of a failure to define “trauma” in the class action sphere. The Indian Residential Schools Settlement Agreement (IRSSA) has no mention of “trauma”. The claims process in the proposed settlement in Grann was touted as being meant to avoid re-traumatization, yet provided minimal explanation of what this would look like which was confirmed by the sixty objectors who spoke at the hearing.
Ukraine Airlines is unique in that Justice Akbarali takes the time to describe what trauma-informed processes means. She writes:
First, it is important to describe what I mean by a trauma-informed process. It is not one that aims to heal the trauma that participants in the process have experienced. It is not about manners or kindness. It is about adapting our processes in a way that seeks to minimize the trauma that the legal process itself can create, and it is about understanding how a person’s trauma might inform or affect their interactions with the legal system. A trauma-informed process can thus operate to remove barriers to just outcomes, and enhance public respect for, and the legitimacy of, the administration of justice.
This definition is clear about what the goal of adopting trauma-informed process is: to minimize harm and in order to do so, safeguards must be put into place that re-shape how the usual litigation process functions. This differs from trauma-informed lawyering, which is about how a lawyer can adapt their litigation strategies and interactions with their client to appreciate the trauma that they have experienced. Trauma-informed processes in this context addresses structural violence directly. Rightly so, trauma-informed processes in the legal system requires trauma-informed lawyering. This is why Justice Akbarali’s and counsel’s commitment to truly appreciating the trauma suffered by the class in Ukraine Airlines sets a good example for future court proceedings.
Trauma-Informed Guidelines
In advance of the trial, counsel prepared and agreed to Trauma-Informed Trial Guidelines that outlined how the trial should proceed.
First, counsel agreed to prepare witnesses and observers ahead of time for the potential of re-traumatization and vicarious trauma.
Second, witnesses and observers were encouraged to view the resource material prepared by a trauma specialist with respect to what re-traumatization and vicarious trauma are and how to best cope and support others. There were three guides prepared: for claimants, for counsel and court staff, and preparing for trial.
Third, counsel agreed to announce what will be covered on each day in court so observers could make an informed decision on whether to attend. Counsel also agreed to announce when an examination could cause an emotional response and before any multimedia would be displayed.
Fourth, witnesses and observers would be reminded they can take a break at any time.
Fifth, counsel would have trauma specialists available by phone for anyone who wanted support during the trial.
Similar to Grann, Justice Akbarali addressed the family members and participants directly at the outset of the trial acknowledging their loss and suffering. She reminded them that they were free to take breaks and indicated they should not be embarrassed if they cried in the courtroom. During the trial she reviewed with counsel where they were in the process and what evidence was expected next. Additionally, any questioning of family members who had had lost someone in the tragedy was very limited to minimize the need for evidence to be given orally that could be unduly traumatic.
One major improvement was the availability of a trauma specialist to all participants. A trauma informed approach necessitates an attempt to prevent re-traumatization. While proactive steps should be taken, the reality is that it is very difficult to account for every potential trigger or reaction. It is equally important to have measures in place that address when re-traumatization does occur to minimize harm.
Justice Akbarali acknowledged that the process they employed had room for improvement, but that the steps they did take were infinitely better and more humanizing than what otherwise would have occurred. This comment acknowledges that there are many aspects and approaches to a trauma informed process. At minimum, a trauma informed approach requires willingness to adapt to recognize and adapt to the needs of the client.
Vicarious Trauma
Part of a trauma-informed approach includes recognizing the potential for vicarious trauma or in some cases, post-traumatic stress disorder (PTSD). Justice Akbarali recognized the potential for the usual trial process to retraumatize those present at the trial who lost loved ones in the crash and those who witnessed the tragic event. Additionally, she expressed her concern for the potential of vicarious trauma for others involved in the trial process including counsel, staff, and herself.
Vicarious trauma has been understood to occur when individuals are exposed to others’ trauma, often on a frequent basis. While there is some controversy over clinical diagnosis of trauma and vicarious trauma, there is no question that long-term exposure to violent and/or graphic materials can have adverse physical, emotional, and behavioral effects. In fact, included in the changes to the definition of PTSD in the DSM-5 includes experiencing repeated or extreme exposure to aversive details. Those working in professions that frequently expose them to other people’s trauma are at a higher risk, including social workers, therapists, and first responders. Lawyers, especially those working in client-facing, public interest roles face a unique combination of factors that make vicarious trauma more likely.
Conclusion
Justice Akbarali’s recognition of vicarious trauma indicates a shift in the legal profession. Her explicit recognition of vicarious trauma to all of the individuals involved, as well as herself, is an important signal to lawyers and the legal profession as a whole to consider trauma-informed approaches in mass claims.
Class actions are an important way to address some barriers that impede access to justice. There are unique opportunities to consider how a trauma-informed approach can be adapted in class action litigation.
For more information on Trauma-Informed Lawyering, please click here.
