Litigation Stress: How It Can Affect Characters in Your Story

 Maximillian Schell, defense attorney in "Judgment at Nuremberg"

Maximillian Schell, defense attorney in "Judgment at Nuremberg"

Writing a story revolving around a lawsuit, or you have a scene or two set in a courtroom? People in litigation, especially those under the stress of being the defendant or even the plaintiff, are often portrayed as "stressed" in such scenes, but their reactions and symptoms are more complex than that.

In fact, there's a term, litigation stress syndrome, for the symptoms people might suffer from intense, especially prolonged litigation. But before that term was another, malpractice stress syndrome, that we'll look at first.

Medical Profession: Malpractice Stress Syndrome

Malpractice stress syndrome refers to the symptoms physicians, nurses and other health professionals have suffered after being sued for malpractice.

According to Karen Kohatsu, MD, she had been confident that she would prevail in a malpractice suit brought against her, but during the litigation process she experienced isolation, inability to sleep and other stress-related symptoms until the lawsuit was eventually dismissed. "Self-doubting occurs when you read the summons and depositions from the other side," Kohatsu said. "The other side makes it sound like you are a terrible person for missing a diagnosis. You feel really alone and have to turn everything inward because you don't have anyone to talk about it."

Litigation Stress = Stages of Grief, PTSD

handcuffed hands.jpg

Many of us have seen movies, TV shows or read books that depict people going through the upheaval of a lawsuit -- some psychologists compare those reactions and symptoms to the 5 stages of grief, others compare them to PTSD, or post-traumatic stress syndrome. "The feelings rank in intensity with the death of a loved one, going through a divorce or the onset of a life-threatening illness," said one physician.

Five Stages of Grief

These stages of grieving, as outlined by psychiatrist Elisabeth Kübler-Ross, are:

  1. Denial

  2. Anger

  3. Bargaining

  4. Grief

  5. Uncertainty

Outcome of Lawsuit

If the outcome of the lawsuit is favorable: renewal, rebuilding, and personal growth.

If the outcome of the lawsuit is unfavorable, denial, bargaining, depression, and other complications can result.

Legal Abuse Syndrome

Karen Huffer, a therapist, has coined another term, Legal Abuse Syndrome, that occurs when people suffer through long, protracted litigation where their Constitutional rights were violated. For example, in a recent case in our state a judge failed to read instructions to the jury. When defense noted that the judge had forgotten to read the instructions, the judge countered that the defense was wrong. Later, in a review of the court transcripts, it was seen that the judge had never read the instructions. Can you imagine how the defendant felt, watching his Constitutional rights being trampled on by a judge?

Huffer describes the symptoms of legal abuse syndrome as including:

  • Feeling deeply disillusioned or oppressed by the legal system
  • Frustrated with efforts to effect justice
  • Experiencing nightmares, exhaustion, vulnerability

Family's Responses

  Not Guilty" by Abraham Solomon, 1859, Getty's Open Content Program

Not Guilty" by Abraham Solomon, 1859, Getty's Open Content Program

It's not only the litigant who suffers from litigation stress, but also that person's family. Spouses and children can experience a deep sense of loss, devastation, and social awkwardness. Part of this is due to the restriction that no one can "speak about the lawsuit" to anyone else.

How Long Do the Symptoms Last?

In "The Psychological Impact of Litigation," a 2006 article in the DePaul Law Review, authors Edward J. Hickling, Edward B. Blanchard and Matthew T. Hickling, wrote the following statistics on lingering symptoms of litigation stress, which they too equate to PTSD:

In our research, we found that about forty-eight percent will show an improvement in symptoms by six months so they no longer meet diagnosis for PTSD, and by one year about sixty-five percent will show improvement. After that, our data shows that without intervention, there are very few people who will improve any further. Other studies have shown that for as long as six years, even with treatment, over forty percent of the victims will remain symptomatic.

Symptom-Free Litigants

Then there are those litigants who are symptom free. Sandra Tunajek, in her 2007 article "Dealing with Litigation Stress Syndrome," states that while such non-symptoms "may be a form of denial, further research is determine the factors (i.e., available peer support, shared disclosure by peers, previous claims, successful defense, etc.) that may offer protection against litigation stress syndrome."

Whether you're writing about a defendant accused of a crime, a plaintiff seeking financial compensation, or how a litigant's family is coping (or not), hopefully this article provides some background, stats and ideas!

Happy writing, Colleen

Put together with the user in mind, this intelligently organized handbook for practicing writers will make you sound like a practicing lawyer.
— Warwick Downing, former DA and author "The Widow of Dartmoor"

Colleen Collins's current nonfiction book, co-authored with Shaun Kaufman, is A Lawyer's Primer for Writers: From Crimes to Courtrooms.