Thursday Thinkpiece: Anticipating and Managing the Psychological Cost of Civil Litigation

• Author: Administrator
• Date: July 12, 2018

Periodically on Thursdays, we present a significant excerpt, usually from a recently published book or journal article. In every case the proper permissions have been obtained. If you are a publisher who would like to participate in this feature, please let us know via the site’s contact form.

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...