Preventing “Critogenic” Harms: Minimizing Emotional Injury from Civil Litigation

Abstract

Litigation is always stressful for the parties involved, and certain emotional injuries from litigation itself, termed “critogenic” (law-caused) harms, can be identified to aid attorneys in recognizing them. These harms include delay, adversarialization, retraumatization, violation of boundaries, loss of privacy, and arrested healing. After discussing critogenic benefits of litigation for balance, the authors offer approaches for minimizing the impacts of the above harms on clients.

Living Through Litigation: Malpractice Stress Syndrome

“…Even a highly meritorious case is emotionally stressful to defend. Attorneys, because of their own comfort in the legal environment, may not recognize how disorienting, hostile, and intrusive the world of law is perceived to be by their clients (Gutheil, 2000). Strassburger (1999) states that "there is an inherent irony on the judicial system in that individuals .…”

“…The delay, cyclical rise, and fall of hope can lead nurse defendants to become emotionally numb as a way of coping. The separation between the event and its legal resolution may prevent emotional healing even when the case is finally resolved (Gutheil, 2000).…”

“…Emotional wounds are kept open by the long and arduous litigation process, delaying healing. The profound loss of privacy and public exposure of personal information may alter relationships the nurse defendant has with his or her coworkers, supervisors, and family members (Gutheil, 2000). Most defendants feel that their families suffer as well.…”

Restoring Rape Survivors

“…For example, one recent textbook demeaned nonrape sex crimes by referring to them under the chapter title “nuisance sex behaviors” (Holmes & Holmes, 2002). The term critogenic harms has been coined to denote the traumatization of litigants caused by the justice process (Gutheil, Bursztajn, Brodsky & Strasburger, 2000).…”

Restorative Justice for Sexual Violence

“…Victims who participate in a civil or criminal trial learn that their role in the justice process is to serve as ‘evidentiary cannon fodder for the defense attorney’ (Braithwaite & Daly, 1998, p. 154). The term critogenic harms denotes law‐caused harms to litigants (Gutheil, Bursztajn, Brodsky & Strasburger, 2000; also see Des Rosiers, Feldthusen, Hankivsky, 1998; Frazier & Haney, 1996). Problematic features of the courtroom experience for sexual crime victims include the public nature of the procedure combined with the demand to retell intimate details of the offense, the sequestering of witnesses who may also be the victim's family and supporters, and defense attorney questioning that exacerbates self‐blame.…”