Trial Magazine

When I first met my young client, “Bryan,” I knew I had my work cut out for me. The police report from his case painted a traumatic and painful experience. He was sexually assaulted by another student while pinned up against a bathroom wall at his elementary school.

The assailant had a known history of being physical with other students, and an aide was required to shadow him on campus during school hours. At the time of the assault, the aide had taken a lunch break. This particular bathroom door locked from the inside. Bryan yelled to his classmates and teacher for help. No one was able to get to him in time.

Bryan was 12 years old when he was assaulted. Law enforcement officers spoke with Bryan and took his statement in the school administrators’ office, without his parents present. In its written form, Bryan’s statement was fragmented and brief. When I spoke to Bryan’s parents, they were furious that school district employees had downplayed what happened to their son and had given no details other than to say it seemed the other student had a “crush” on Bryan. They told Bryan’s parents, “We think it’s cute.” A wall of silence then fell around the events of that day. It was now clear that Bryan was the only one who could tell us what happened.

A few years later, I represented a nine-year-old girl, “Sam,” who’d been assaulted at her elementary school by known bullies, one of whom had sexually assaulted several students on prior occasions. One of the boys taunted Sam while another grabbed her between her legs from behind in front of the entire gym class.

She reported the incident to the school principal, who said Sam was overreacting. The principal sent her back to class, where she had to face her assailant. Here again, school district employees and administrators took to the cover of silence. They made no formal report to law enforcement, despite mandatory-reporting requirements.

The challenge for a lawyer who’s called on to represent children like Bryan and Sam is that the children themselves are a vital source of information. We need their courage to pursue justice, accountability, and healing. Integral to this is the challenge of helping the children find their own voice.

Representing survivors of childhood trauma requires a delicate balance. The lawyer’s role requires more than knowing the rules of evidence and case law. Ultimately, the lawyer must prepare their client to do one of the most difficult things imaginable. Our role is to help our clients find and use their voice—and not just in the privacy of an interview with their lawyer, but also in the adversarial crucible of a deposition, defense medical exam, and, often, from the witness stand at a trial to adult jurors they’ve never met.

Understand the Challenges of Traumatic Memory

Taking the time to build trust with our clients is the foundation of everything that comes next. Reverse roles with your client to understand that the trauma is not just something that took place in the past—it’s also imprinted on their minds, brains, and bodies in the present.¹

I often begin by meeting with my client and their parents (or other primary caretaker) in a neutral place. I won’t ask anything of my client during these early meetings. It’s just an introduction, and I give my client space to ask me questions.

I may do this as many as two, three, or four times, depending on how things develop. As the conversation unfolds, I’m trying to gauge my client’s tolerance for questioning, avoidance behaviors, extent of vocabulary, ability to recall, and manner of recall, as well as any indications of caretakers or others grooming them.

I start by asking innocuous questions about their background to get the child acquainted with fielding general topics and follow-up questions. Spending time with the client, listening without judgment, and creating a secure environment are crucial steps. It took me years to recognize that children, especially those who have experienced trauma, often struggle to articulate their experiences in a coherent narrative. This requires a patient approach that respects the child’s pace and readiness to disclose information.²

As a defense mechanism, children (and adults) often suppress and deny pain. For example, one study followed a group of girls who’d been treated in an emergency ward for proven sexual abuse. When the researchers contacted them 17 years later, 40% of those abuse survivors either did not recall the event or denied it outright. Yet, their memory was found to be intact for other moments in their lives.³

Age and developmental ability also affect memory, perception, and the ability to recall events.⁴ Very young children, for example, have difficulty focusing their attention and searching their memories when asked about past events. It’s nearly universal that the memories of children who have suffered extreme forms of trauma are impaired or distorted.⁵ In my experience, this concern is more acute for young people who have autism or an attention deficit disorder.

The study of neuroscience revealed that verbal recall of traumatic events is often difficult because of how the brain encodes the experience and what happens to the brain when trauma is still fresh, ongoing, or associated with PTSD.⁶ Complicating matters is that trauma tends to inactivate the part of the brain responsible for speech, called the Broca’s area. Without a functioning Broca’s area, a person is unable to put thoughts and feelings into words.⁷

The research of Bessel Vander Kolk found that during traumatic experiences, the brain deactivates its left hemisphere and activates the right. This happens during the active recall of traumatic experiences, too.⁸ Under ordinary circumstances, the two sides of the brain work together.

Deactivation of the left hemisphere affects a child’s ability to organize experiences into logical sequences and translate these shifting feelings and perceptions into words.⁹ In extreme cases, children wind up living the recurring nightmare of being in trouble and trying to scream for help, only to be unable to access their voices.

From a visual perspective, trauma survivors may not recall their experiences in linear fashion, but instead as “flashbulb memories” or snapshots of their experience inflicted by the senses.¹⁰ Because of their vulnerabilities, it’s important to check in often and be flexible with expectations of what a traumatized child is able to report. Never coerce disclosure or continue an interview when a child becomes distressed.

Trust takes time. A crucial step is to address concerns about confidentiality. I try to put my client at ease by explaining what the “attorney-client privilege” means and to make clear that just because we discuss something doesn’t mean anyone else will find out about it. If the child can understand this, it empowers them with a feeling of control over what other people can know about what happened to them.

Take a Trauma-Informed Approach to Interviewing the Client

Before we engage our clients in detailed interviews, it’s important to gather as much background information as possible about them. This includes understanding their cultural, emotional, developmental, and cognitive characteristics. We have access to information from teachers, parents, caregivers, medical professionals, or others familiar with the child. It’s critical to learn as much as possible about their needs before a more involved interview.

For example, we may encounter cultural or family norms that prevent reporting of maltreatment or interfere with our client’s ability to share openly with us. In my experience, a child’s culture may discourage disagreement with or correction of adults. A child with this background might more readily agree with suggestive questioning.¹¹

I freely and repeatedly give my clients permission to correct me during interviews and conversations. I’ve found that encouraging correction of an adult during an interview is a great way to fortify my client against the perils of defense cross-examination or an interview with a defense psychologist, especially one who asks suggestive or leading questions.

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Convey to the child that we don’t know what happened to them and don’t know the answers to the questions being asked. Empower them as the expert on what happened.

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It can also be powerful to convey to the child that we don’t know what happened to them and don’t know the answers to the questions being asked. Empower them as the expert on what happened. This, too, will aid with cross-examination down the road.

Take careful and patient first steps. At some point, our clients will create an opening to talk in more detail about what happened. I honor this moment and ask them for permission to talk openly about what they experienced. This may have to be done in phases. Patience is essential. Do not rush through these first interactions.

The key is to allow our clients time to start to feel a sense of security. Creating a nonthreatening and nondemanding environment allows them, to the extent possible, to recall details without the pressure of being under a stress response.¹²

Remember, our clients have suffered a monumental breach of trust and violation of boundaries. In general, anyone who may influence the child’s openness or willingness to answer should not be present during key parts of the interviews, if at all. This usually requires laying groundwork with parents or caretakers and getting their permission to spend a few moments alone with the child.

When given our first opportunity to discuss specifics with our clients, take a moment to help the child understand why we need to talk to them about what happened. An easy way to do this is to ask, “Do you know why we’re here?” This opens a discussion about expectations, purpose, and the importance of providing clear and accurate information.

Tailor your approach to the child’s actions and reactions. For the duration of these interviews, be mindful of what your client is saying and, more importantly, how they’re saying it. Look for avoidance and nonverbal cues that embody discomfort or shame.

Check in with their breathing.Shallow, rapid breathing or deep sighs can be a sign of distress. Avoiding eye contact, self-soothing or fidgeting, hunched shoulders, or covering the body with crossed arms are all signs of guarding and avoidance. Tune in to body language to gauge your client’s ability to continue.

Anyone who has experienced trauma, and especially children, may not have admitted to themselves how they feel about what happened. That’s why it’s usually a nonstarter to ask, “How did that make you feel?” I’ve found it more effective to ask, “What did that make you want to do?” Often the child’s response will include actions like run, cry, scream, or curl up and hide. Embrace what is offered and honor what arises.

When discussing details of an assault or other trauma, tune in to the child’s manner of recall. For example, pay particular attention to whether the child describes their interactions and things that happened as a single incident or multiple incidents. This will be important and expressed differently.¹³

A child who says, “It usually happens when the other students are out to recess” is communicating something different from, “It happened during recess.” This will inform further investigation into other perpetrators, people who may have turned a blind eye, potential witnesses, or opportunities for prevention.

Create an environment where your client has permission to speak out, because children are so often told to be seen but not heard. It’s important to get parents and caretakers on board to create a supportive environment for the child to find their voice.

A word of caution: Don’t be alarmed if details in the story change. Lawyers want to nail down details and timelines. But that’s not how our memories record trauma.¹⁴ If a child seems engaged but is having trouble recalling details, one tool at your disposal is to use a reenactment to recreate the moments leading up to a traumatic moment, identify witnesses, and, if your client allows, to move into what happened.¹⁵

To give the child separation and limit exposure to reliving the experience, allow others to act as the key players and let the child direct the action, telling everyone where to go and how things happened.¹⁶ If your client is open to this approach, it’s another opportunity to empower them as the director of the action with agency over what happens to them. This often stands in contrast with the lack of control they feel about being traumatized. It’s also important to take note of and make space for our clients’ guilt and shame, particularly when they suffered at the hands of someone they trusted, like a teacher or caretaker.

When doing this work, be sure that you have a safe place for the child to land emotionally. Do not leave them hanging on the edge of an emotional cliff. During reenactments, have a licensed psychologist present, and perhaps one of your experts or a trial consultant. When representing children, there is a need to balance the gathering of information with the risk that this process may retraumatize our clients. This risk is heightened during reenactments, especially with children. Having a licensed psychotherapist present to guide this approach is necessary for our clients’ safety.

The child may also benefit from having paper and markers in the room if they prefer to draw out what happened.¹⁷ Having our client write a letter to a loved one or their assailant can also be illuminating.¹⁸

What to look for. During the interview, look for clues about how what happened could have been recognized earlier and prevented by those in positions of authority. Look for signs that the assailant groomed the child. An adult assailant might have taken pictures with the child, asked for after-class meetups, posted pictures on social media, or attempted to push the relationship past the role of “teacher” or “mentor” into “friends.” These are clear attempts to test and push boundaries.

If the assailant was a peer, ask about dynamics with other students. It’s frequently the case that, among students, an assault is instigated by a dynamic with other students. I had a case once that involved what seemed to be several isolated incidents of peer-on-peer assault involving assailants who had no prior history. The school district took the position that they couldn’t have foreseen these students acting out this way and moved for summary judgment.

During depositions, it came to light that the students were friends with a student who was a known bully who had a substantial history of being physical with other students and being combative with teachers, and who was a bad influence on his peers. In context, the dynamic made sense and was well known to several counselors and teachers.

Questions to use. During the early moments of an interview, start with open-ended and neutral questions. Leave more focused questions for later in the interview. The American Professional Society on the Abuse of Children (APSAC) Practice Guidelines have great advice on how to phrase questions to open the conversation.¹⁹ One of the better pieces of advice I’ve read is to use questions that focus on action: “Tell me everything that happened.” “What happened next?” “Tell me everything about the man who did this.”²⁰

It’s critical to never interrupt or inject ourselves into the story. Wait patiently for an answer. Assess body language while our clients gather their thoughts. The silence isn’t empty. It’s filled with potential. These are the moments when we earn our clients’ trust.

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For safety, it’s important to have anchors that we can return to when our clients appear to be distressed or overwhelmed.

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Protect the child’s emotional well-being. For safety, it’s important to have anchors that we can return to when our clients appear to be distressed or overwhelmed. Gently redirect the conversation to lighter topics, and give the child a chance to regain composure before continuing.

Be on the lookout for hypervigilance, and always build in relaxation techniques. Children who’ve survived trauma, especially recent trauma, have difficulty with self-regulation.²¹ Crying, hyperventilation, and changes in body language are all things to watch for as our time with them unfolds.

This approach underscores the importance of balancing the need for detailed information with the child’s emotional well-being. It’s important to accept that, although details may be important, the child may not be able to access them. Be cautious when using leading questions to encourage a child to answer questions or introducing information that is independently available from, for example, police reports or other sources.

Many children suffer from agonizing shame about the actions they had to take to survive and navigate the abuse. This is particularly true when the abuser was someone close to the child or someone the child depended on. The child might wrestle with whether they were a victim or a willing participant, which, in turn, leads to confusion about the difference between love and terror.²²

We must rely on instinct and experience to gauge when to bring the interview to a close. During the closure phase of an interview, it’s OK to ask open-ended questions such as, “Is there anything else you want me to know?” It’s also helpful to ask, “Do you have any questions for me?” And leave room for further contact: “If you think of anything else, you can reach out to me, and we can find another time to talk.”

Talk to others around your client. The interview with our clients is a critical piece of the puzzle but by no means the end of the investigation. Talk with friends, family members, and other people close to the child. Always respect the confidentiality of what was shared.

Ask others about changes in behavior, self-grooming, and approaches to normal activities. Has the child’s interest in activities waned? Are they interested in being with friends? Are they withdrawn? Dressing differently? Are they hypervigilant around certain settings or people? These interviews with family members and others in the child’s life also help you vet and prepare them as potential witnesses.

Empower Your Client and People Close to Them to Testify

After the initial information gathering, the next step is building the foundation for our clients to testify during a deposition and at trial. This means preparing them to stand up to a defense psychological exam and questioning by defense lawyers.

At this point, we should know our clients’ story and how to talk with them about it. Now comes the challenge of galvanizing our clients’ little hearts to tell a stranger their story and stand up to cross-examination. One of the most important things is to get a sense of our clients’ limitations so you can place safeguards around them.

First, talk to their family members or caretakers about behavioral markers of stress and circumstances that may trigger flashbacks, anxiety, or PTSD symptoms.²³ You may have already gathered this information during the initial interviews.

The next key step is to role play.²⁴ Enlist a co-worker or colleague to help ask the questions. This way, the child can practice being sworn in and given the admonitions and can get used to the flow of questioning. We should never cross-examine our own clients in these circumstances. The goal is to get our clients accustomed to having us by their side and begin to internalize our presence as an ally. It’s also critical to rehearse objections and instructions not to answer so our clients are familiar with them.

Finally, I always give my clients the power to say, “I need a break.” When we empower our clients to speak up for themselves, they feel like they have a measure of control over what happens to them and how the questioning goes. Restoring a sense of control is critical because victimization robs them of it, and many children feel that depositions and further questioning or scrutiny are just an extension of the original trauma.

I work to get my clients in touch with the part of themselves that wants to take back control and share with others what happened. This inner leader will be critical in depositions and the courtroom.²⁵ It may seem like a small thing, but this is an immeasurable gift to give your client, who will need to find their voice and courage if they are going to testify.

These cases are often defended aggressively, so what’s the remedy for a defense lawyer who gets too aggressive? In order to protect our clients once the questioning begins, we must understand our state’s remedies for suspending a deposition and getting a protective order.²⁶

I always make a record of trying to de-escalate the questioning and get all efforts on the transcript so I have a strong basis for a protective order, if needed. As an added measure of protection—and to give myself a minute to breathe—I might take a moment to remove my client to the safety of a hallway or another room while I return to face the defense lawyers.

Equally important is preparing our clients for a defense mental exam. Check your local rules of civil procedure regarding these exams. Typically, the exams must be done by a stipulation, which is then entered as a court order.²⁷ It’s important to get ahead of the process by proposing clear terms for the exam, including duration, location, who’s allowed to be present, and the extent to which the exam can be recorded.²⁸

The reality is that there will be portions of the defense mental exam when our clients must face the examiner one-on-one.²⁹ Introduce this reality to your client early to give them time to warm up to the idea that they’ll have to answer questions in a less inviting environment than the initial interviews with you.

I’ve made it a practice to require that these portions of the exam be audio recorded, even if I can’t be in the room during the interview. Every judge I’ve proposed this measure to during motion practice has agreed that, at minimum, the interview should be audio recorded in this way. During every stage of the case, I work with my client and their caretakers to create a clear plan for after these key moments so my client has post-testimony support.³⁰

Lawyers representing survivors of childhood trauma are a lifeline as the children navigate the aftermath. It’s incumbent on us to provide a safe space for our clients to share their stories and arm them with tools to navigate an adversarial environment.

We must empower survivors of childhood trauma to find their voice and play a role in shaping a world where every child’s story matters and can be heard. It’s our duty, first and foremost, to listen. Only when we take the time to hear our clients’ stories can we champion their cause in the name of justice and healing.

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Noah J. Moss is an attorney at Casey Gerry in San Diego and can be reached at nmoss@cglaw.com.

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Notes

1. Gabor Mate, When the Body Says No 1–12 (2004).
2. APSAC Taskforce, Forensic Interviewing of Children, The Am. Pro. Soc’y on the Abuse of Children 3 (2023), https://apsac.org/wp-content/uploads/2024/04/30014.pdf.
3. L.M. Williams, Recall of Childhood Trauma, A Prospective Study of Women’s Memories of Child Sexual Abuse, 62 J. of Consulting & Clinical Psychol. 1167–76 (1994).
4. Chris Newlin et al., Child Forensic Interviewing: Best Practices, Dep’t of Justice, Office of Juvenile Justice & Delinquency Prevention 3–4 (Sept. 2015), https://ojjdp.ojp.gov/sites/g/files/xyckuh176/files/pubs/248749.pdf.
5. C.R. Brewin, The Nature and Significance of Memory Disturbance in Posttraumatic Stress Disorder, 7 Ann. Review of Clinical Psychol. 203–27 (2011).
6. Bessel van der Kolk, The Body Keeps the Score 43–45 (2015).
7. Id. at 43.
8. Id. at 44–45.
9. Id. at 43–45.
10. Newlin, supra note 4, at 5.
11. APSAC, supra note 2, at 5.
12. Christina Rainville, 787, ABA, Oct. 1, 2012, https://tinyurl.com/y4c97cdz.
13. APSAC, supra note 2, at 24.
14. Jessica D. Payne et al., The Biophysiology of Trauma and Memory, 130(3) Psychol. Bull. 361–92 (Oct. 2004).
15. John Nolte, J.L. Moreno and the Psychodramatic Method (2020).
16. Joane Garcia-Colson, Fredilyn Sison & Mary Peckham, Trial in Action: The Persuasive Power of Psychodrama 107–22 (2010).
17. Tian Dayton, The Living Stage: A Step-By-Step Guide to Psychodrama, Sociometry and Experiential Group Therapy 179–214 (2004).
18. Katherine James, Harvesting Witnesses’ Stories 151–58, 250–52 (AAJ Press 2020).
19. APSAC, supra note 2, at 12.
20. Id.
21. Van der Kolk, supra note 6, at 30.
22. Id. at 13–14.
23. Rainville, supra note 12.
24. See, e.g., Jim Garrity, 10,000 Depositions Later: The Premier Litigation Guide for Superior Deposition Practice 376–451 (2023).
25. See generally Richard Schwartz, No Bad Parts: Healing Trauma & Restoring Wellness with the Internal Family Systems Model (2021).
26. See, e.g., Mark R. Kosieradzki, Deposition Obstruction: Breaking Through 27–36 (AAJ Press 2019).
27. See, e.g., Cal. Code Civ. Proc. §2032.020.
28. For further information and examples of these stipulations, email me at nmoss@cglaw.com.
29. See, e.g., Cal. Code Civ. Proc. §2032.530(a)–(b); see also Edwards v. Super. Ct. of Santa Clara Cnty., 549 P.2d 846 (Cal. 1976).
30. See, e.g., Kate Walker Brown et al., Victim Witness Testimony Protocol For Supporting Youth Impacted By Commercial Sexual Exploitation, Los Angeles Cnty. 39 (2022), https://tinyurl.com/yc34fyy9.