IT HAS THAT involvement intheprocess oflitigation may aCtuallybestressfuI to the claimant; Thig phenomenon has been termed ‘litigation
First, we need to define what we mean by the term litigation stress. While there do not appear to exist any standard definitions, it has been briefly described by Weissman (1990), who said: “Involvement in litigation renders plaintiffs susceptible to stressors and to influences that may lead to increased impairment, biased reportage, and retarded recovery.”
Most of the studies that have examined the concept have been anecdotal rather than based on rigorous scientific research One exception. to this is provided in a study by Binder et al (1999), in which the authors followed up 18 subjects who had been involved in civil litigation following industrial or road traffic accidents. All the litigants had developed psychological symptoms and had been referred for psychiatric evaluation, Eight subjects stated that their symptoms had decreased in severity upon completion of their cases. The psychological impact of the litigation process on the individual was highlighted by the authors in their comment that where claimants improved after their cases were finalised, this “seemed to be related to issues besides the money, not being reminded of the accident” , the decreased stress of not having to deal with courts and attorneys and the “feelings of vindication or satisfaction” „
What do claimants find stressful? Koch et al (1999) undertook a survey of the views of 50 personal injury lawyers and 50 psychologists. In doing so, they identified four main aspects: (D stress resulting from the litigation process alone (eg, court procedures, depositions); “stress secondary to financial difficulties (eg, loss of income, legal fees)” ; O stress from a combination of the initial trauma (eg, road traffic accident) and litigation process; and CD “stress clue to uncertainty in the plaintiff’s life (eg, the end of litigation, return to work).
The most commonly provided source of litigation stress was that due to the litigation process alone.
One particular source of litigation stress identified (Fulcher, 2004), is by the experience of being repeatedly interviewed as part of the litigation process Such interviews not only rekindle memories of the trauma, but also the emotions associated with them, which are frequently negative and distressing. In a survey litigants, Fulcher identified three separate groups of people who became thus distressed: Of those who became progressively more agitated and began to exhibit increasing rates of post-traumatic symptoms following repeated interviews; Of those who had not previously exhibited post trauma-like symptomatology, but began to do so once they commenced serial interviews; and Of a group of claimants who became irritated and resentful by the experience of repeated interviews, but who did not develop a trauma-like response to the process.
Fulcher argues that by recounting their story, litigants can experience negative emotions that they sometimes attempt to deal with by disconnecting themselves emotionally from the material being discussed. Thus the claimant develops a ‘patter’, which may lead to the interviewer falsely concluding that the claimant is not distressed or emotionally affected by their experiences. Secondly, by drawing on the principles of behavioural psychology, he argues that the process of repeatedly exposing people, but only very briefly, to their traumatic memories during interviews creates the perfect conditions for the individual to be unable to resolve the trauma and overcome the affect disorders associated with it. He argues that, under these conditions, treatment can be substantially slowed and that therefore a greater number of therapy sessions over longer periods of time will be required. A similar finding was also observed by Koch (1999),
During the authors’ own medico-legal practice of victims of road traffic accidents, we have witnessed the existence of litigation stress (Koch and Kevan, 2005). Claimants frequently cite the loss of income and uncertainty in their lives as sources of stress and also mention their desire for an end to the litigation process that typically takes several years and prevents them from moving on psychologically from the trauma they have experienced and thereby develop a sense of ‘completion’. Claimants also mention the stress incurred by having to refocus on the trauma each time t they are interviewed and that this process typically begins from the moment that they receive the initial appointment letter until the completion of the interview. This is clearly evident: by the distress that some people display at interview.
Implications of the above findings are as follows: Firstly, we need. to acknowledge that it is inevitable that litigants will experience some element of stress during the process of litigation that cannot be ameliorated, eg, the uncertainty that now exists in their life, financial loss, etc. However, some of the factors that cause stress can be attended to. Fulcher (2004), for example, in addressing the stress incurred by subjecting the claimant to repeated interviews, advocates the development of a structured interview that would gain the relevant background information needed by all professionals involved which could be videotaped. This tape could then be sent to other involved health and legal professionals for them to review prior to their appointment with the client. They would then be able to subsequently limit their own interview to the specific information relevant to their specialism which thereby omits the need for the client to recount their trauma stories again.
Secondly, it is important that health professionals and lawyers recognise that some claimants may dissociate themselves during the recounting of their story and misleadingly appear unaffected by their experiences. Ignoring this could lead those professionals involved to underestimate the actual distress that the claimant has experienced and provides fertile ground for the hoary chestnut of “compensation neurosis” to germinate and grow in the minds of those professionals (Fulcher, 2003b). Drawing such spurious conclusions would also be likely to significantly reduce the prospective compensation claim of the litigant (Pitman, Sparr, Saunders and McFarlane, 1996).
Finally, it would be helpful if the length of the litigation process could be reduced. This would reduce the time period during which litigants are susceptible to the effects of litigation stress and enable them to resolve their trauma earlier and move on, both in practical and psychological terms, with their life.
Litigation stress is an under-recognised phenomenon that is capable of exerting considerable impact both on the outcome of the litigation case and on the psychological recovery of the individual litigant. It is a subject that demands increasing attention and one that should be subject to further, more scientific, research.Until then, it is likely that it will continue to subtly interfere in the manner outlined above.