Litigation as Moral Choice

John D. Willis

Leadership Ethics Online, LLC

info@leadershipethicsonline.com

www.leadershipethicsonline.com

Preliminary Note

This discussion pertains to the human factor in litigation, complainants and attorneys, sometimes operative in law suits. Readers should consult the American Bar Associationπs ≥Legal Ethics and Professional Responsibility≤ pages [e.g., http://www.abanet.org/cpr/links.html], they will see that the national and state ABA associations provide great detail and depth in attorney-client relationships which preclude some of the issues discussed here. As if the case in any professionãmedical, religious, human services, governmentalãthe mere fact of ethics instructions or regulations does not prevent abuses effectively contrary or subversive of those rules.

We note that no ethical client or attorney would engage in any of the following behaviors or practices, some which are patently illegal and cause for disbarment, if not criminal prosecution, fines, and imprisonment. Let us imagine that the following discussions might have currency, at least as ≥cases of conscience≤ for ethical reflection. We will write as if these occur in fact, without adducing potential evidence from actual cases of frivolous suits, disbarments, or prosecutions.

Litigation as Reasonable and Necessary

There are times when litigation is necessary by reasonable standard of judgment. An individual or group of people are maimed or killed by a dangerous machine someone knew needed repair or had a faulty design. Thousands of families are deprived of loved ones who died from a carcinogenic compound a corporation knew endangered its workers. Litigation often arises out of real harm where the parties believe (1) the perpetrators need to be punished; (2) the public needs protection from similar cases; and, (3) financial restitution will offset some financial harm suffered.

We must look at the history of the courts to see how litigation and criminal proceedings often have been of great benefit to society and government. There is no doubt that some persons in all walks of life with opportunity, power, and resources, have and will exploit their organizations, competitors, and society at large, in order to obtain immoral or illegal ends. The history of the United States is filled with important court cases where wrongs were righted through litigation, prosecutions, and every use of the legal system. This applies not only to such matters as civil rights, but also class-action suits aimed at public protection, to name two historic uses of the law.

Litigation is a tool, therefore, which must be used under certain circumstances in order to rein in, check, and punish persons and organizations creating harm and endangerment to individuals and groups.

Litigation Based in Emotions

There are many suits brought into court not out of necessity, but from the operation of emotions in the complainants. I would strongly encourage readers to consult the Internet in order to review the subject of emotions, such as can be found in the following link, http://en.wikipedia.org/wiki/Emotion. Some of the emotions listed there which sometimes are operative in litigations are anger, fear, sadness, joy, and disgust. Of course, ancient philosophers in all civilizations have reflected on the nature, manifestations, and power of every kind of emotion. Readers interested in learning from these sages really should pursue their curiosity for which they will find rich rewards.

Anger generated by real or perceived harm may be the most common emotion driving many lawsuits. When there are real, objective facts where harm has occurred or continues to occur with adverse effects. For example, think of a wrongful termination due to discrimination, or of a cancer contracted through unsafe working condition. Whether the harm continues as an objective event or not, our minds generate memories about harms suffered. When these memories are relived, scientists who study brain functions tell us that they re-create and re-generate biological reactions within our brain chemistry, our blood pressure, and any physical functions affected by these changes.

There are some persons who, for any number of reasons, have emotional, psychological, and spiritual capacities to manage real harms suffered through forgiveness, supportive family, or other resources. On the other hand, many persons initiate litigation because they are unable or unwilling to manage such emotions as anger, fear, sadness, and disgust. They use litigation as a tool to manage their harm and memories, and hope to obtain the emotion of joy through a successful outcome.

Emotions also can be deceptive. We commonly generate emotions from our perceptions, which may have nothing to do with facts, or the truth. Letπs look at a few examples. If we are insecure or have low self-esteem, we may be over-sensitive to statements by others we associate with ≥criticism.≤ We may be capable of ≥reading in≤ meanings based in fear of criticism, or perceive negative or destructive messages are directed against us. Since none of us are perfect people or employees, there will be real, genuine criticisms based on our behaviors or, note this, how others incorrectly perceive us. In these cases of real criticism, the insecure person may react strongly against what is perceived as ≥harm.≤

Nevertheless, anger is a strong motive for litigation, whether real or perceived harm exists. Some may believe they have been harmed and require a ≥legal hammer≤ to defend them, or punish those who have created the problem. There is another problem, however, when persons experiencing severe emotions seek, or are sought out, by some attorneys.

Litigation as Emotion-Driven

Attorney specialists in litigation are educated, trained, and experienced, not only in law but in the manipulation of emotions. For example, if an attorney seeks to discover the truth that a respondent actually intended harm, he or she knows in advance that few, very few witnesses willingly confess to their role in creating harm. The art of cross-examination involves not only logic, but manipulating the process so witness emotions may lead to unintentional disclosures. In addition, attorneys understand that juries and judges also have emotions capable of being swayed by artful combinations of fact, law, and evidence appearing in court of an emotional nature. In fact, facts and case lawãwhich sound neutral and logical enoughãalmost always are used in ways to generate both legal argument and emotional responses.

Therefore, when litigation attorneys are approached by prospective clients, they are not only experts in emotion. Many of those clients are angry and filled with a wide range of emotions appearing throughout the presentation of the ≥facts≤ and causes for entering the office. There are many attorneys who remain calm, neutral, and professional, managing such prospective clients with gentleness and patiently guiding their narratives to discern what is needful to make an informed, professional recommendation. There are other attorneys, however, who are prepared to capture any new case that promises new fees. Such attorneys may use their knowledge of emotional manipulation to assure the prospective client that he or she should contract with the firm and prepare for victory and the emotional and monetary satisfaction they seek.

This is not an empty speculation from a non-attorney. Susan Swaim Daicoff has written a book which pertains to attorney personalities. In Lawyer, Know Thyself: a Psychological Analysis of Personality Strengths and Weaknesses (American Psychological Association: Washington, DC, 2004), Daicoff is an attorney, she discusses how ≥attorneys differ from regular people.≤ Since she is an attorney writing from within the profession concerning peers, we should appreciate and weigh carefully what she has to say on the following distinctive traits.

• Competitiveness ≠ ≥Consistent with the stereotype, lawyers are competitive and aggressive. We like to win. One senior litigator even recharacterized his losses or wins, saying, åThis is a great job. I win whether my client wins or losesãI get paid either way.π≤ (p. 26)
• Achievement Orientation ≠ ≥We are psychologically motivated to achieve. Psychological research has identified three basic drives that explain most peopleπs motivations: power, affiliation with others, and achievement. The need for achievement is described as the need to compete against an internal or external standard of excellence; the need for affiliation is the desire for friendship, love, or belonging; and the need for power is the need to lead or have an impact on others.≤ (p. 27)
• Materialism ≠ ≥Lawyer jokes repeatedly portray lawyers as money-grubbing and money-oriented. An extensive 1997 study indicates that lawyers are indeed focused on the economic bottom line than are most people. In this study, lawyers evaluated litigation options and settlement offers differently than did nonlawyers; lawyers were more focused on the economic bottom line and were less swayed by noneconomic, psychological factors.≤ (p. 28, italics added)

In considering the role of emotions in generating litigation, Daicoffπs statements about attorney personality traits are extremely important. Unscrupulous or unethical manipulations of prospective or current client emotions are subjects for ethics debates. On the other hand, Daicoffπs description of the attorney personality points to the caution both attorneys and potential clients must exercise in considering litigation.

Attorneys are trained to win, not lose, of course. They must be competitive. They, like all of us, want to succeed in their profession where winning is the proof of expertise and warrant for respect. Their ability to be accepted and affirmed is accelerated by notable cases with notable high-dollar awards. To the degree they truly are materialistic, when a prospective client walks in the door with all the marks of a highly successful and profitable case, such attorneys may be tempted to serve their own, private interests than recommend solutions in the interests of the person.

Add to these things personal situations and issues. If attorneys have expensive habits, have heavy debt, are facing medical or other high-cost crises, or simply enjoy making money and winning, such factors affect attorney responsesãjust as with physicians or, for that matter, clergy. Nevertheless, Daicoffπs study indicated that attorneys have other personality characteristics which impinge on personal factors.

Even if attorneys with these traits contain them, or keep personal factors out of consideration to recommend to an emotion-driven prospective client that litigation is not warranted, they can anticipate other consequences. When the person leaves the office with an unsatisfied response and seeks another legal assessment, peers or competitors will hear he or she rejected the case, will take it, then note to others how he or she missed such an obvious opportunity.

Persons angry or in other emotional distress seeking legal counsel are completely unaware of such dynamics at work when they seek advice. When they present themselves before attorneys with Daicoffπs personality traits, or who have unknown personal motives, or who also are unscrupulous, they can be assured that, if they have funds to pay, their legal advocate will bring suit on their behalves.

Once a suit ends, however, emotions still play a role for many complainants and respondents. In fact, emotions still may operate with great destructive power many years later. Memories of litigation may be positive or negative, healthy or destructive. If a case ends with its desired or unexpected better results, then emotions of surprise, joy, and similar feelings may arise. On the other hand, there are any number of negative effects lasting long after the case has closed.

The ≥losers≤ in litigation--most often respondents, but not alwaysãfrequently suffer long-term, latent effects from this complex and even threatening process. Financial jeopardy and ruin, substance abuse and addictions, domestic violence and divorce, mental disorders and disabilities, suicides and criminal acts, all have occurred as direct and indirect results of litigation. There are ≥winners≤ in litigation, however, who sometimes reflect on how their action brought harm to opponents in court, also experiencing unexpected emotional suffering.

Litigation as Business Strategy (Profit-Based)

Some suits are brought because complainants, or their attorneys, can foresee potential for profit. The essential reasoning is simple. If a case can be won and will bring financial or other benefits, the outcome suggests litigation is a legitimate business decision with calculated risks. There are many cases brought in U.S. courts that originate from this motive. Litigation as business strategy often is applied by business owners with full-time, in-house legal staff, where internal controls are high and costs predictable. Litigation as profit strategy also is at the base of many entrepreneurial law firms with high advertising budgets seeking new clients who may find such a strategy favorable for a contract. Many advertisements imply this, though law firms are careful to word their marketing within the limits of ethics codes.

From the point of view of many individuals, businesses, and attorneys, there is nothing inherently unethical litigation used for such purposes. If suits can be brought and won, whether before a judge or jury, the very fact itself suggests that the means is appropriate because the judgment of the court gives its approval to the end. The end justifies the means however the case is framed, or however presented.

For complainants and their attorneys, the favorable outcome, the official ruling of the court, reinforces the deductions that ≥We won. We were proved correct. We were compensated by order of the court, an agent of the government.≤ So long as there are no successful appeals, the facts seem to support the allegations of truth and justice.

To the general public unaware of such motives, the newspaper headlines and quotations by winning parties seem to suggest only facts, not fiction. The facts are that the litigation ended with one party winning, another losing. There is no awareness thatãparaphrasing playwright David Mamet through the actor, Paul Newman, in one of my personal favorite movies, The Verdict (1982)--the courts are not founded to ensure justice, but to permit opportunities for justice. Successful litigations often have nothing to do with justice, only legal victories.

Litigation Based in Personality Disorder or Mental Dysfunction

In the previous discussion, we considered two issues: (1) emotional parties bringing their cases for evaluation and assessment and (2) attorneys with personalities or their own emotional drivers called to offer assessment. There are some lawsuits brought by complainants with personality or psychiatric disorders with financial resources to use litigation as extensions of these disabilities. Litigation initiated by such complainants actually are the pleasure principle at work.

Since attorneys are not psychological experts, even if they surmise clients have ≥unusual problems,≤ many are willing to accept cases so long as fees are paid in a timely fashion. There is nothing in the law which prohibits an attorney from accepting a case with a client suspected, but not clinically established, of mental aberration or psychological dysfunction. In fact, criminal attorneys often accept clients with mental disorders precisely because the Constitution of the United States provides every person with the right to legal counsel.

So some complainants may start lawsuits to achieve their own purposes, unrelated to any real or perceived harm by the named respondents. The respondent may simply be, to use a common phrase, ≥in the wrong place at the wrong time with the wrong person.≤ Many people have been afraid of rear-ending a litigious person with a pre-existing agreement with an ambulance-chasing attorney. This is not what we are considering here. There are some litigants with financial resourcesãor fully encouraged by attorneys ready with their resources under the ≥right conditions≤ãwhose mental and emotional profiles use the court system to fulfill certain desires.

• The desire to exercise and wield power, a form of externalized controls over the world
• The desire to victimize and create suffering, a form of legal Sadism
• The desire to appear victimized, a form of martyr complex

Litigation, therefore, can be an extension of legalized bullying by persons with these and many more disorders. Because suits always are brought under the authority competent attorneys, such motives will remain hidden from examination, even if suspected because of serial litigations by the same complainant.

Litigation Declined: a Case of Conscience

Back in the late 1980s, I knew a young man, around age thirty, employed as an air conditioning and furnace repairman. His company was a subcontractor for a very large transnational defense contractor. The young man was assigned one winter day to repair a broken furnace in a mobile unit located far out on the company property. He went to the site, repaired the furnace, but noticed as he left, ≥everyone wearing white protective suits, like space men.≤ He indicated that ≥for several days later the hair was standing up on my arms.≤ He informed his boss when he returned, asked what was in the pools, and why he had not been warned, if there was something dangerous. The owner told him, ≥it was nothing, not to worry.≤ Some time later, he learned the pools were nuclear waste.

This father of five wasted away from a highly aggressive cancer throughout his body within two years of that event. He asked his employer to help him obtain evidence for the harm be believed had been done to him. As he was too ill to leave the hospital, I met with the employer and begged for assistance to provide his employeeπs soon-to-be widow and children with some kind of relief. No help was offered or given. He had no health or life insurance because his employer provided none, only an hourly wage. He died a horrible death and in great emotional distress. He knew he was leaving his beloved wife and children with enormous hospital bills and no source of income. His family would be destitute. The local newspaper showed him holding his newborn baby in the hospital where he died, one of his last acts as a loving father. Their children cried constantly for their Dad when he was in the hospital and in the grave.

I learned of this tragedy early in his diagnosis and thousands in this manπs community did what we could to raise money to pay for travel expenses and food during the hospital stay, and for the funeral. We raised $20,000. I interceded with the hospital administration, which kindly wrote off the bill. I met with his employer and sought cooperation in learning more about the circumstances. He was resistant and fearful.

After her husband was buried, I asked the widow if she planned to obtain an attorney to consider a suit against the defense contractor, or also his employer. Her answer is indelibly etched in my memory. ≥No, Iπm taking the children and moving back to Idaho to live with my parents. A lawyer will not bring David back to us.≤

The young wife happened to be a devout Christian. Emotionally and financially devastated, she refused to seek all the legal remedies to which she was entitled. Though she was angry at the persons we all believed were responsible for her husbandπs death, she refused to believe either the legal process or possibility of a high-dollar settlement or award were sufficient motives for litigation. She put the scoundrels in Godπs hands. A month later, she and the children were gone, moved to Idaho for loving support with her family. That was that. Most Americans, most people worldwide, might not have made the decision of that young widow. I would not have made it.

In the twenty years since that horribly memorable event, I have been sued. I have counter-sued. I have served in government to investigate, conciliate, and recommend for dismissal or hearing civil rights suits. I too am a Christian. But I probably still do not have the faith and obedience, the integration of character and inner strength, of that young widow, under the same circumstances.

I never have forgotten that womanπs decision on how to resolve her family crisis. I am not suggesting to readers they should adopt her method. There are some persons, I suppose, who have no extended family network offering at least one option. Neither am I concluding this woman was mistaken. I offer some summary thoughts about her choice and its implications.

• She gave up an opportunity through litigation to provide significant financial security for her children and herself.
• She is not alone in such a choice. Other persons have decided not to exercise legal remedies and whatever they may produce.
• She focused on giving 100% of her emotional, intellectual, and physical energies to the support and healing of her children. There is extreme emotional and physical distress common in litigation, whatever monetary or other outcomes.
• Her faith in God enabled her to displace consequences for a higher authority than human processes and imperfect outcomes.
• While we do not know if she ever had regrets, or if her extended family was able to provide her children and her with satisfactory support and stability, her known decision leaves us in deep reflection on how to manage anger, desires for retaliation, character, faith, and deep inner strength.

Litigation as Moral Choice

There are many readers with stories of their own. There are those who have suffered harms, perhaps comparable to the young wife in the story above. Perhaps they chose to bring suit, saw satisfaction in the processes of criminal or civil courts, and are pleased with the results. They may have sought out their attorneys, or been sought out by firms with which they contracted. They may have been, in perception or in truth, victimized again by the respondentsπ superior attorneys, or by ineffective or even corrupt judges, losing cases firmly grounded in fact, and which should and would have been won under other circumstances.

Litigation may be initiated for good and noble purposes. Litigation may be brought by highly ethical attorneys and ruled on by highly effective judges. The great proliferation of litigation in every field of American life suggests that millions of Americansãcomplainants, respondents, and those who are employed or seek employment from themãbelieve such legal actions bring satisfaction.

Leadership Ethics Online, LLC, teaches that litigation is a moral choice. Regardless of how our clients may feel emotionally, or how their thoughts have been shaped by legal professionals, we believe they owe themselves the best opportunity to consider courses of action suitable to their own ethical values. LEO will not provide legal counsel, nor will we advise against legal counsel received. We are here to assist clients in making choices they consider most moral within their value systems, without interference or judgment from our own value systems.

Who we are, how we respond to events, how we treat others who harm us (or who we may harm), how we think and weigh appropriate actions, how we define morality and justice, and how we view the purposes of our lives, all are intertwined in the tapestry we call our lives. Let LEO assist you in clarifying your own, best moral choice.

Summary

Whether you have scanned or read carefully this document, thank you for your investment of time of reflection. As you can tell from the conversational style and candid content, I have not sought to ≥make a sale≤ here but to share some serious reflections aimed to give you at least ≥one good thing≤ of benefit to you and your organization.

Leadership Ethics Online, LLC, practices what we teach. Lessons we share in seminars, or in creating online distance education training programs, are built on learning from education, professional experience, and personal life experience. In everything we offer, we give the best we have to you because we do remember our mortality. Our next client might be our last client, and we want to leave a legacy and impacts that continue after we are gone.

Contrary to good business practiceãat least as commonly understoodãLeadership Ethics Online, LLC, does not exist fundamentally to make sales, though thankfully, we do! Neither do we exist to please clients, in the sense that our ears are tuned to give them whatever they want so as to profit from them. We do please our clients because, when they contract with us, they understand who we are, what we are about, and what we offer. They contract with us in that knowledge and so both enjoy and benefit from our services and friendship.

We are here to serve the clientπs best interests as we have the insight and experience to make that happen. We practice the Golden Rule, trusting that our clients will be pleased by what that means in our business practice and the final products we create for them within our mission and capacities.

Whether we will serve you in the future or not through a contract, if you have enjoyed our little time together, I encourage you to contact me for advice or questions about issues you face as a leader, or a professional developing yourself for leadership capacity. I will freely give you the time I have in the firm knowledge that no time is wasted when invested in people searching for the best within them.

John D. Willis, President

Leadership Ethics Online, LLC

info@leadershipethicsonline.com

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