The toll of the never-ending notifications


Imagine getting an email notification from your lawyer — when working, attending to your young children, caregiving to elderly family members or just finally having a moment to yourself after a very long day.

If you’re self-represented, the bold font staring at you from your phone’s email notification will state the name of opposing counsel, with a subject line that highlights your last name in a format looking like “A.B. v. C.D.”

Most would find these email notifications stressful. In fact, I had a self-represented opposing party once request that I only send him correspondence on Mondays within specified hours.

Litigation Stress

In an article titled, “Anticipating and Managing the Psychological Cost of Civil Litigation,” published in the Windsor Yearbook of Access to Justice on February 14, 2018, authors Michaela Keet and Heather Heavin reviewed existing literature on litigation stress.

“The direct financial cost of civil litigation — and how that impacts individuals and social systems — has dominated the access to justice policy agenda for the last several years… Until very recently, studies on the costs of civil litigation have therefore centred on these actual legal costs and direct financial outcomes, with less consideration for the social and psychological dimension of the process.”

Inevitably, litigation brings stress and anxiety. This psychological distress is heightened during critical stages of the lawsuit, including examinations for discovery, court applications and evaluative expert reports.

Litigants experience anxiety that may manifest itself in physical symptoms, such as headaches, sweats and muscle tension. Importantly, Keet and Heavin identify disruption to cognitive processes that may impair decision-making, affecting the eventual outcome of the lawsuit.

The authors encourage lawyers to help clients prepare for the emotional burdens of litigation with improved information and communications, alternative dispute resolution processes and collaboration with other professionals.

Resource Limitations

While stress is universal for all litigants participating in an adversarial process, those who retain counsel will have the assistance of a professional to provide guidance and education, involving mental health or other professionals when appropriate.

Unfortunately, for litigants who have limited financial resources, they may not have the funds to retain both a lawyer and a mental health professional. In fact, some can afford neither, and the psychological burden may need to be overwhelmingly carried by their personal support group.

The Keet and Heavin article gives examples of how the legal process may affect a litigant’s personal relationships. Some have needs to talk about their experience that exceed the patience of friends and family. Others may have a sense of embarrassment that shrinks their social circle.

In an interview with CBC’s The National, after being found not guilty in the death of Constable Jeffrey Northrup, Umar Zameer was quoted as saying, “I felt so relieved. This is the first time I went home, hugged my kids, without any burden on my shoulders.”

“We are trying to move on. I don’t think we can. I can’t stop thinking about them (the family of Officer Northrup) whenever we see our kids smiling, happy.”

Call for Awareness

The Keet and Heavin article calls for increased awareness of the psychological impact of litigation.

“The protective value of law must not be outweighed by the psychological or emotional expense of enforcing such rights.”

There is wisdom to continue conversations about designing dispute resolution processes with better focus on the importance of litigants’ mental health.