Thursday Thinkpiece: Anticipating and Managing the Psychological Cost of Civil Litigation
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Anticipating and Managing the Psychological Cost of Civil Litigation
Michaela Keet and Heather Heavin have published extensively about Litigation Risk Assessment. For access to some of this work, see the CREATE Justice website. Professor Heavin is Associate Dean of Research and Graduate Studies at the University of Saskatchewan, and Professor Michaela Keet is also on faculty at the U of S. Shawna Sparrow is a third-year student in the College of Law. With a B.Ed., Shawna has past experience working with young adults and decision-making processes. She will be clerking at the Saskatchewan Court of Appeal.
Windsor Yearbook of Access to Justice, Volume 34, Issue 1
Excerpt: Abstract, I. Intro, II. What is Litigation Stress?, IV. How is Litigation Stress Manifested?, and VI. What can Lawyers Do to Mitigate Their Clients’ Litigation Stress?
[Footnotes omitted. They can be found in the original via the link above]
Despite growing national attention on the costs of accessing justice, surprisingly little information has been collected about the psychological ‘costs’ of engaging in litigation. This article summarizes the health and psychology literature, to present a picture of the impact that litigation can have on litigants’ health, state of mind, life goals and social relationships. Set against professional obligations embedded in the lawyer’s role, we assert that awareness of the negative impacts of legal processes on the emotional and psychological functioning of clients is important. With greater awareness, lawyers can better assess the value of litigation, prepare their clients (and themselves) for litigation stress, and, where appropriate, take preventative actions to minimize the negative aspects of the litigation experience. With that in mind, we identify positive solution-oriented responses to preventing, reducing and alleviating litigation stress. These strategies focus on client-centred communication, supports and planning.
I. INTRODUCTION
The direct financial cost of civil litigation–and how that impacts individuals and social systems–has dominated the access to justice policy agenda for the last several years. Legal fees and administrative costs associated with suing or being sued are viewed as creating a ‘gateway barrier’ for justice-seekers. Until very recently, studies on the costs of civil litigation have therefore centred on these actual legal costs and direct financial outcomes, with less consideration for the social and psychological dimensions of the process. In Canada, that is beginning to change with the Costs of Justice Project’s exploration of the multi-faceted effects of unresolved legal conflict and the National Self-Represented Litigants Project’s collection of personal experiences with the justice system. We already know that the litigation environment can cause chronic stress for lawyers. Still, the litigant’s experience – “the full extent to which litigation is stressful and what factors of litigation exacerbate or mediate psychological symptoms”–has not been well studied. The health and psychology literature offers a starting point for better understanding such consequences.
Raising awareness within the legal profession of litigation’s psychological impact opens up questions about professional responsibility and ethical lawyering. While lawyers are not bound to a ‘do no harm’ principle, Codes of Conduct require lawyers to consider the interests of their clients by holding them to standards of competency and quality, including requiring lawyers to provide honest and candid advice and information to clients. As a result, awareness of the negative impacts of legal processes on the emotional and psychological functioning of clients is important. With greater awareness, lawyers can better prepare their clients for litigation stress, and, where appropriate,take preventative actions to minimize the negative aspects of the litigation experience. Within a larger frame, this article provides an impetus for the profession to ‘do better’ in designing and developing processes with the end-user in mind. If the processes utilized to resolve conflict compromise the well-being of participants, then we must seek out better process solutions and supports: The protective value of law must not be outweighed by the psychological or emotional expense of enforcing such rights. We recognize that unresolved conflict is also stress-inducing, and that the ability to access legal processes can also have beneficial emotional and psychological impacts, distinct from the financial outcomes.
In this article, our initial starting point is to acknowledge the litigation stress experienced by individuals engaged with the civil justice system. We then identify the types of claims or proceedings where certain types of physical, social and psychological impacts have been observed, documented or studied. A third and critical goal of this paper it to provide the reader with further information about how litigation stress may manifest in other social and psychological forms, including: anxiety, emotional and relationship difficulties, impaired memory function and neurosis. While the literature primarily focuses on the individual client experience, we also touch upon community impacts, as well as impacts experienced by lawyers themselves. How certain steps in the traditional litigation process can cause and exacerbate stress is the focus of the fourth section of this paper. Attention to procedural impacts is important as the fifth part of the article identifies positive solution-oriented responses to prevent, reduce and alleviate litigation stress. These strategies focus on client-centred communication, supports and planning. On the assumption that this is an issue of pressing concern, and one that needs significantly more attention in law schools, sites of legal practice, and policy-makers’ boardrooms, we conclude with suggestions for further study and research aimed at examining and improving the experience of litigants and their lawyers.
II. WHAT IS LITIGATION STRESS?
It is clear that people can and do respond to a legal process in a way that is distinct from its outcome. Although a legal process itself can have therapeutic benefits, the more common documented impact is harm–emotional and psychological harm. It has been argued that precise terminology is needed to describe emotional harms resulting from the legal process and that these harms are widely recognized yet are treated as invisible inside the legal process. Psychologists offer several labels, without consensus. “Critogenic (law-caused) harm” is described as the “intrinsic and often inescapable harms caused by the litigation process itself, even when the process is working exactly as it should.” “Litigation-response syndrome” is “made up of complaints that arise solely from the experience of being personally involved in a lawsuit, rather than the events that precipitated the litigation.” Finally, the general burden of stress accompanying litigation has been called “forensic stress,” which in some individuals develops into “forensic stress disorder. ”
From the perspective of some psychologists, this type of stress warrants its own diagnostic category. Litigation-generated stress is, on some levels, voluntary: litigants opt-in. Litigation stress is also unique in that its impact is temporary, whereas other stress disorders can continue indefinitely. Stress can begin as early as the first notification that one is going to be sued and lasts until well after litigation has ended. Most importantly, it intensifies at critical stages or “psychological soft spots” in the litigation process: important examinations or questioning, independent evaluations, pivotal hearings and the trial itself.
Empirical research raises the alarm about psychological impact, but is not conclusive, in part because of the difficulty of distinguishing between the strain caused by the original loss and that caused by the process. The research is also constrained by its limited focuses on particular types of claims, such as worker’s compensation or motor vehicle accident cases. Here, research historically suggests a correlation between continued litigation, stress, injury and symptomatic complaints, and concern about “litigation neurosis” (or, in insurance vernacular, “malingering”) has long influenced the management of WCB and MVA cases. Some attempts have been made, more recently, to broaden the scope of the research to civil litigants, more generally. In 2007, Zapzalka administered questionnaires to plaintiffs and defendants recently involved in legal processes in Minneapolis, to measure anxiety responses to hypothetical scenarios. The data suggests that those previously involved in a courtroom trial had higher perceived anxiety than those previously involved in an alternative dispute resolution. In sum, an “intellectual void” surrounding the relationship between litigation and psychological health has been acknowledged, but research and theories presented over the past two decades do begin to paint the following picture.
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IV. HOW IS LITIGATION STRESS MANIFESTED?
Anxiety resulting from litigation can interfere with a client’s daily mental, emotional and physical life. According to Cohen, lawsuits often trigger emotional reactions and disarrayed thinking in clients. For some clients, their interest narrows exclusively to things related to their case. Other litigants experience the opposite reaction of trying to avoid anything associated with the lawsuit. These clients will avoid conversations, people and activities in any way connected to their case. Many are haunted by memories of the investigative inquiries, dispositions and the experience of giving testimony. Anything related to the lawsuit in general, such as a television program or movie, can trigger thoughts about their own legal action, resulting in headaches, nausea, sweats, muscle tension and shakiness. For some clients, the agitation can become so severe that they experience panic attacks. Litigation-induced anxiety can interfere with daily functioning, as some clients experience difficulty with social situations, or going to work or school. Litigation stress can extend beyond waking hours, and cause problems such as sleeplessness and disrupted dreams. Lees-Haley also lists appetite disturbances, lowered self-esteem, disruptions of attention and concentration, indecisiveness, disruptions of sexual functioning, and feelings of hopelessness and pessimism as complaints associated with litigation stress. Other symptoms include anger, frustration, humiliation, indecision and despondency.
Stress and its accompanying emotions may also impede decision-making about how or whether to proceed with litigation. “Strong emotions may cause decision makers to act impulsively, focusing on short-term rather than longer-term goals”. For example, studies by Huang and Wu show that certain emotional responses can increase the chances a client will choose to sue rather than settle. The emotions of anger and pride generally lead to a higher frequency of trials even when the case has a “non-positive expected wealth value” for the litigants. While people generally want to maximize their outcome, they are also motivated to make decisions that will protect their self-image, and the tension between these two motives can complicate decision-making. Other factors that interfere include mental depletion, and fight-or-flight reactions, in addition to the external influences of framing and anchoring. The quality of decisions decreases when clients are feeling mentally depleted. Brain functioning is said to require twenty percent of the body’s total energy consumption, a much higher proportion of the body’s energy resources as compared to other organs. The brain naturally shifts to an “autopilot”, or sub-rational mode to conserve energy. This is especially likely to happen when a client is chronically emotionally and mentally exhausted. In the midst of this, cognitive “blind spots” are sure to affect decisions about whether to continue litigation, or not. Litigants may march forward, later finding themselves in the midst of a process with an unforeseen impact, or with an outcome they regret.
The legal process can also strain the litigant’s relationships, causing the support systems of the litigant to “burn out.” Many litigants have a compulsive need to talk about the experience which exceeds the patience of their friends and family members. In this way, litigation can be a very isolating experience. Strasburger describes the embarrassment and humiliation of the lawsuit as having the potential to shrink the social world of the litigant. Ongoing litigation enables clients to put their lives on hold, and so avoid other aspects of their lives they do not want to deal with. Where the matter being litigated involves those familiar relationships–such as with a litigated divorce–the strain can be particularly intense. However, even where the matter being litigated is independent, families can experience considerable strain, with a discernable increase in disruptiveness, disorganization or incapacitation. The detailed review of the traumatic event itself, along with frequent discussions about the physical and psychological results of the ordeal can keep the family focused on the past, reaffirming disability and dysfunction while undermining attempts to move forward. The constant rehashing of the event can exacerbate flashbacks, nightmares and physical symptoms. The occurrence and nature of the litigation stress will be influenced by the intermingling of family characteristics, and litigation and lawyering styles.
Some cases spread the impact of the strain beyond the individual experience to the community level. A study of the twenty years of litigation over the Exxon Valdez oil spill documented its tremendous toll on the communities and residents of Prince William Sound. The study identifies litigation as a ‘secondary disaster’ operating independently of other issues related to the spill, such as continuing ecological contamination and loss of fisheries resources. Lawsuits involving large-scale technological disasters are especially stressful as they have the added complexity of scientific, factual information. Research reveals that the adversarial litigation contributed to the development of a “corrosive community”, characterized by “a loss of trust in civic institutions, social isolation, group conflict, mental health problems, deteriorating social relationships and the emergence of ‘corrosive social styles’ which perpetuate the continuous loss of community”. The litigation was associated with damaged social relationships, increased conflict and serious mental health problems throughout affected communities. The litigation also destabilized the sense of community and trust in others among residents. The 2009 Supreme Court decision to reduce the punitive damage award has resulted in continuing social and psychological losses for the area. The authors of the study predict that community recovery may not occur during the lifetime of the plaintiffs. Shreve affirms that conflict over equitable damage payments, stress from protracted legal procedures and uncertainty about outcomes can undermine recovery in post-disaster communities.
In several ways, litigation stress can interfere with the litigator’s attempts to advance the substantive case. For example, litigation stress can impact the client’s memory function. The vagaries of memory are well known, but stress hormones can have particular impact, impairing short-term memory-which explains why clients often have difficulty remembering issues they have already discussed with their lawyer. Stress also has the potential to distort memories, which can make it difficult for lawyers to distinguish between facts that are legally relevant from those that are not. The extreme stress and anxiety of feeling attacked under cross-examination can diminish a client’s ability to function effectively as a witness. High cortisol levels can result in mental errors and impair a client’s ability to remember and process information.
Feelings of hopelessness and fear in the client can actually contaminate the results of a medical examination needed to help prove a client’s injury claim. The stress of litigation can produce an intensified or distorted clinical presentation upon examination. This can result in incorrect diagnoses, as well as the misattribution of causation. False responses to questions can also arise if the client is second-guessing the evaluator or the significance of the questions being asked. For litigants experiencing pain due to injury, litigation adds stress and disruption to both the medical diagnosis and treatment.
Where a client conveys emotional numbness or lack of affect, professionals evaluating the client may conclude he or she is not emotionally affected by their experiences. Under-estimating a client’s distress can lead to a false diagnosis of “compensation neurosis”, the tendency for symptoms to persist only as long as the potential for compensation continues. This misdiagnosis could in turn reduce the client’s compensation claim. When a claimant has recovered from injury but then becomes worse after meeting with an attorney, it is often interpreted as malingering. However, the worsening symptoms could in fact be due to litigation stress. The difficulty in distinguishing litigation stress symptoms from complaints listed among damages can interfere with evaluations regarding the claim. Overlooking the impact of litigation stress on symptoms can result in incorrect psycholegal opinions. The failure to recognize the effects of litigation stress can also interfere with assessments of competency or fitness as a parent. When an expert witness is aware of litigation stress, he or she can better separate stresses from the original injury from those intrinsic to the litigation process.
These manifestations of litigation stress can reach into the lawyer-client relationship and erode the client’s trust. A client’s dependency and vulnerability can enhance sensitivity to perceived slights. Even an unreturned phone call can erode the trust in the lawyer-client relationship. In exaggerated cases, clients may overreact to their attorney’s mistakes.
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VI. WHAT CAN LAWYERS DO TO MITIGATE THEIR CLIENTS’ LITIGATION STRESS?
Litigants experiencing stress do not have the necessary perspective to recognize these symptoms, or to distinguish them from other factors related to their case. Likewise, attorneys may observe stress-related symptoms exhibited by their clients, but have no way to determine whether those symptoms are caused by the litigation process itself, or by other factors such as pre-existing conditions related to the litigation. Symptoms of litigation stress can be easily confused with conditions created by the original conflict or dispute. Furthermore, neither lawyers nor clients tend to be aware of how stress can contribute to clouded cognitive processes, and impaired decision-making during the litigation experience. By failing to recognize litigation stress, lawyers do not adequately prepare their clients for the emotional burdens of the litigation process itself, or even for the careful decision-making process that should be ahead of them.
A. Client Control – Information, Communication and Informed Decision-Making
Clients generally find legal procedures more satisfying when they are involved in or feel some control of the process. According to Lenhart and Shrier, litigants who fare the best emotionally are those who set realistic goals, maintain a sense of control of the litigation process, seek out adequate support, appreciate and focus energy on restoring the original equilibrium of their lives and adequately acknowledge and grieve the losses that come with litigation, even when it has a favourable outcome. Diesen and Koch suggest that litigation stress can be reduced by lawyers providing a clearer dissemination of information to claimants about the litigation process. Clients with little litigation experience can benefit from “surrogate knowledge”-information about how other people tend to experience an event.
The conveyance of information by lawyers to their clients can be viewed as an educational process that may counteract feelings of loss of control. Clients with accurate information about the strengths and weaknesses of their case and a realistic assessment of the anticipated outcome and value of their case, are better equipped to make informed decisions. Client-decision-making is enhanced when counsel can engage in a focused dialogue about the client interests that can be served inside or outside the litigation process. Truly informed decision-making also requires clients to be equipped with clear and realistic predictions of the expected outcomes to be achieved from utilizing legal processes. This assessment of anticipated outcome must include a clear prediction of the anticipated financial value of the client’s case, but also the social and psychological impact costs of litigation that may be experienced by the client in order to achieve the anticipated outcome.
Open communication between the lawyer and client can enable a lawyer to understand their client and assess the impact of getting a trial outcome from the perspective of the client. Presenting information in concrete rather than abstract forms, breaking it into manageable segments, and using visual aids (flowcharts and decision trees) are all considered superior communication strategies. Such strategies are helpful in delivering information to clients, but also counteract cognitive biases normally at work in the human brain that cloud judgment. Clients with particular vulnerabilities may need a more targeted discussion of–and, if necessary, planning for – the litigation’s ‘psychological soft spots’. All of this is best advanced if the lawyer employs a client-centred approach (or a team mentality), with a commitment to engaged and active listening.
B. Weighing Litigation and Considering Alternative Processes
Strasburger recommends the lawyer and client attend to the risks and inevitable psychological stress of the legal process before the client commits to litigation. Wu and Huang suggest it is possible to construct an economic model that allows for lapses, regret and psychological conflict involved in legal decision-making. Raising possible areas of impact, and even inviting the client to take some time to reflect or map out the pros and cons, will contribute to slow and systematic decision-making.
As part of this, lawyers are encouraged to discuss the full range of process alternatives with their clients. As an example, FitzGibbon has recommended mediation as an alternative to litigation to resolve sexual harassment claims, pointing out that the mediation process can be faster than litigation which allows recovery for the victim to begin sooner. She suggests that mediation can facilitate recovery by allowing the victim to be heard, understood and treated respectfully, and avoid the damaging dimensions of examinations and assessments of credibility that accompany litigation. Mediation can also protect privacy and allow the exploration of creative remedies. On the other hand, mediation and other consensus-based processes–especially in situations affected by coercion or the abuse of power–carry significant risks. We are reminded that “… there is not one but multiple paths available to the claimant. Each path presents its own measures of costs and uncertainty in connecting the claimant to the desired outcome. Each path to justice, therefore, has a particular cost of access associated with it.” A very complete risk analysis would consider projections and process costs–comparatively–taking several different justice paths into account in any given case.
C. Monitoring for Stress and Decision Fatigue
While informed decision-making by clients is fundamental to the lawyer-client relationship, it is important to monitor clients for “decision fatigue”. Studies show that making repeated decisions depletes individuals’ mental resources, making them more likely to decide in favor of the status-quo. Some lawyers will remind clients to eat foods high in protein and low in sugar when preparing for a negotiation or mediation, as these foods promote a slow and continual release of energy. Because stress and fatigue tend to result in more conservative choices it is necessary to allow clients sufficient time for important decisions. It is especially important to slow down the thinking process for clients when their understanding of legal concepts is limited. Therefore, scheduling multiple negotiation meetings is preferable to one single long meeting because the client will have time to reflect on various options. Breaking up important processes is also an effective way to prevent regret. Clients often regret rushed decisions. When clients can move gradually in the direction of agreement they can better endorse what they are signing.
Seamone recommends that lawyers regularly search for signals of impaired decision-making capacity and competence throughout the litigation process. Murdoch maintains that understanding how people think and how they can be persuaded is critical to the professional work of every lawyer. It is important to realize that many of the client’s decisions are being made outside of his or her realm of awareness. Functional magnetic resonance imaging studies suggest that over 90% of our decisions are actually made subconsciously. The trauma of litigation can trigger reactions in the body that prompt a fight-or-flight reaction. This type of reaction can destabilize clients during times of important decision-making. A sign that a client may be in the midst of a fight-or-flight reaction is when he or she has a vacant expression during an intense consultation.
D. Advanced Planning and Collaboration with other Professionals
If the litigation is proceeding, lawyers can prepare clients by educating them about potentially stressful information gathering or discovery processes and be assisted, where necessary, by professionals with appropriate interviewing or counselling skillsets. For example, where interviews are necessary as part of the collection and assessment of evidence, Fulcher recommends having an expert interviewer, trained in therapeutic counselling skills, perform the enquiry in such a way as to gather the necessary and sufficient data to meet the health and legal requirements for the case while simultaneously looking after the therapeutic needs of the victim/client. He also advises the interview be videotaped to limit the number of times the client needs to tell his or her story, as well as supplementing the initial interview with psychometric assessments such as questionnaires.
If lawyers choose to conduct client interviews themselves, Diesen and Koch recommend the use of a structured interview that will gather relevant background information needed by all professionals involved. They also recommend reducing litigation stress by producing a typed chronology of medical attendance history so that medical history for accident-related problems is known to the experts prior to the assessments. A full description provided in the instruction letter could also reduce the number of times the client must discuss an accident.
Mid-litigation examinations under oath may require extra preparation. The fear of presenting evidence under oath can be alleviated by making clients aware that the litigation process is an affective experience. Once aware of the emotional impact of testifying, the lawyer and client can then better plan the testimony. Winick also suggests attorney-client discussions and role-play exercises can be helpful in giving clients information control over the experience of providing testimony. Many lawyers do not engage in a follow-up discussion following the deposition, leaving the client feeling confused and uncomfortable. Stolle advises a post-deposition debrief in order to follow up with the client on any important legal points. A thoughtful debriefing session can also minimize any lingering anxiety over what the client has just experienced.
Clients with vulnerabilities such as those identified above may need more time and information to identify the litigation’s ‘psychological soft spots.’ Seamone recommends exploring the client’s reactions to previews of the different phases of the litigation and then developing contingency plans. The lawyer should ask the client to consider how he or she may react to certain pieces of evidence or segments of testimony. With this knowledge, the lawyer can identify areas that need to be approached in a more cautious manner. A careful planning process for the litigation can prevent overwhelming reactions to triggers. It may be helpful to have someone from the client’s support network attend important court dates.
When working with families, the client-centred lawyer should monitor the family’s response to the lawyer’s involvement. With certain families, it may be helpful for the lawyer to communicate with a health care provider about the effects of litigation stress and how to deal with them.
An attitude of professional collaboration could also encourage the lawyer to view the court system–and judges in particular–as contributors to (rather than detractors from) such a thoughtful approach. For example, changes in civil court processes toward increased file management and settlement-oriented discussions enlarge the role of the judge in thoughtful litigation planning.
E. Lawyer Self-Care
While being aware of the effects of litigation stress on clients, it is also important that lawyers be mindful of the stress they themselves experience. Lawyers are vulnerable to many psychological distresses, including compassion fatigue. As lawyers are exposed to the pain and distress suffered by their clients, there are cumulative psychological and physical effects often termed as “compassion fatigue” which results from having empathy for traumatized or suffering people. Over time, lawyers learn to subordinate their own emotional responses to the more objective needs of the client’s case. Symptoms of compassion fatigue include cognitive effects such as lowered concentration ; emotional effects such as guilt, anger and fear, as well as behavioural effects such as moodiness, appetite change and isolating oneself from others. Frequent exposure to traumatic information can also affect job performance, eventually leading to a reduced ability to communicate and work with colleagues. A lawyer’s impaired ability can have adverse effects for the client, the public and the individual, in a profession that already struggles with statistically higher levels of depression, anxiety and stress. Lawyers may be more vulnerable to mental health issues because the very traits necessary to be a successful lawyer also have the potential to become psychological distresses. For example,appropriately directed anger can help lawyers passionately represent a client’s interests, yet can also be destructive when not properly managed.
Although compassion fatigue is usually associated with social welfare and mental health professions, lawyers can be more susceptible to its effects. The legal profession is characterized by conditions that are inherently stressful. The lack of education and training providing protective factors from the adversarial nature of litigation is also a factor. While collaboration is encouraged in medical and mental health education, law schools tend to involve a more competitive model of instruction. The lack of consultation and cooperation can create a climate of isolation as lawyers are pressured to become self-reliant. Legal education rarely involves an interdisciplinary approach, leaving lawyers with little understanding about the effects of working with disenfranchised and traumatized populations. The requirement of client confidentiality also precludes the opportunity for lawyers to share their daily stresses with friends and family. Secondary traumatic stress, the stress resulting from helping a traumatized or suffering person, is also closely related to compassion fatigue. Secondary trauma can result in intensive imagery of the client’s traumatic material as well as feelings of dread and horror.
Attention to self-care is recognized as critical in ensuring that lawyers are able to manage stress and avoid the anxiety, depression and burn-out that may be experienced. Attention to these risks exists within the legal profession has resulted in the introduction of reflective practice and attention to self-care by both the professions and within law schools. There are also numerous professional development/on-line learning programs, supports and initiatives being promoted by legal and non-legal organizations. This shifts attention to developing positive physical and mental wellness behaviours, enabling lawyers to achieve the competencies necessary to assess the legal and psychological needs of their clients.
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