Friends: 

You know how they say that there are five stages of grief?  I don’t remember what they are, but I think some of them are denial, anger, bargaining… grump and dopey… or is it sleepy?  Anyways, in practicing law for almost 11 years now and seeing litigation from commencement to adjudication and every step in between, I have come up with my six stages of the litigation psyche from the position of the defendant.  The psyche of the plaintiff is completely different and maybe we can discuss that another time.

If you’ve been involved in litigation, you will know exactly what I am talking about.  If you haven’t, consider yourself lucky.  Because not only is the litigation process a lengthy one, it is psychologically demanding and debilitating.

First, as always, a caveat.  I am not in any way a psychologist, psychiatrist, sociologist, or any other kind of “-ist” except for a jurist.  I am a layman when it comes to matters of the brain.  I know where it is and that is about all I know.  That and that we all have an id, an ego and a superego.  And some of us have alter-egos too.

As we attorneys say, “notwithstanding the foregoing,” here are my five stages. 

1)  Embarrassment.  Look, even if we had peered into a crystal ball and seen that this lawsuit would be filed against us, we are still embarrassed.  We stick it under our pillow and hope that no one will ever find out about it.  We don’t want to tell anyone because there is a stigma attached to being a defendant in a lawsuit.  The outside world will think, without any other information, that we had done something wrong.  Think of it this way—the standard response to trying to get out of jury duty is to claim that the criminal defendant had to have done something wrong to be sitting in that chair.  It is embarrassing to have to admit that someone out there thinks you harmed them.

2)  Anger.  How dare someone sully my name and call me a defendant.  How dare they think that I did something wrong.  I was brought up right; I’m a good person; I pay my taxes.  I wouldn’t hurt a fly and here this person is claiming I should pay them money???  If anything, they owe me money!  And if I did do something wrong, I was completed justified in doing so.  As soon as this lawsuit is over and I win I am going to sue him and make him pay me for all of the time and money I spent in proving that I did nothing wrong.  HOW DARE HE!  I will spend every last penny I have to make sure he never gets any money from me.  I would rather pay my attorneys and live on the street in a cardboard box than pay him money.  HOW DARE HE!!

3)  Conviction.  The facts of this case are so simple.  Any ignoramus can see that I did nothing wrong.  This won’t even have to go to a trial.  It doesn’t need a jury or a judge to decide who wins and who loses.  It should be as easy as writing a letter to the other side and telling them all of the reasons they are wrong and this case will go away.  The other guy is lying; I am totally believable and everyone will see through his fairy-tale.  He is just trying to extort money out of me.  This will be a slam-dunk and won’t even go to trial.  I’ve got nothing to worry about.

4)  Impatience.  When will this be over?  How much longer is it going to take?  This lawsuit has been going on for 8 months and it seems like nothing is happening.  It is interminable.  It may be a month of rapid activity and then three months of nothing.  But, oh yeah, the attorneys’ bills just keep coming.  Written discovery, depositions, motions… the attorney says we need to do these things, but it’s a waste of money.  Who cares what the other guy says?  My word is my bond and everyone will believe me.  Just get me on the witness stand, let me tell my story, and all will be over, we can be done with this.  I don’t want to have to wait 6 more months for my day in court.  Can’t we just get to it now? 

5)  Resignation.  I’ve had it.  I don’t really even care anymore.  This case has been going on for 11 months, we still have three months until trial and my lawyer tells me that it’s going to be another twenty thousand dollars just to get to trial.  I’ve already spent forty thousand dollars and it seems like no progress has been made.  The mediator told me five months ago that there was a possibility I could lose, but I didn’t believe him.  Now I am beginning to wonder whether I really even care.  I could pay my attorney all that money to go through the trial and then I could lose and have to pay the other guy also.  I have been living and breathing this case for almost a year now.  My work has suffered.  I’ve been depressed and I miss being who I was.  At this point I would rather it all go away whatever the outcome.  Yeah, I may have to pay the other guy some money, but what’s the price for regaining my sanity?

If Stage 5 prevails over your psyche and you push for settlement and resolution is reached, you may have conflicting feelings – relief, despair, liberation, reawakening, or regret.  If you succeed in repressing your feelings of resignation and proceed to trial, Stage 6, the final stage, awaits you…

6)  The Comedown.  Whether you win or lose, you are in for a tremendous fall.  If you lose, there is the realization that you spent all of this time and money in a losing effort.  And now the bad guy, the REAL bad guy, has bragging rights and will pursue pursue pursue.  He is going to attach you property and garnish your wages and empty your bank accounts.  You go into preservation mode.  How can you prevent this guy from actually collecting anything?  A whole year of fighting, of living and breathing this lawsuit, all for naught.  And I could have settled this lawsuit six months ago for maybe quarters on the dollar.  Ahh, what was I thinking…?

Or–

If you prevail, a different kind of let down, burdened by further anger.  Why did I have to spend so much of my money and time just to be told that I was right all along, just like I had been telling everybody?  I spent so much money and what did I get in return?  A piece of paper that said I was right… Why wouldn’t anyone listen to me when I was saying it?  I have always been right and I had to spend so much money.  I want the him to pay me for all of the pain and aggravation, but do I really want to go through this again?  Another lawsuit, another emotional rollercoaster, another year or more of my life?  I won’t get that time back.  I could have settled this thing six months ago; sure I would have paid some money, but it would be over and done with.  The attorneys’ fees would have ended.  At the end of the day, it’s only money, right?  I could have been living the last six months in renewed peace; instead, here I am, an empty wallet and a hollow victory for which no one is going to pay me anything without fighting more.

So, in the end, I ask this question—was it all worth it? 

Of course, there are benefits to the process and sometimes there is no way to obtain appropriate adjudication without the proceeding through the entire litigation process.  But just be prepared.  It is a marathon, not a sprint.  Only about one in a hundred go away without these stages. 

So what can you, as the defendant, do to combat these stages? Rely on your attorney and trust him/her.  Your attorney has been here many times before and he/she will hold your hand and guide you through it.  Make sure you have someone in your corner who you trust and in whom you have the utmost confidence.  They will help you navigate through the stages…

Have a litigation-free week if possible.  I won’t, but hey, this my job and I love it.

Rob

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