The topics and conclusion of the first interview with a plaintiff’s attorney in a mental and emotional injury case
If you have suffered a mental and emotional injury – whether due to an accident or due to abuse, harassment or discrimination – the interview with a mental injury attorney can be a significant meeting. The process for the interview in a mental damages case reflects the special nature of psychology injuries. As the potential plaintiff, you must be completely open and truthful with your injury lawyer about very personal details, including relations with relatives, pre-existing physical and mental conditions, and your mental and emotional history starting from childhood.
Childhood history: age 0-18 years
During the initial interview in a mental injury case, your personal injury attorney will probably need to elicit information regarding your early home life.
The more that the subject trauma is objectively significant, and the more that your reaction to that trauma makes sense without understanding the intimate details of your background, the less important it is for the attorney to ask about your early childhood traumas. On the other hand, when the trauma seems objectively mild, or your reaction to even a severe trauma is more than what the attorney would intuitively expect, it becomes critical for the attorney to learn about any early childhood traumas. Typically, these childhood traumas will explain why your were so vulnerable to the subject trauma you are consulting the attorney about.
In cases involving clients who have recently been abused (including sexual abuse by a professional over a period of time), the mental injury lawyer will probably ask about any childhood history of physical, emotional or sexual abuse or neglect. The attorney may ask questions like “Have you been abused or neglected?,” “What was your relationship with your father like?”, “What kinds of things would he do with you?”, “Did he ever make you cry?”, “What happened?” Often, the purpose of these questions is to analyze and understand why the client had such a severe reaction to the trauma at issue in the case. For instance, a client may have an extraordinarily extreme psychological reaction to an automobile accident because he will unconsciously fear the “punishment” of an over-controlling father who blamed an accident on him when he was a teenager, even though the accident was not his fault. Another example is a client who suffers a significant fall as a result of the negligence of another and is unable to call for assistance for a period of time and develops a severe mental disorder. The fall may have caused the client to “re-experience” the feeling of abandonment by a father who would not protect the client as a child from an abusive mother.
Age 19 until just before the subject trauma
If you are an adult, the mental-injury attorney will also need to learn some of the basics of your life experience from the time that you left home until the time of the subject trauma. Your lawyer needs to have a good picture of how you have reacted during adulthood to the early childhood traumatic experiences.
Early childhood trauma may have created an underlying vulnerability. But everybody reacts differently to childhood trauma. Your mental injury lawyer will want to evaluate how well you have functioned as an adult in your social, educational, work and personal relationships. Even though you suffered significant childhood traumas, you may have been able to function fairly well in all aspects of your life – up until the time of the subject trauma.
You should also tell your attorney about any stressors that occurred in the year or two before the subject incident. Frequently a defendant will assert that other stressors, such as severe marital difficulties, death of loved ones, and loss of employment, are the actual cause of a plaintiff’s mental and emotional condition. Therefore, it is vital, right at the beginning of the case, that you tell your attorney about any other stressful occurrences in your life.
Your attorney may also ask about other circumstances in your life from the time you left home until the subject trauma. A competent mental injury lawyer will need to know whether you received any psychotherapy and whether you received psychotropic medication from any health care providers before the subject trauma. The attorney will also need to know whether you have engaged in “negative” behavior, such as criminal misconduct, spousal abuse, litigiousness, severe drug and alcohol abuse, or other behavior which may bias a jury against your case.
The subject trauma and the time period preceding it
During the initial interview with the attorney, you will be asked to describe the trauma(s) that caused your mental and emotional injury. Your attorney will want to explore your state of mind immediately before, after and during the trauma.
In a mental and emotional injury case, the trauma may be a single event or in the case of abuse, harassment, or discrimination may be repeated acts that take place over weeks, months or years. The interview will be different in single-trauma than in multiple-trauma cases.
Single trauma cases
In a single-trauma case, your mental and emotional injury lawyer will want to explore your state of mind in great detail immediately before the trauma. The attorney might inquire about your thinking and emotions from the beginning of the trauma until the end. What thoughts popped into your mind as the trauma was occurring? Was there an immediate “flashback” to an earlier childhood trauma? Are you unable to retrieve specific moments of the trauma (typical in a post-traumatic stress disorder)? Did you have a sense of being outside your body during the trauma (this may represent disassociation)? Did the trauma feel like it lasted much longer than you objectively know it lasted? What were you feeling while the trauma was occurring? Did you feel overwhelmed? Were you unexpectedly calm?
People’s reactions to trauma are unique, and the ways they experience trauma are very individualistic. There is no right or wrong answer to any of the questions listed above. Yet, the answers may provide vital information that the lawyer needs in order to piece together the psychodynamic mechanism of a client’s injury. Answers to these questions may also reveal important unconscious information about the client’s history that the client had successfully repressed. For instance, questioning may reveal that, when the client was lying on the ground after a severe fall caused by a faulty construction support at a construction site, all he could think about was a time in which his uncle picked him up when he was a little boy and held him out of a window and threatened to drop him fifty feet to the ground. The client may have completely forgotten about the event until the attorney’s questioning.
Multiple-trauma cases, such as sexual abuse, discrimination and harassment
In many sexual abuse, discrimination, harassment or other similar cases, the abuse lasted for months or years and cannot be divided into a small number of discreet events. The mental injury lawyer may not need to learn of all the details of each and every trauma. In fact, the details of the abuse or harassment itself may be less important than the events that led up to the first few traumatic experiences. The essence of all multiple-trauma cases is one person’s ability to exercise dominance and control over another person, and to some degree exert his or her will over another person. In such cases, one of the attorney’s key goals for the initial interview is to understand the dynamic by which the perpetrator was able to inflict his or her will on the victim.
The experienced attorney in a mental injury case may ask the client to very slowly go through the story of how the perpetrator began to gain influence over the client. In addition to the coercive behavior of the perpetrator, the attorney will want to learn the details of the power differential that normally exists in multiple-trauma cases. Sometimes the factors that led to the power differential will be obvious. Employer-employee, healthcare provider-patient, clergy-parishioner, and teacher-student are all examples of relationships in which there is an inherent power differential. However, even in these situations there are usually aspects of the victim’s vulnerability that combine with the perpetrator’s skill in spotting and influencing vulnerable victims that increases the power differential. It is important to recognize that it is the abuse of power that injures the client and not necessarily acts and statements which may not seem so traumatic or horrific on their face. This is even true for sexual acts.
In another fairly common situation, one coworker sexually harasses another for a long period of time. Depending on all the circumstances, if the company that employs the co-workers had advance notice of the perpetrator’s dangerousness, then the company can be liable to the victim for damages.
Life after the trauma
The interview will also focus on the losses that you have suffered due to the trauma. Trauma that is capable of causing significant mental and emotional injuries can implant itself in your mind in such a way that you may have difficulty understanding or conveying your losses. In multiple-trauma cases, the victim will frequently have to deal with the wreckage and fallout from the traumatic experience. In workplace harassment and discrimination cases, this may mean the loss of a job or the inability to work. In sexual abuse cases, it may mean the loss of a marriage and family. It is important for the mental injury attorney to be particularly compassionate in the interview and be aware that your very sense of identity and who you are in the world may have been turned upside down by the subject trauma.
The lawyer will want to ascertain how you have been affected by the traumatic experience and how you feel you have changed. If you have a spouse or a close friend available, your lawyer may want to include them in this part of the interview, so they can describe any changes which they have observed in you. Your lawyer will also need to know about any treatment that you have received since the trauma, as well as any economic losses stemming from the loss or reduction of employment. Medical bills may be recoverable for appropriate treatment. You may also be able to recover for payments for additional services you needed because of a loss of ability to perform tasks that you easily performed before the trauma.
Conclusion of the interview
After you have completed your story, the attorney may provide a preliminary analysis of your legal options, and indicate the strengths and weaknesses of the case. Weaknesses are not usually due to any “faults” of the client personally. Too often the victim of trauma or abuse will mistakenly feel that he or she is at fault. Instead, weaknesses in a case can result from limitations of the legal system to fully compensate every trauma victim, or from the proof and evidence challenges the attorney will confront when trying to establish liability, causation and damages. If the lawyer concludes that the case has significant weaknesses, the lawyer may decide not to take the case.
Explaining what may occur during mental injury litigation
If the lawyer accepts the case, you can ask the lawyer to explain what you are likely to experience during the course of the litigation. Most clients believe that a mental damages case is either immediately settled or it will go to trial. Indeed, 80 to 95 percent of all cases settle. However, there is no guarantee that a case will settle, nor when a settlement might occur.
One key stage of litigation before trial is the discovery process. As the plaintiff, you will have some involvement in discovery. You will also be involved in other stages of the litigation. Altogether, you will probably devote five to fifteen days to the case before trial (one to four days for deposition and deposition preparation; one to two days answering written discovery; two days being evaluated by experts; a couple of meetings with your attorney; and one to two days of mediation or settlement conferences).
You also need to realize that your privacy may be invaded during the litigation. Most cases do not end up in “scorched earth” litigation, but it is possible that your case might. It is always conceivable that the defendant(s) will engage in aggressive litigation tactics, and may take the depositions of your friends and relatives, neighbors, treating doctors, therapists and employers. This possibility should not scare you, but you should understand what you might be getting into if you commence a lawsuit.
The retainer agreement
If the mental injury attorney and you decide that you want to work together, the attorney will need you to sign the retainer agreement in order to proceed with the case. You should be sure you understand the terms of the retainer agreement. If there is anything you don’t understand, ask the attorney to explain it.
Your lawyer may want to contact your treating psychotherapist, if you have one, to obtain information. Also, your lawyer may want to send you out for evaluation by a psychological expert.
If you are not in therapy, and if therapy seems appropriate, the attorney may urge you to seek treatment. If you have been seeing a therapist, your attorney may encourage you to continue with your treatment. The personal injury attorney is not a trained psychotherapist. The attorney can gather facts for your case, but cannot provide treatment for a mental or emotional condition.