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Litigation as Violence

by John Lande
April 2015

Indisputably

John Lande

I just read a provocative article entitled, “Litigation as Violence,” by Vincent Cardi (West Virginia), 49 Wake Forest L. Rev. 677 (2014).

You may want to assign this nine-page article (and/or this post) in your classes, which may stimulate valuable discussion about the consequences of lawyers’ work for their clients – and themselves.

Professor Cardi notes that, although the word “violence” sometimes implies physical acts causing injury, some definitions refer to nonphysical acts. Synonyms include “words not normally used to describe physical force or damage, including ‘coercion, compulsion, constraint, duress, [and] pressure.’”

Of course, litigation is an important part of the dispute resolution system and it is quite legitimate for people to use it in appropriate cases. Litigation (including negotiation and mediation conducted during litigation) often functions appropriately without causing undue violence or other harm. People usually don’t pay as much attention when things work properly and this may be the case with litigation most of the time.

But too often, unnecessary injury is a by-product.

“Litigation as Violence” discusses adverse consequences from merely being engaged in litigation, referring to “critogenesis” (“litigation-caused emotional injury”) and “litigation response syndrome” (“LRS”).

The psychological damage associated with critogenesis / LRS is apparently best described by the symptoms associated with it. One psychologist lists these symptoms as stress, anxiety, depression, irritability, difficulties in concentration, loss of motivation, loss of social involvement, loss of enjoyment and pleasure in life, aches and pains, low self-esteem, feelings of detachment or estrangement from others, exaggerated startle response, and recurring thoughts relating to litigation. Where the litigation concerns personal injury, this same psychologist adds other symptoms, including problems associated with post-traumatic stress disorder, insomnia, tension, restlessness, dizziness, appetite disturbances, low energy, lowered self-esteem problems, disruptions of attention and concentration, indecisiveness, agitation, feelings of hopelessness and pessimism, disruptions of sexual functioning, distressing dreams, headaches, numerous other physical complaints, and related problems affecting marriage and family life. (Footnotes omitted.)

Cardi points out that plaintiffs often do not anticipate the emotional stress that they may experience resulting from lawsuits they file. Even plaintiffs whose claims are completely justified may be unnerved when defense counsel impugn their integrity as they aggressively advocate the defendants’ interests.

“Litigation as Violence” reminded me of interviews I did with business executives whose companies usually were defendants in civil suits. Many of the executives felt morally affronted to be entangled in the legal system, which they saw as full of frivolous litigation decided by juries who are biased against businesses. Paradoxically, winning suits can aggravate their reactions as they resent having had to endure attacks on their reputations and pay a lot of legal fees to prove their innocence. Of course, defendants often settle cases to cut off the risk and expense of litigation, which also can be maddening when they believe that they did nothing wrong. To these defendants, litigation is legalized extortion.

Criminal defendants can feel that they are in a Kafka-esque nightmare where the “process is the punishment,” in the words of Malcolm Feeley. They may face the agonizing choice of pleading guilty to a crime they didn’t commit or going to trial and risking extra hassle, expense, and punishment for refusing to cop a plea.

The common counteroffer process in civil negotiation and mediation can be very disturbing. In the typical kabuki dance, litigants commit to and then abandon a series of disingenuous offers in rapid succession, “giving away” more and more of what they feel they deserve. They often are outraged when the other side takes positions that are radically divorced from their experience of reality. They may be shocked when they believe they are being reasonable, only to find that the other side is trying to eat them alive.

Lawyers also are harmed by legal practice as well as legal education itself. A particularly well-designed study found that law students often experience serious distress in law school that continues afterward. “Law student symptom levels were elevated significantly when compared with the normal population. These symptoms include obsessive-compulsive behavior, interpersonal sensitivity, depression, anxiety, hostility, phobic anxiety, paranoid ideation, and psychoticism (social alienation and isolation).”

Legal practice can cause lawyers to be full of fears and lawyers frequently experience “psychological problems, substance abuse, depression, anxiety, and job dissatisfaction.” (citation omitted).

If this catalog of problems isn’t depressing enough for you, you might take a look at the one in an early article of mine.

Sometimes lawyers and law professors treat litigation as if was just a game, insensitive to the pain it causes to litigants and others swept up in it, possibly including the lawyers themselves.

Cardi argues that before proceeding in litigation, lawyers and litigants should be prepared for the toll it may take.

These concerns prompted my work on lawyering with planned early negotiation. This approach is designed to be responsible, flexible, efficient, and do-able in the real world. It is intended to enable lawyers to manage legal matters so that they get good results for clients, minimize unnecessary harm, and get compensated fairly for creating value for their clients (and, when possible, for counterparts too). Of course, people using these techniques won’t always get these results, but they should improve their process and results overall if they use them as appropriate.

Biography


John Lande is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution.  He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison.  He began mediating professionally in 1982 in California. He was a fellow at the Program on Negotiation at Harvard Law School and the Director of the Mediation Program at the University of Arkansas at Little Rock Law School. His work focuses on various aspects of dispute systems design, including publications analyzing how lawyering and mediation practices transform each other, business lawyers’ and executives’ opinions about litigation and ADR, designing court-connected mediation programs, improving the quality of mediation practice, the “vanishing trial,” and planned early negotiation.   The International Institute for Conflict Prevention and Resolution gave him its award for best professional article for Principles for Policymaking about Collaborative Law and Other ADR Processes, 22 Ohio State Journal on Dispute Resolution 619 (2007). The ABA recently published his book, Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money.  His website, where you can download his publications, is http://www.law.missouri.edu/lande.



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