The importance of empathetic language in historical abuse claims

Historical abuse cases present unique challenges for the legal system. Beyond the legal complexities of limitation periods and evidence gathering, these cases require a fundamental shift in how we communicate with survivors. The use of empathetic language is not merely a matter of courtesy – it is a legal obligation essential to achieving justice.

A legal requirement, not an option

Vulnerability of a party or witness may impede participation and diminish the quality of evidence, and the court should take all proportionate measures to address these issues in every case. Practice Direction 1A requires all parties and their representatives to work with the court and each other to ensure that each party or witness can participate in proceedings without the quality of their evidence being diminished and without being put in fear or distress by reason of their vulnerability.

The overriding objective requires that the court should ensure, so far as practicable, that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence. In historical abuse claims, an empathetic approach is fundamental to fulfilling this objective.

In our work, we endeavour to extend this good practice to all communication within the context of historical abuse claims. 

Understanding trauma's impact on evidence

Research indicates that for those individuals experiencing trauma-related symptoms, attempting to relay their experiences can produce memories that are fragmented, lacking in specific details, and difficult to position within a linear narrative. 

Moreover, traumatic stress-related distress can be obscured by behaviour that gives the impression that an individual is not in distress when they actually are. Empathetic language helps create an environment where survivors can give coherent, accurate testimony despite these challenges.

When approaching cases, strive for empathy rather than sympathy. Sympathy involves feeling pity or sorrow for another's experience, empathy requires understanding the feelings of the person going through that experience. Language that recognises the emotional motivations and viewpoint of abuse survivors facilitates better communication, whatever the outcome of the case may be.

Preventing re-traumatisation

The legal process itself can compound the original trauma. Where there are allegations of the utmost seriousness including sexual abuse, and evidence of long-term underlying frailties and anxiety, these matters cry out for language and an approach that is sensitive and demonstrates understanding, not just for the sake of the vulnerable party but for the integrity of the legal process itself.

Language around historical abuse claims should include avoiding unnecessarily aggressive or dismissive language regarding traumatic experiences and avoiding unnecessary exposure to trauma-related material. The language used by all parties must reflect this sensitivity.

Practical implementation

Recognising the vulnerability of witnesses to abuse, legal representatives should adapt their language to ensure that no distress is caused as well as ensuring that a fair process is maintained. Think about formulating communication so it is clear, uses un-threatening language and avoiding complex or convoluted phrasing that may confuse or upset the witness.

The stakes are high

The consequences of failing to use empathetic language extend beyond individual comfort. Insensitive communication can:

• Diminish the quality and reliability of evidence
• Prevent survivors from participating effectively in proceedings
• Undermine the fairness of the entire legal process
• Cause further upset to someone who is vulnerable

As dispute lawyers, we also know that creating an environment in which parties can get to the crux of the issues, understand the best evidence and engage effectively is the best way to achieve resolution. 

Conclusion

In historical abuse litigation, empathetic language serves the core principles of justice: ensuring equal access to the law, obtaining the best evidence, and treating all parties fairly. It is not about lowering evidentiary standards or compromising rigorous examination – it is about creating the conditions in which we can understand each case using all the evidence available and make the right decisions on the basis of this insight.

Legal professionals handling these cases must recognise that empathetic language is integral to their professional obligations, and a key enabler of effective dispute resolution. To learn more, contact our abuse and social care claims team.