The Legal Implication of Psychological Trauma
Originally published in S.C. Trial

The usefulness of information regarding the nature and level of psychological damage in personal injury and workers' compensation cases is well established (Barton, 1985). However, some attorneys seem reluctant or are unaware of how to assess and utilize the impact of trauma in these cases. The purpose of this article is to review basic information regarding psychological trauma, suggest a method for a "quick and dirty" assessment of clients surviving potentially traumatic experiences and present strategies for including psychological damage in cases.

Motherway (1987) has reviewed the history of our understanding of stress and post-trauma responses and their use in the law. While psychological injury was recognized for some time, it was not until the publication of the Diagnostic and Statistical Manual of Mental Disorders that Post-traumatic Stress Disorder (PTSD) was viewed as a separate and distinct emotional disorder. Included in the manual were specific guidelines for the types of experiences that might be considered traumatic as well as the symptoms that normally follow exposure to these incidents. Very soon after the publication of DSM-III, the PTSD diagnosis began being used in the courtroom in personal injury, workers compensation and criminal proceedings. DSMIII-Revised (APA, 1987) is even more specific in describing the types and characteristics of traumatic events that cause psychological damage.

Post-traumatic stress disorder is the normal and expected response to traumatic life events. A traumatic event must be "outside the range of usual human experience and that would be markedly distressing to almost anyone" (APA, 1987). Traumatic incidents usually possess at least some of these characteristics i.e. life threat, loss of another person, relationship or security, sudden onset, exposure to death and destruction, and moral questions about the event or actions taken. At least some research suggests that man-made traumas are more likely to cause severe post-trauma responses. Among the incidents that commonly result in post-trauma responses are sexual assault, kidnapping, armed robbery, the death of a child (especially if witnessed by a parent), injury or amputation in work or duty-related incidents.

Symptoms of PTSD generally fall into three general categories:

• Reexperiencing component including thoughts of the event that are difficult to control, flashbacks, nightmares, hypervigilance, and increased distressed when exposed to reminders of the event.

• Withdrawal component including numbing, depression, withdrawal from friends, family and important activities and efforts to avoid reminders of the incident.
  
  
• Other symptoms including sleep difficulties, memory loss, exaggerated startle response and anger or irritability.

Since research suggests that as many as 80% of those traumatized experience a post-trauma response, attorneys should routinely assess the level of trauma in an incident and any psychological results. Such an effort will not considerably add to the length of an initial meeting with a new client but will provide valuable information concerning psychological damage and effectiveness as a witness. It is important to remember that many survivors of trauma underestimate the impact of an event and the psychological results and it is not sufficient to ask the client their perception of the magnitude of the event. This brief post-trauma assessment should include a judgment of the potential traumatizing impact of the incident and any reported symptoms of post-traumatic stress disorder. The two step assessment process is as follows:

First, make a judgment as to the probability that this event was traumatic to the individual. Man-made traumas generally cause more emotional difficulties. Listen most carefully for the client's perception of life threat to themselves and others, direct exposure to death or injury ("blood and guts") and questions concerning actions taken or not taken during the incident.

Second, ask the client to describe changes they might have noticed in themselves since the incident. Listen for the symptoms described above as well as statements such as, "I'm just not myself," "I don't feel normal" and "I might be losing it (going crazy)."

In many cases, you don't have to be a mental health professional to make a general conclusion regarding the traumatic potential in an experience. If the event meets the criteria for trauma or life disruption symptoms are reported, evaluation and treatment should be considered.

Survivors of trauma may be difficult clients for attorneys. First, as these individuals may be experiencing intense psychological distress and what appears to be mood swings. At times, it may seem as if you are speaking with two very different people who have different interests and agendas. Second, many are quite intense to the point of obsession concerning their experience and the court actions they are taking. Remember, the traumatic incident has very likely completely changed this person's life and they are struggling to retain some degree of control. Their contact with an attorney may be one of their major strategies for doing so. Survivors may mistakenly assume that their legal counsel are able to put 100% of their energy into this case. Calls that are not returned immediately or letters responded to may be interpreted as a lack of concern by some survivors. Third, many survivors of trauma don't utilize the court system in a way that attorneys might be accustomed. While the legal system commonly works to alleviate damages through a monetary settlement, this may not be be consistent with the purposes of the traumatized client. As often as not, their main interest is "fairness," "sending a message to the community" or working to prevent a recurrence of the event for another individual. Several of my clients have not accepted large settlements in order to have their "day in court." The most effective way to prevent survivors from becoming extremely frustrated with the legal efforts on their behalf is for attorney to understand the magnitude of the change these people are experiencing and acknowledge their agenda for the court action.

There seems to be a general consensus concerning the presentation of psychological trauma cases.

1. Pre-incident history, lifestyle and any preexisting conditions. In order to show that the incident caused the psychological difficulties, it is important to have information concerning life before the trauma. Some victims have mental disorders before the incident in question and this should be documented. As in other cases, the plaintiff is taken as he is found." If not other disorders exist, this should also be noted.
2. Examination of the incident. It is up to the attorney to depict the incident in question as a traumatic event. Remember, to meet DSM-IIIR criteria, the incident must be "outside the range of usual human experience." The traumatic event should be described in enough detail so that it is clear that this event fits this criteria. Information from the police, witnesses, news reports, etc. can strengthen this point.
3. Post-trauma consequences. Along with your expert who has completed the post-trauma assessment, consider finding family members, friends or employers who can testify to the changes in the survivor. In addition, any physical symptoms that have developed as a result of the psychological trauma and can be documented by standard medical measurements will be helpful.
4. Treatment and prognosis. Outline the methods and results of treatment as well the experts opinion concerning prognosis. It should be noted that while trauma survivors can make significant progress in treatment, most do not reach a level of recovery equal to their pre-trauma functioning. Since the event cannot be erased from the survivor's mind and the potential for recurrence is always present, residual symptoms are to be expected.

The importance of selecting, preparing and utilizing mental health professionals in these cases has been emphasized by many writers in this area (Barton, 1985; Motherway, 1987). Unfortunately, in our experience, there have been times when our participation in the case has seemed almost to be an afterthought with little communication between the attorney and provider.

Barton and Motherway suggest these criteria in selecting appropriate mental health expertise.

• Qualifications. Whether or not the individual being used has a specific degree seems (M.D., Ph.D, M.S.W., etc.) less important than extensive experience with PTSD. The expert should have worked with a variety of trauma cases including those similar to the case in question.
• Time Spent with Victim. A single session with the victim to determine a diagnosis is not sufficient to be of assistance when utilizing trauma in a case. Make sure that the mental health professional intends to conduct a thorough post-trauma evaluation
• Ability to Communicate. As you know, an expert's credibility as a witness depends on his or her ability to communicate in the court room. This may be even more critical when the issue is psychological trauma. The mental health professional must be able to help those listening understand the devastation of the traumatic event and the lifestyle that follows.

In our experience, the complete post-trauma assessment should include a pre-incident history (as well as identification of earlier traumas and their impact), an understanding and assessment of the incident, extent of physical injury, short and long-term psychological symptoms and discussions with family members and other in the survivor's life as collaboration. Before engaging a mental health professional, ask about the method they play to utilize for the assessment.

A cooperative working relationship between the mental health professional and attorney is critical in these cases. The results of the post-trauma evaluation will be improved if the following guidelines are followed:

1. Tell the mental health professional what you need (and want) from their evaluation and possible testimony.
   
   
2. Provide timely access to all medical records, incident reports, etc. Data not provided by the client will be useful to reinforce and substantiate self-reports.
   
   
   
3. Allow adequate time to evaluate and begin treatment, if necessary. The post-trauma assessment should take place over a period of several weeks so that the various post-trauma components can be observed and described. In addition, mental health professionals will feel more strongly about their findings if they have had adequate contact time.
   
   
4. Work with the mental health professional to learn as much as possible about post-traumatic stress disorder, his/her perception of the client's post-trauma symptoms and prognosis. This will result in more effective preparation for their testimony.

Psychological injuries may be as devastating and life changing as physical injuries. Although it may be more difficult to document the adverse consequences of these incidents, the mental health profession is developing the expertise and techniques to be of significant assistance.


References:

American Psychiatric Association 1987. Diagnostic and Statistical Manual of Mental Disorders, Third Edition-Revised. Washington, D.C.: American Psychiatric Association.

Barton, William A. 1985. Recovering for Psychological Injuries Washington, DC.: The Association of Trial Lawyers of America.

Motherway, Nicholas J. 1987. Post-traumatic stress disorder, 49 AmJur, 2d\Proof of Facts, p.73.

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