Finding a Good Lawyer for Your Traumatized Client
Frank M. Ochberg, MD
Most members of ISTSS are clinicians, treating survivors of terrifying events. We know how to palliate anxiety, bolster self-esteem, interpret misperception and ameliorate haunting memory. But do we know how to find a lawyer who understands PTSD and can work effectively with our clients and with us? Sooner or later, we will likely find ourselves involved with a client who needs a protective order, or representation for a disputed disability claim, or a judgment against a landlord who refused to repair a security alarm before a rapist found his way into the home. Even if we would rather not participate as a witness, how do we make sure our patient has a fair chance for a meaningful day in court?
After 38 years in this field, dating back to a time when the PTSD diagnosis did not exist, I have come to value attorneys who believe that there is such a thing as "trauma science" and who are willing to study our discipline in order to persuade judges and juries that emotional injury has profound consequences.
When our clients are so traumatized that they cannot comprehend the extent of their injuries, they may fail to file a claim before the statute of limitations expires. But a good clinician working with a good lawyer may accomplish something called "tolling of the statute." This means the time limit can be extended because our clients lacked the capacity to understand their legal rights and remedies.
I'm working now with a truck driver who has PTSD after a drunk driver crossed the centerline and veered into his path. My client braked and swerved, but hit another car and six people were killed. An attorney is helping him receive the appropriate benefits from his carrier so he can change jobs and become a nurse. My therapy depends upon this kind of support.
A physician was raped at gunpoint. Her disability insurer hired an expert who conducted an IME (independent medical examination). According to state law, I was allowed to sit in, which I did. This psychiatrist asked not one question about nightmares or flashbacks, but examined my patient's homosexual orientation with a finetooth comb. Although my patient had been raped brutally, and had every one of the criteria listed in DSM-IIIR (this was a few years ago), the psychiatrist diagnosed a personality disorder! However, my humiliated patient had a good lawyer and won her claim anyway.
When rape victims go to court as witnesses for the prosecutor, they may not realize that a sensitive civil attorney can sue their assailant and the property owner of the place in which the rape occurred. Simply having such an attorney-one responsible to the victim rather than the state-can be therapeutic and remunerative.
Victims of crime and other trauma survivors pursue civil lawsuits for a variety of reasons. For example, the civil justice system can provide victims with benefits not available in the criminal justice system. Criminal cases are brought by prosecutors in the name of the state. Victims are not parties in criminal cases. They are only potential witnesses on the sideline who have little or no input into how a case is pursued. Civil cases, on the other hand, give victims a sense of control. Victims bring these cases in their own names, and victims have the final say over important decisions like whether a case should be resolved through settlement. Unlike a criminal case-in which guilty defendants are held accountable to the state- defendants in civil cases can be held directly accountable to their victims.
Critics sometimes dismiss civil lawsuits as being "just about the money." While experience has shown that many trauma victims have non-monetary motivations for suing, it should be freely acknowledged that civil actions can be a powerful tool for obtaining vital financial compensation. Many crime victims and other trauma survivors sustain substantial economic losses as a result of their victimization (e.g., medical bills, lost wages, etc.). The civil justice system recognizes that the most appropriate parties to compensate victims for such losses are those who caused the losses in the first place.
Civil cases can sometimes take several years or more to resolve, however, and at the end of the road, there is no guarantee that victims will prevail and obtain the accountability and compensation they are seeking. In addition, victims will usually be required to provide testimony under oath-both before and during trial- and be subjected to intrusive questioning about their victimization. Some victims have even described the experience of cross-examination by opposing counsel as "re-victimization."
Because so much is at stake in a civil case, and because so much can be gained, it is vital that victims connect with capable and compassionate attorneys who understand the special needs of their traumatized clients, and who have the skills necessary to protect those clients as they fight for justice.
For more information regarding the role of civil action, and to reach an organization that attracts and nourishes attorneys who are interested and knowledgeable in issues related to traumatic stress, contact the National Crime Victims Bar Association by phone (800-FYI-CALL) or e-mail (victimbar@ncvc.org). James Ferguson, the association's executive director, explains:
"The National Crime Victim Bar Association promotes civil justice for victims of crime, provides training and technical assistance to attorneys who represent crime victims in civil suits, and works directly with victims and victim service providers who are interested in the civil justice process. In addition to in-person trainings, the Bar has created a sixteen-page booklet, which sets forth the basics of the civil justice system in straightforward, non-attorney language."
I recommend this resource to my colleagues. Although you will not always find the right lawyer for your client or your client's situation, you will improve your chances considerably. And you will learn something about civil law along the way.
A Michigan-based psychiatrist, Dr. Ochberg served on the founding board of ISTSS and received the Lifetime Achievement Award in 2003. This article was written with James Ferguson, director, the National Crime Victim Bar Association.
Reprinted with permission.
Copyright: 2006 International Society For Traumatic Stress Studies. www.istss.org
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