Impact of Litigation on Your Client’s Health
Despite the interdisciplinary nature of law, lawyers rarely turn to medicine to look for the intersection between the two fields.
The exceptions to this would be the endless debate about work-life balance. For example, The CBA Futures report makes several references to health and wellness for lawyers as part of a sustainable practice.
Another intersection would be the recent focus by the Ontario Bar Association’s initiative, Opening Remarks, to promote conversations about mental health in the profession. This is an initiative led by the OBA President, Orlando Da Silva, based on his own experiences with depression.
Occasionally there are ambitious individuals who obtain both a law degree and a medical degree. Given the inherent limitations of our modern lifespans, and the intrinsic demands of each profession, it’s unlikely that these people gain an in-depth understanding of both, but the combination can make for some interesting conversations.
Stephen J. Busalacchi conducts a number of interviews in his book, White Coat Wisdom: Extraordinary Doctors Talk about what They Do, how They Got There, and why Medicine is So Much More Than a Job. One of the physicians he interviews is Richard Roberts, who practices family medicine in Belleville, Wisconsin and writes about topics like reducing malpractice risk in medicine.
In his interview, Roberts says that he has a very different perspective of lawyers than many of his medical colleagues, “nobody likes a lawyer until you need one…” But then he continues, “…and then you want the toughest, meanest SOB, you can possibly find on your side.”
Part of this sentiment is reflected by the litigious nature of American society, and a different attitude towards costs in the different countries. In a post-Groia world, civility and restraint are not only characteristics of professionalism, they are values which have significant sanctions and consequences for the licensee.
During the civility crusade which has permeated Canadian legal ethics for the past decade, countless judges and experts emphasize that incivility does not benefit the client, adds additional expenses to the proceedings, and burdens the justice system. Yet the perception by many in the public is that they still want nothing less than a bulldog by their side. For this reason, the commentary to Rule 4.2-1 of the Model Code of Professional Conduct prohibits advertising that would suggest or imply that a lawyer is aggressive.
We sanction untowards behaviour in Canada by awarding costs, typically on a partial or substantial indemnity scale. As a Legal Post article discussing Tossonian v. Cynphany Diamonds and Hearing Clinic (Niagara Falls) Inc. v. 866073 Ontario Ltd. highlighted recently, even the winner in litigation can occasionally be denied costs entirely due to their conduct. But these costs only compensate for legal expenses incurred, not the enormous emotional and psychological turmoil that litigation can take, especially with uncivil behaviour or frivolous actions.
The Canadian Forum on Civil Justice (CFCJ) has attempted to explore some of these costs outside of legal expenses in their Cost of Justice initiative, which has interviewed over 3000 people. The CBA’s Equal Justice report laments the scarcity of data on the impacts of law on the public, and lauds the CFCJ effots to collect this data. The CFCJ project is part of a 5-year grant, funded by Social Sciences and Humanities Research Council of Canada, and they released a fact sheet this week of some of their preliminary findings.
Some of the key problems with justice identified here include:
- Everyday legal problems have several associated costs. Nearly 18% of people who reported having a legal problem experienced stress or emotional difficulty as a direct consequence of having that problem.
- The percentage of respondents reporting they experienced a physical health problem as a result of the legal problem increased from 39.1% for people 18-35 years of age to 61.5% for individuals aged 55-64
- Women were more likely than men to identify a physical health problem as a direct result of a legal problem; 67.1% of women compared with 53.2% of men.
The cost consequences of litigation, and the existence of unnecessary or prolonged litigation, rarely takes these impacts into consideration. If lawyers want to improve the manner in which they are perceived by the public, they should recognize that the work they do may also have significantly detrimental effects, not only to the other side in litigation, but to their own clients. Ideally this is something that should be something weighted more heavily by the bench.
In addition to utilizing greater supports to enhance their own health and wellness, they should develop contacts and resources for their clients to help assist them through their trying times. The stress-based and medical impacts of proceedings must be taken into consideration in client communications by ensuring they have their clients have proper supports in place and strategic decisions in litigation minimize the impact on all those involved.
A couple years ago I discussed emotional intelligence and importing the latte method into legal services. I concluded by stating, “…it’s time we tell ourselves, “Lawyer, heal thyself.”” Unfortunately, given the impacts of legal problems highlighted by the CFCJ Cost of Justice project, lawyers must also heal their clients.
The stats presented strike me as odd, in that people are able to identify experiencing a physical health problem more readily than an emotional component, in their interactions with legal system. Mind-body-emotion are inextricably linked. If a physical health problem has manifested, then there is stress within the person, yet your stats indicate they can report the physical aspect, but not the “stress” aspect. It gives me pause for thought on the emotional disconnect people experience in trying to interact with the system. I noticed Orlando, (supportive thoughts to him for coming forward), told his coworkers that his health issues were physical, when he was recovering from personal crisis.
We are energetic beings. East-Indians and Chinese have mapped the energetic interrelationships for thousands of years. If someone going through legal system reported physical symptom of indigestion, loss of appetite, for instance … well, that would be the solar plexus chakra which relates to issues of personal power. Perhaps it would begin with feelings of anxiety, fear. (why would it be that people in our society would have difficulty identifying such?)
Anodea Judith’s book, “Eastern Body, Western Mind”, is a good map of the 7 main chakras, (energetic centres). (detailing various traumas and abuses that might be experienced, and the impact that might have on individual chakras within the energetic system, etc..) (the first version of the book I had, I leant to maybe a dozen people over a decade; the most current version is on loan. Resonates to a lot of people.)
Anything that gets people out of their head, and engaging with their larger humanity, consciousness … yoga, martial arts, meditation … Lots of possibilities. (I think it was a link on Mitch K’s blog, one time, that led to an article on “Humanizing Lawyers”; a memorable title). Fully engage with one’s humanity and one’s life experience. (which will in turn be reflected in how one practices law, or any other thing one does).
Although the east-west dichotomy may have held true in the past, this has gone significant change over the years. A decided shift from a medical model to a holistic model was identified in 1948 in the Preamble to the Constitution of the World Health Organization,
The conception of a holistic model of health has been depicted by Dahlgren & Whitehead as follows:
This definition was followed by the 1986 Ottawa Charter for Health Promotion definition of health, promoting a wellness model,
Without question there is an intersection between the psychological, social and physical. This is already recognized in health, but is still making its way into other disciplines which have an impact on all of these domains, even when it is not fully recognized.
“It is no measure of health to be well adjusted to a profoundly sick society.” (Krishnamurti)
It makes me smile, Omar, that you are so capable of launching so much info (on prob. any topic one cares to name?) I’ll just add that as far as the legal environment: the legal process itself can be viewed as a trauma on our energetic system overall, and within specific chakras (energetic centres.) That needs to be addressed … shifting to a more healthy interaction. (Starting points can be costs sanctions for those acting aggressively, etc.) (altho’ that’s still at a surface level)
You mentioned your clients in need of healing from the very legal process itself. Does that not give pause for thought — if the aspect of our society that deals with our values of justice and truth, is itself an onerous system, instilling trauma in the participants? That healing, major debriefing required, just by interacting with the system? Your stats indicate that only 6.7% of people bother engaging with the legal system at all to resolve their problems. (It doesn’t surprise me why people don’t want to engage with such an onerous, unhealthy system.)
You mentioned the “bulldog” type of lawyer, (a recognizable feature to the extent we may even consider it an “archetype”?). Throat chakra: at one end of the spectrum is the party who is silenced, shut-down; at the other end of the spectrum is the party who speaks aggressively, seeks to shut-down the other. Neither extreme is operating from the central position of balance. The “Bulldog” is not personifying health, yet the bulldog is successful in the legal system. Oppressive tactics from solar plexus chakra …. These do not bespeak healthy energetics … and it is built into the very system. (I realize I may be speaking too far afield for this particular venue; but, it’s just regular stuff for me.)
” The “Bulldog” is not personifying health, yet the bulldog is successful in the legal system.” I don’t think “successful” is the right word but the bulldog is certainly more rewarded not just in the legal profession but in other institutions and organizations and described as “gravitas”. One of the key requirements or characteristics for leadership is “gravitas”. For anyone who can explain, is the bulldog persona gravitas or is gravitas the bulldog persona?
I’d rather that the “Bulldog” be “persona non grata.” I did not understand your meaning, on first reading, Verna. But, it is somewhat interesting that the dictionary includes “gravitas” to mean, “to sink or fall; tend to settle at a bottom level.” The Fallen Ones. Not the sort of “leadership” that I am interested in participation with.
Some of the stress is from the conflict that leads people to the law to find a solution; not all of it should be attributed to the legal system itself. I agree that it is worthwhile to figure out how to minimize the stress added by the legal system, though different measures will work for different people.
I don’t think a bulldog personality has anything to do with ‘gravitas’. I take the latter term to mean ‘recognizable seriousness of purpose’. The bulldog may act with serious consequences, but (a) that’s a different sense of ‘serious’, and (b) gravitas needs reflection and self-awareness that do not necessarily characterize the bulldog.
There was a reference to depression in lawyers being 4 times that (of the general population?) somewhere through links I clicked on from Omar’s materials, (that I can’t find now.) What might be the cause(s) of the emotional/psychological toll on lawyers? (not just clients.) There is a human cost when systems are dysfunctional.
I realize this might not seem relevant, but coming from a Humanities undergrad, I’ve always been interested in social systems and their impacts. On the Truthdig website, there is a 10 min. video of Japanese workers who live in cubicles in internet cafes. Depression was mentioned:
I take John’s point that legal problems themselves are often the source or the origin of stress. But the legal system need not always be stressful, or unnecessarily exacerbate stressful conditions.
Legal processes can potentially have an ameliorative and conciliatory goal, in particular in restorative justice models. The adversarial legal system has largely eluded or ignored this objective, largely in part of its historic roots, as well as the cultural blinders that Sue references.
We have seen some of these alternative systems implemented following atrocities and genocide in places like Rwanda, or following political and social turmoil in South Africa. We have seen some emergence of restorative models for First Nations in Canada.
An argument can be made that the principles of sentencing in criminal law incorporate rehabilitation, which itself is a restorative goal between the offender and society. Little is done to help restore the relationship with the victims or survivors, and civil actions usually only exacerbate these traumas.
Aside from that, the legal system as a whole in Canada is largely oblivious of its ability, and perhaps its obligation, to heal, mend and restore relationships of the parties in any conflict. These roles are typically delegated to the health professions. Mandatory mediation in the civil context is perceived as more of a procedural goal to reduce the issues in dispute or find a reasonable settlement, rather than a substantive objective of conciliation.
But as the WHO models indicate, these intricacies and factors all interconnect, and a more effective legal system would be reformulated to ameliorate unnecessary stress and health impacts, properly account for resolution which does not require adversarial positioning.