STRESS, LITIGATORS AND LITIGATION: A RECAP
For World Mental Health Day I am re-posting posts on this blog that deal with stress, for litigators and those involved in the litigation process. Part of my work, dealing with relief from sanctions and limitation, means I come across this issue a lot. Mistakes in litigation are often the result of stress, overwork or problems caused by factors external to work which affect the ability to work. Further the stress of litigation, or workload associated with litigation, is often overlooked. So here is a summary of previous posts and links to useful sources of help.
POSTS ABOUT STRESS AND WORKLOAD
Given that a large number of the posts on this blog are about sanctions and looking where things go wrong in litigation it is not surprising that there have been posts on lawyers and stress. There have also been posts on the best means of reducing stress for litigants.
In April 2014, as part of the “Surviving Mitchell” series. I dealt with “fish files”
“A “fish file” is a file that has been left for so long it has started to smell. Consequently the litigator avoids it and it gets smellier and smellier. These files are always ripe. Ripe, that is, for problems to occur and, generally, for matters to get worse. The file gets avoided more and more. Here we look at practical solutions to deal with a problem that virtually every litigator has. A failure to realise this, to face up to it, and to have strategies in place to deal with these issues underlies a surprising number of cases with “Mitchell”/”sanction” type problems.”
“FISH FILES ARE AN INTERNATIONAL PROBLEM
Fish files feature several times in John Grisham’s work. He even wrote a short story about a lawyer’s issues with fish files.
THE CONSEQUENCE OF NOT DEALING WITH FISH FILES
This is actually a very serious problem. Procrastination can lead to depression which, in turn can lead to other problems.
The crucial thing is to realise that this is a universal problem. Every lawyer has one of these files (I often ask at lectures and, over the years, only one person has said they did not [his colleagues later cast much doubt on this]). Further there is plenty of material out there (a lot of it American) which can usefully be adapted. ”
The post provides a series of useful links on dealing with procrastination (which I will update when I can get around to it); litigation specific links with guidance for lawyers; how it can affect your health; practical advice and even has a section on humour.
This was a post written in October 2016. It looked at those cases were young lawyers, sometimes trainees, had gone badly off the rails.
My favourite section is “Ten Key Points: Avoidance of Problems and Dealing with a Problem that has occurred”.
(When I wrote that piece about half a dozen lawyers rang me to say they thought I was writing, specifically, about them).
This was a post written in February 2017. It dealt with the question of having a strategy in place for when things go wrong.
“THE REASON THIS IS IMPORTANT
This myth (and again myth it is) of legal infallibility can have profound consequences. The most significant of which is that it can make lawyers reluctant to admit their mistakes at once, or, as in the case above, attempt to hide them. The difficulty is that:
- Many mistakes can be rectified if dealt with early.
- The “cover up” of the mistake is almost always far more harmful than the mistake itself.
- The costs, expense and delay to the client are made much worse.
SO TELL YOUNG LAWYERS (AND REMIND OLDER LAWYERS) THAT MISTAKES WILL BE MADE
- Making mistakes does not make you a bad lawyer.
- Failing to admit mistakes makes you a bad lawyer (you are never going to learn).
- Covering up your mistakes makes you a dishonest lawyer (and probably an ex-lawyer).
Mistakes in litigation, if identified early enough and dealt with promptly enough, can often be rectified, or at very least the consequences minimised.
Far better to face up to a mistake than lose your means of earning a living.
PILOTS LEARN ABOUT CRASH LANDING: LAWYERS DON’T
As a passenger I am comforted by the fact that pilots have regular training on what to if anything goes wrong during the flight. I don’t expect things to go wrong, I certainly don’t want anything to go wrong. However there are good reasons for pilots to be trained in this way. Not least they are learning from mistakes made in the past.
However there is very little by way of equivalent for lawyers. It could be said that the issues are “obvious” and do not need telling. However this does not take into account the sheer feeling of panic that can overtake a practitioner when a mistake has been made. There, are, of course, sometimes issues of ego as well. However the purpose of training and instruction is to ensure that people know what to do.”
This post was written in March 2018. This provided new links and guidance with specific links to organisations that can help.
This was part of a three-part series written in 2016. I asked the question – what is an appropriate workload?
“SO IS THERE AN EASY ANSWER?
If there was then someone would have found it, bottled it, sold it and retired long ago. The real problem is that many people do not even seem to be asking the question? I often raise the issue of workload when lecturing on “how to get sued”. It gives rise to laughter, agreement and the comment that those responsible for running the firm should be told (strangely they are never present”
Again the post has links to articles and posts on this topic.
The first in the series had quite a reaction.
“I had no idea that the earlier post on a litigator’s case load would receive such a large response and have many hundreds of people reading it within hours (it was posted on a Sunday remember). Most of the response came on twitter. One response was (somewhat wryly) that there was a mis-assumption that lawyers only worked 40 hours. This leads to the question – is working extra hours actually productive?”
This post addresses the question directly – does extra hours lead to extra productivity it looks at a post from Jennifer Alvey who notes that working additional hours has the same impact as alcohol on the ability to function.
“So we have an entire profession that is showing up drunk to work and not performing anywhere near their potential as a result. If the intoxicating substance were alcohol or drugs instead of billable hours, lawyers would be advising clients to either fire the intoxicated employee or send them to rehab. Instead, lawyers crack the whip on themselves and bill more, more, more. It’s nuts.”
This post looked at a case where the Court of Appeal overturned an order granting relief from sanctions in a case where an insurer had been extremely dilatory.
“The court cannot ignore that insurers are professional litigants, who can properly be held responsible for any blatant disregard of their own commercial interests”
“insurers are in a particularly good position to conduct litigation efficiently and proportionately and to comply with rules and orders. It cannot avail an insurer in this position to say it was not a party to the claim at that stage. It was directly affected by it and knew that it had to protect its interests from the moment liability was admitted.”
To be fair to insurers there is guidance –
” produced by airmic in Achieving Best Practice in Claims. This includes
- Adequately experienced and qualified senior staff to supervise operations
- Workload analysis and management of third-party service providers
It may be more of an aspiration that a definitive guide. It does however emphasise that these are matters that require serious consideration. There is a considerable amount of litigation that could be avoided if resources were put in place at the appropriate level to mitigate damages and deal with cases promptly.”
This looked at an article by Hugh Koch which analysed the source of stress for litigants. It looked at ways of reducing the stress of litigation for the client.
“Clearly litigation is a stressful process. However surely much more research and consideration is needed into how lawyers can reduce the stress of litigation for the clients. I have concentrated upon one simple matter, obtaining evidence early. There is undoubtedly much more than can be done.”
Looking for general guidance, the post by Alex Craigie On Getting Through the Drama of a Lawsuit. The key seven points:-
- Find a lawyer you trust.
- Trust the lawyer you find.
- Participate in your case.
- Manage your anger, fear or frustration.
- Try not to direct your anger or frustration at your loved one.
- Try not to direct your anger at lawyer.
- Brace yourself for the long haul, but know it will come to an end
The advice in Law Info Blog in How to Cope with Being Sued is of general application:-
“Get informed. The first step in coping with a lawsuit is to get informed about the process. Talk to a lawyer about what to expect, what kinds of time limits are in place, whether you have a good basis upon which to dispute liability or claimed damages, and whether settling out of court or defending the case at trial would be more beneficial to your situation. Obtaining this kind of information base about what can be anticipated will has been shown to greatly improve coping abilities. Defendants can then prepare themselves and begin to react strategically, rather than emotionally, to the various phases of the legal matter.”
“At the end of the day, unyielding perseverance and determination will allow you to overcome whatever you’re up against. The first lawsuit will make you feel like the world is set against you; however, once you’re done with this battle you’ll realize it’s just a normal part of business. Welcome to the big leagues, you’ve been noticed.“
- Fehzan Ali Seven Must-Read Tips for Your First Lawsuit.
- Alex Craigie On Getting Through the The Drama of a Lawsuit
LEARN FROM THE PROCESS
There are several interesting accounts in Success: How to Survive a Lawsuit. Several businesses state that, despite the stress, litigation was a boon for their company.
“I don’t think we would be as successful as we are if this had not happened. The focus we gained enabled us to grow between 60 and 70 percent per year, and today we have 20 employees and $8 million in annual revenue.”
LAWSUITS AS A “LEARNING EXPERIENCE”
Similar points emerge in the article by Neil Patel – What I learned from Fighting a 12-Month Lawsuit.The need to continue to develop your business, and cope with the litigation at the same time is a common theme.
“Don’t look at lawsuits or any obstacles that come your way as a negative thing. Instead, see them as a learning experience. They are just roadblocks that you will eventually run into as your company gets larger”
WHEN DOCTORS GET SUED
“Someone who has not been the subject of a lawsuit may find it difficult to appreciate the emotional effects of such a suit on a caring, concerned physician and that physician’s family. We’ve spent our lives doing the best we can to treat our patients properly; now someone is telling us that we don’t really care whether our patients get well or not. Most physicians who have been sued will list the suit as the single most stressful experience of their lives”
BORNE IN THE USA…
Guidance for doctors getting sued is widespread. Particularly in the United States. This is not surprising, see the statistics in Kevin MD’s 4 keys to manage medical malpractice stress syndrome.
“A group at Harvard has estimated that by age 65, more than 75% of physicians in low-risk specialties such as family medicine and 99% of physicians in high-risk specialties such as surgery will have been sued. Over 95% of physicians do experience emotional distress during some or all of the process of litigation. Malpractice suits can take between one to four years to be resolved. If the stress and emotional upheaval associated with a lawsuit is not effectively managed, it can wreck havoc with your health, your relationships, and your practice.”
READ THE BLOG AND THEN READ THE BOOK
- There is a full length book on the subject: Physicians Survival Guide to Litigation Stress. Understanding, Managing and Transcending a Malpractice Crisis
GUIDANCE FOR MEDICAL PRACTITIONERS
- The consequences for doctors is considered in the Personal and Professional Impact of Medical Malpractice Claims.
- The issue is also considered carefully in The Liability Stress Syndrome.
- Modern Medicine – You’ve been sued. There’s help.
- American Medical News – Litigation Stress: Being sued is personal as well as professional.
- Sanbar and Firestone on Medical Malpractice Stress Syndrome.
THE MENTAL HEALTH CONSEQUENCES OF CIVIL LITIGATION
There is a well known problem known as “litigation stress”
- This is considered in a systematic way in The Litigation Patient: Mental Health Consequences of Civil Litigation. by Larry H Strasburger, MD.
- Mental Healthy – Lawsuit Stress: The Dark Side of Litigation
ON STRESS AND LITIGATION
- Stress and the litigation process: how can lawyers make matters better?
- Stress, litigation and litigators: useful links to avoid and deal with problems.