On the Emotional Costs of Litigation
By Denise Rahne
“Mr. Kenge,” said Allan, appearing enlightened all in a moment. “Excuse me, our time presses. Do I understand that the whole estate is found to have been absorbed in costs?”
“Hem! I believe so,” returned Mr. Kenge.
“My dearest life,” whispered Allan, taking me hurriedly from them, “this will break Richard’s heart!”
Anyone familiar with Charles Dicken’s Bleak House will recall the gloomy dénouement regarding the eternally litigated Jarndyce and Jarndyce case and the sudden reckoning that the cost of the fight had, like the snake eating its own tail, negated the reason for the fight.
While lawyers will often counsel clients facing or navigating litigation about the emotional toll that the litigation inflicts on the parties, in practical reality, those same emotions can bring high economic costs. Particularly with disputes among former business partners or family members, such costs are not only difficult to quantify, but they also present challenging topics for clients and potential clients in the early throes of a dispute. The early stages are, however, the best time to frame the role that emotion may play for a client or potential client. Toward that end, a discussion agenda should include the following:
1. Justifiable Emotions Do Not Necessarily Correspond With Illegality.
Even in highly sympathetic situations, the adage “there ought to be a law” remains an unanswered call for many people who harbor grievances with a former partner, business associate, or family member. This discussion is perhaps the first and most important between a potential client and lawyer before embarking on a process that looks cathartic at the start but that assuredly will not remain in that vein beyond the early stages of the fight. The earlier that an honest assessment of what part of a potential client’s plight are ethical, moral, human, or consumer, as opposed to grounded in statutory or common law, the better the emotional and real prospects for the potential client. This early, honest conversation can be the most valuable service a lawyer provides.
2. Define a Win.
If the conversation survives an honest discussion regarding the nature of a potential client’s grievance, an equally important topic is discussing the nature of potential outcomes. Even the most sophisticated of potential clients can feel so strongly about their experience that they will yearn for validation from a fact-finder who will adjudge them the winner. What lawyers know but sometimes do not discuss early enough is the challenging duality that, though few cases go to trial, if parties are not settlement minded, it can be exceedingly difficult to step off the trial treadmill. An early discussion of satisfactory outcomes, alternatives, and flexible paths that leave open such alternatives is key early in the attorney-client relationship.
3. Emotions Abhor a Budget.
We cannot predict the future, but we know with near certainty that parties will be even more motivated to seek a psychological upper hand in emotionally charged cases. In cases involving family and former business associates, that means parties know one another and have, consciously or unconsciously, amassed a bank of knowledge for pushing one another’s buttons. If one is not strategic, this can become a very expensive game of psychological warfare. Picking one’s battles (because they are not free) is a plan best made very early, so you can revisit it when a client’s instinct to “win every battle at all cost” is neither economical nor strategic.
4. The Right Services From the Right Professional.
One of the most delicate but invaluable conversations with clients is informing them of limits to your professional services and the need for other support and professionals. This is all the truer with emotionally charged matters where the line between the client’s need for advice and their emotional state can become blurred inadvertently. In disputes involving business interests and family, financial and tax planning will likely be required, and if not attended to early can restrict options for resolution or present unforeseen consequences for the client. A client’s physical and mental health is equally or more important than other aspects of the dispute, and the stress of litigation can adversely impact both. Specific to the client’s mental well-being, it is understandably easy for the legal counseling role played appropriately by a lawyer to bleed into acting as a support person, a role for which the lawyer isn’t properly trained. This situation disadvantages both client and attorney when the client requires and deserves a different level and type of support than the lawyer is qualified to provide. An early conversation about having the appropriate professionals in place, including counselors, benefits both client and lawyer.
5. The Price of Peace.
Resolution can be surprisingly difficult in cases involving high emotion. Balanced against the potential to shed a large burden are perceptions of justice, fairness, and right and wrong. Faced with a dispute with personal dimensions involving family or a business, the practical benefits of controlling your own destiny by settling out of court can be difficult to appreciate when the dispute is in full wind-up mode. But most cases do and should resolve through some form of settlement, and talking about it as early as possible, if not at the point of retention, can benefit both the lawyer and the client, and save costs.
Disputes with emotional aspects are destined to have a longer arc than even standard litigation. For that reason, early and frank conversation about their real and potentially costly dynamics can help lawyers and their clients make informed decisions about engaging in litigation in the first place—and how to navigate it if they decide to do so.
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