A Look at Secondary Trauma and Criminal Law
Contributing Authors: Clara Geoghegan, Law Week Colorado & Michael Dougherty, District Attorney, Boulder County (CO)
This article was first published by Law Week Colorado on August 14, 2023.
When 20th Judicial District Attorney Michael Dougherty was beginning his career as a prosecutor in New York City, he and his then-girlfriend, now wife, were walking down the street in Manhattan and saw a couple arguing on the other side. Dougherty stopped and watched.
“She’s like, ‘Why are we stopping?’” Dougherty responded that he wanted to be able to step in if the fight became physical. That was one of the first times he can remember the impacts of secondary trauma from his work as a criminal law attorney. “People can argue, obviously, without having it turn into a domestic violence case. So recognizing that even that thought was my predisposition based on work. People carry this work home with them.”
Dougherty, like many other lawyers, judges and legal professionals who work in criminal law, has throughout his career felt the impacts of secondary trauma. As DA for the 20th Judicial District in Boulder County, he’s been working to create an office that supports staff mental health and acknowledged how the difficult parts of the job can impact professionals.
Secondary trauma is considered an occupational hazard for professionals who are exposed to the traumatic experiences of others, often regularly. Symptoms of secondary trauma can impact someone’s personal life, physical and mental well-being, outlook on the world and professionalism.
Sarah Myers, a licensed therapist, attorney and executive director of the Colorado Lawyer Assistance Program, explained secondary trauma is a normal reaction to exposure to other people’s traumatic experiences and there are resources to mitigate those impacts and build resilience.
What is Secondary Trauma and How Does it Develop?
Secondary trauma, also called vicarious trauma, has been observed in a number of occupations including among therapists, first responders and medical professionals. In the legal field, it’s been observed in judges, jurors, legal professionals and attorneys.
Secondary trauma occurs when someone’s nervous system begins to register the traumatic experience of someone else like it has happened to them, Myers explained.
Myers said an element of that is empathic strain, previously referred to as compassion fatigue. The ability to take on the experiences of others is empathy and it’s the same ability that allows us to feel moved by art or music or spooked by a horror movie, Myers explained. Secondary trauma can occur because humans have the ability to feel empathy.
“When we take on other people’s trauma or stress or overwhelm as our own and our nervous system reacts as if it’s ours, that causes strain. That’s where we see the pathway to secondary trauma. That’s where we see the pathway to burnout,” explained Myers.
In criminal law, common sources of secondary trauma can include hearing or seeing graphic evidence, witness testimony, crime scenes or details about a traumatic event. While people can develop symptoms of secondary trauma after just one exposure, Myers said people who see others’ trauma chronically are at higher risk.
Symptoms of secondary trauma can be both physical and emotional. They can look like changes in appetite, sleep or weight, feeling unable to stop thinking about the exposure, feeling your worldview become more negative, feeling increased anxiety, feeling increasingly irritable or feeling like you are on heightened alert.
“There’s a lot of both mental and physical symptomatology. It all comes back to the nervous system’s response in trying to prevent harm and it believes the way to do that is to replay the situations and figure out how to do it differently next time,” said Myers.
One mission of COLAP is to provide educational resources to the legal community and Myers said in her experience the most requested presentation subjects are stress management, emotional intelligence, secondary trauma and empathic strain. She believes secondary trauma is one of the most requested topics because it impacts nearly everyone in the legal profession. Even if someone doesn’t work in criminal law where they might be exposed to overtly traumatic things, lawyers work with clients who are often stressed, overwhelmed and might have their money, property or personal life on the line and those feelings can impact lawyers.
“Education is a huge form of both prevention and mitigation for behavioral health issues,” explained Myers who noted learning more about secondary trauma can give lawyers the language to describe and better understand their own experience, while education can reduce stigma around mental health.
Mitigating the Impacts
When Dougherty was elected DA in 2018, he made mental health a priority for his office. The 20th Judicial DA’s Office was part of the Office of Attorney Regulation Counsel’s pilot Well-Being Recognition Program for Legal Employers that was later made a permanent program by the state Supreme Court.
When Dougherty’s office handles a heavy case, like murder, abuse or assault, he said it can take a toll on many people.
“Now, it’s different for everybody involved. But there’s an impact on everybody involved,” explained Dougherty. “I see firsthand, because I still handle cases myself, but also from supervising and leading staff, that the longer people stay in the office, the more this can have an impact.”
When Dougherty first began his career as a prosecutor in 1997, he said there wasn’t much of a conversation about how the nature of the job can impact people personally. He doesn’t remember secondary trauma or the impacts of doing traumatic work coming up at all in law school. He’s hoping to change that in his office.
“We can only maintain those highest standards of public service if we have people who are healthy and able to do the work,” he explained. Dougherty has been able to use grant funding to bring in guest speakers to the office to discuss mental health, along with therapy dogs. He said the office has also found room in its budget to have a licensed and confidential therapist available to staff.
Myers said there is no one-size-fits-all guide for how legal employers can create a support program for staff experiencing symptoms of secondary trauma, but there are steps they can take to figure out what a program might look like for their office. They can bring educational resources or training on secondary trauma to the office, they can make sure managers have educational resources or training on it and they can reach out to other legal employers to learn how they have created support or brainstorm options. They can also reach out to the Colorado Supreme Court’s Well-Being Recognition Program for Legal Employers to see if they have any recommendations or resources.
From an individual perspective, Myers said it’s better to seek help sooner rather than later if you recognize symptoms of secondary trauma. Seeking help could include speaking with friends or family about what you are experiencing, seeing if an employer offers resources through an employee assistance program, seeing if your insurance covers behavioral health care providers or contacting COLAP, which is free, confidential, independent of the courts and can refer attorneys to providers or other resources. Myers added there are a number of providers who specialize in treating trauma that COLAP can connect people with.
Myers and Dougherty both said the legal industry has come a long way in reducing stigma around mental health, but there is still a long way to go.
In 10 years, Dougherty said he hopes DA offices across the state will have permanent funding to implement support programs. He explained the topic of secondary trauma and mental health comes up regularly at statewide DA meetings and conferences, but piecing together funding to implement programs isn’t easy.
“I’d be hoping that all these things would be permanently funded for every jurisdiction in the state of Colorado,” said Dougherty who noted that juggling funding for the lectures, therapy dogs and an office therapist isn’t a breeze for his office, and he imagined it would be much harder to do if he was in a more rural district. “We should provide steady support for them and their offices as well.”
He also hopes conversations around secondary trauma and mental health will begin in law school and at the start of careers for young lawyers.
Myers also hopes in 10 years law schools will focus more on mental health and secondary trauma and legal employers will also be more involved in the conversation. She also hopes in a decade that stakeholders with the U.S. legal system and courts will be better informed about how to mitigate the traumatic impacts legal proceedings can have on those involved.
She noted while lawyer assistance programs have existed for the last 40 to 50 years, there’s been a greater emphasis on lawyer well-being and mental health in the last 10 years following a nationwide study that found lawyers are at higher risk for behavioral health conditions and substance use disorders. Two reports from 2016 found lawyers and law students reported symptoms of anxiety, depression, stress and substance use disorders at a higher rate than the general public. Myers said that research led to a resurgence of prioritizing mental health and well-being in the legal profession.
Another factor that has shaped conversations around mental health and the law recently was the pandemic, Myers explained.
“From a behavioral health perspective, one positive aspect that came out of the pandemic was that people recognized how stressed they were in a way that motivated them to seek help when they might not have in the past,” said Myers, who noted that many people experienced worsening mental health as a result of the pandemic.
Both Dougherty and Myers hope the legal industry will keep working towards reducing stigma around mental health and secondary trauma.
“If members of the legal community are dealing with this, or experiencing this, I think it’s important to know that there’s not something wrong with you that you responded this way. It is normal to respond that way,” said Myers.
To Dougherty, secondary trauma is difficult but it comes from the same place that makes work in criminal law meaningful.
“Some of these things are hard. It’s the hard parts that make it meaningful. It’s the hard parts that make it fulfilling,” said Dougherty. “But we have to help our staff get through the hard parts in a healthy way so they can continue to do great work for years to come.”