This guide is intended for lawyers working with refugees and asylum seekers in the US and Europe. It is designed to prompt you to think about how to style your client interactions for the best possible outcomes when all of the people you are working with have likely undergone some trauma - certainly in the emotional sense, if not also in the legal sense.
Making the decision to leave home, travel across other countries, undertake a frightening journey, deal with smugglers, evade authorities and human traffickers, and perhaps being harmed physically or psychologically along the way – these are all traumatizing experiences, regardless of what caused the person to flee their country of origin (CoO). This means that even if their traumatic experiences might not help them with their legal asylum claim, and might not therefore be the focus of the bulk of your questions, it will certainly impact their interactions with you.
Your interactions will be more successful if you are mindful of these traumas and moderate your actions accordingly. By the time they reach you, asylum seekers will have heard from at least one person (probably several) about what a “successful asylum claim” looks like. At the point at which they meet you, they trust this person more than you. Part of your job is to let them know that they can trust you more.
One of the first things to consider is that a client does not owe you anything, literally but also in the emotional sense. This means that they will only tell you their story if you adapt your manner and questions to evoke a sense of trust. Think about the most traumatic experience you have ever had; what would prompt you to tell it to a complete stranger, particularly if you thought your life was hanging in the balance. Would you look for a receptive, non judgmental demeanor? Eye contact? Respectful interaction? Careful attention? Someone who didn't infantalize or speak down to you? Someone who could explain difficult legal concepts in a plain language, meeting you where you are?
It is tempting for some to think that because they are volunteering time to assist people in need -- people who would have no legal assistance otherwise -- that they owe you forthrightness, efficiency in their answers, gratitude. Thinking those things, even subconsciously (which is especially likely to happen when you are also tired or perhaps even suffering secondary trauma or feeling burned out), is likely to impede the process in multiple ways. Clients who have experienced sexual violence may be even less forthcoming and take longer to trust you. Every individual is different, and how long ago the sexual violence took place and what has happened since then is also likely to impact their ability to discuss the event(s). For example, if the sexual violence took place in the CoO, and the person has since made the difficult decision to leave and undertaken and arduous journey, they may view themselves as survivors and persons with agency, taking affirmative steps to seek asylum. They may possibly be better equipped to discuss the details of the event(s). If this is the case, honor this power they have claimed by being empathetic and direct: use the words they use, not euphemisms (no matter how startling); listen and ask clarifying questions; show respect for their agency by meeting them where they are. Consider removing the phrase, “you don’t have to tell me if you are not comfortable.” This is already the case - they already won't tell you if they are not comfortable- and saying so risks the client believing that they will hurt you by revealing their trauma.
The key throughout is giving your client the gift of transparency about the process – your process in assisting them, and the formal process they are undertaking in applying for asylum. Meeting your client where they are (emotionally and in terms of education level), throughout your interactions with them, is crucial, even if “where they are” changes from one meeting to the next.
One of the best ways to avoid revictimizing your clients is to be exceedingly clear, at every step of your interview(s), exactly why you are asking the questions you are asking. Another very important tool is to begin each interview by explaining “in plain language” what the law says and how that relates to the client’s story. Obviously, most interviews will take place in a second language for at least one party, but this term of art means that it is the lawyer’s obligation to meet the client “where they are,” intellectually and emotionally. The client “owns” the case, meaning that they suffer or benefit from the consequences of the outcome. Therefore, our job is to explain the law to them, elicit facts, and explain how their facts fit into the law. “Explain” means that we say it in such a way that it is understood. Our job is not to impress clients with our legal knowledge. Our job is to guide them to pull out the facts that are most likely to satisfy the elements of asylum law (or vulnerability standards, or eligibility).
For example, you might say: “In X number of days, you will be meeting with X official who will make a determination about X. I do not work with any government. I am here for you, and my job is to help you to tell your story in such a way that when you meet with the officer, you know how to talk about what happened to you, emphasizing the parts that are required to be shown in order to be granted asylum (or vulnerability, etc.). [Optional: At the end of our time together, I will try to tell your story back to you, so that you can hear what it sounds like to focus on the parts that satisfy the legal requirements, and maybe leave out events which, while they might be very important to you, are not the most important or helpful to your claim.] At some points, I might ask you questions that the Asylum Officer [substitute correct title] might ask you. But I will let you know first that I am going to do that, so you will not think that I am questioning the truthfulness of your story. If we have time, and we think it would beneficial, I might ‘play the role’ of the Asylum Officer once I’ve told your story back to you. The point would be for you to become more familiar with the style and type of questions you might be asked. Throughout all of this, I am here for you. I work for you.”
One of the quickest ways to shut down a client who has started to trust you is to start “cross-examining.” There is a difference between asking questions to elicit more useful details, and making a person feel like you are judging them or don’t believe them. Look at the difference, for example, between the following two interactions:
1. “You just said that you were raped by men who entered your home. I am so sorry that this happened to you. I would like to ask you some questions that will bring out some details. I am not trying to make you suffer by remembering the story. I am trying to help you pull out details that would be very persuasive to the Asylum Officer and important for him to hear. Is it alright if I ask you these questions? [if yes, then:] Can you tell me what clothes they were wearing, what car they were driving, how many were present? Did they ever say anything to you or to each other while these events were happening? What happened when they left?”
2. “You just said you were raped by men who entered your home. What were they wearing? What kind of car were they driving? How many of them were there? Why did they let you escape? Did you report them to the police?”
The first may help the client understand why you are asking the questions and, crucially, that you are not judging them. The second scenario, by its abruptness alone, shuts down any trust that you are “on their side,” and is likely instead to make them wonder whether you believe them. By adding only a few sentences, you change the tone and create a human interaction.
If you have elected to represent a client, and you do not know for certain that the client is lying [in which case you would withdraw your representation], your job is to believe them, and help them tell their story in a way that applies their facts to the law. Your job is to believe in them. Really show that you are empathetically listening. If this makes you emotional, that is not the end of the world. Lawyers don’t have to be stoic to be effective. They can be human, too. While you don’t want your client to stop talking because they are worried about you, it is alright to respond emotionally to their story. You might also tell a client who is emotional that their genuine emotion is not only fine to show to the Asylum Officer, but often helpful.
Framing is very important. In this context, framing means beginning each area of law you are exploring by briefly explaining why you are asking the questions you are asking, or why you are asking them the way you are asking. For example, if you decide that mooting your client might be helpful, then say, “I’m going to ask you questions now that the officer might ask. I will also ask them the way the officer might ask them. I am doing this only because it might be useful for you to know what to expect. Although I might behave the way an officer might behave, I am doing this to help you, not because I do not believe you. Is it OK to proceed?” It is important to do this repeatedly, even if it feels redundant These framing moments might feel like wasted time when you are feeling overworked or stressed or frustrated with your client or your day. But they actually do not add much time, and what you gain is the ability to get much more cooperation, and therefore information, from your client, and allow you to better help them. All of this demonstrates respect for the client. Other ways of demonstrating respect: making eye contact, nodding or making other affirming gestures while they are speaking, giving them your full attention, asking if you can take notes, explaining exactly what your copies of their documents will be used for and assuring them that they would never get back to their persecutors, allowing the client to choose the seat (trauma survivors typically have a clear preference for near to/far from the door, checking in with them (about interpreter, whether they have questions, need a break or a tissue), simplifying your legal explanations (remember the goal is not to prove to them how much you know, but to make sure they understand), perpetually giving them control over the process by explaining why you are asking what you are asking. All of this helps to give back some agency to someone who has likely been stripped of it, and is suffering.
When working with interpreters, consider the following tips, and setting of ground rules:
- do not change pronouns. Address the client as "you,"
- interpret verbatim
- do not summarize. Doing so requires the interpreter to decide what is important. Deciding what is important is legal advice and that is your job, not the interpreter's
- speak in short phrases. Do not ask compound questions
- if the interpreter is engaging back and forth with the client, interrupt to inquire what is happening
- empower the interpreter to stop and tell you if they are picking up on verbal or non-verbal cues that something is wrong (e.g. the client is exhibiting stress that is impeding the interview or using a word or phrase that merits more inquiry)
- ideally the interpreter should speak a few sentences at the the outset to ensure good comprehension with the client; clients often want to please or not reveal lack of understanding.
- most of all, the lawyer must simplify explanations and words. It is not the interpreter's job to make this choice or have this responsibility
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