The untold cost of litigation

“What will it cost me?” These are the all too familiar words litigation solicitors hear during a consultation meeting, or over the telephone, during an initial call with a prospective client.

Depending on the complexities of a matter, this is when the discussion typically turns to hourly rates, whether the work can be undertaken for a fixed fee or on a time basis – and invariably, the financial consequences if the matter were to proceed to trial – particularly were they to lose and have to pay the other side’s costs.

However, litigation often has a greater and much wider impact than that just a monetary one – and this is often something of which solicitors fail to forewarn their clients to enable them to make a more informed decision at the outset.

Psychological Impact

While a claimant may have suffered a financial loss which they are seeking to recover (or a defendant has concerns of what damages and/or costs they could have to pay at the conclusion of a matter), being involved in litigation can also have a significant psychological effect on an individual.

As human beings, litigants cannot help but let their thoughts and emotions control them as these wander to historic details which are repeated in their mind, and they relive events, actions, and conversations at the time of the original complaint and wonder if things might have played out differently.

This position is only exacerbated by having to communicate with their solicitors and trawl through letters, emails, and text messages – as well as answer questions in order to present a strong argument or respond with a firm defence to the position put forward by the other side.

This is, of course, a natural element of the litigation process – and most solicitors fighting for their client will want as much information from them, but also aim to keep them updated throughout. However, it is questionable as to how many clients are alert to the constant bombardment of telephone calls, emails, and letters they shall endure – sometimes at the most ungodly of hours.

Of course, if the matter then does result in an individual having to proceed to trial, there is the anxiety of having to prepare for it, possibly having to stand in a witness box and be cross-examined – and possibly still having to await a judge’s decision – which, however swift, can still feel like an eternity.

Health and wellbeing

Clearly, therefore, litigation is a difficult experience which creates an emotive response – which, in turn, increases stress and anxiety. This, in turn has a negative impact on a person’s frame of mind, the decisions they make on a daily basis and their coping mechanisms – which in most cases can be a case of what they eat (or more often overeat) to more extreme cases such as substance abuse and other addictive activities to mask their pain.

Stress can, therefore, manifest itself as a variety of emotional symptoms which can include becoming easily agitated, or frustrated, feeling overwhelmed (as if you are losing control or need to take control), low self-esteem as well as feelings of loneliness and worthlessness.

Worse still, stress can also lead to a whole host of physical health issues, from muscle aches to chest pain and insomnia, to long term effects such as high blood pressure and abnormal heart rhythms so often experienced by parties to litigation because of high levels of cortisol in the body.

Of course, it is difficult to predict when litigation may end, particularly if a matter is incapable of early resolution and therefore, parties are hostage to the court’s timetable instead – which is a greater worry for those with underlying health problems, given if certain conditions are not treated in good time, or alleviated swiftly, they can lead to heart disease, heart attacks and even strokes.

In addition, such anxiety coupled with recent events have only served to exacerbate the toll on people’s mental health with the Office for National Statistics reporting depression rates have doubled since the covid-19 pandemic began. This position, of course, is only likely to worsen, given the growing cost of living crisis as those in less advantageous economic positions struggle to make ends meet.

This alarming outlook, coupled with greater pressure on health services, suggests there shall be less access to services for those suffering from mental health issues – and as a result, this shall have long-term implications – not only for individuals with pre-existing cases, but also those who, like many litigants, suddenly face such challenges despite previously having been of good health and sound mind.

Business impact and economic loss

From a wider perspective, enduring the time-consuming trials and tribulations of litigation are no small feat – after all there are still only 24 hours in a day. Whether an employee or a manager or director of a business, being embroiled in any form of litigation can be a drain on energy, time, and resources for a company – not to mention the emotional upheaval on office holders which can often lead to the inability to make sound and timely decisions.

This can result in a lack of productivity, a negative effect on the business’ bottom line as decisions are put on hold and/or time invested elsewhere resulting in the company becoming overall less successful than its competitors.

Worse still it can also tarnish a business’ reputation, which might have taken years to develop in a matter of days and weeks – particularly if the litigation is widely publicised, thus leading to consumers shunning a company, or its long-term investors withdrawing financial support for the future.

The consequences, therefore, of litigation may be disastrous if sales fall, the value of a company declines and ultimately the business cannot recover from any irreparable damage, forcing it into insolvency – and the end of the company for its owners, officeholders, and staff.

Of course, with hindsight, many litigants may never have chosen to pursue litigation (or may have been wise to settle it early) had they given serious consideration in the first place to the fact time, energy, and resources might have been better invested elsewhere – particularly, into their own company operations, their client and investor relationships – or simply their work and careers.

In turn, while they may have suffered a loss which they can substantiate at the start of any litigation, what is often forgotten is the economic loss of chasing the recovery of the same at the risk and consequence of stunting what individuals do both in the present and the future.

Litigants would be wise to therefore, be reminded at the outset of the financial gains they might achieve both professionally and financially if litigation were not to divert their focus away from their goals and aspirations for the future, to pursue monies or matters of principle in the past.

Relationships

Most importantly, many people forget,whatever their stresses and strains during litigation, their behavioural traits change, and this can have a damaging effect on those around them – from colleagues and friends to family members from siblings to partners – and particularly their children.

Litigants commonly endure constant worrying, racing thoughts and an inability to focus, but this can lead to forgetfulness, disorganisation and poor judgment, which is detrimental, both in the workplace and at home – particularly when it leads to pessimism and procrastination, thus avoiding their responsibilities because of feelings of being unable to cope with the mental burden upon them.

The fallout can be even more severe within adults consumed by anger, frustration and emotional pain, who lash out at their loved ones, causing irreparable damage within their closest relationships. Of course, this is a high cost to pay when it can so often lead to separation or a divorce and children having to grow up in a different kind of family unit – one where their parents are not together – and in in the worst case scenario, cannot even bring themselves to be civil to each other even if only for the sake of their children.

This is because when litigants are in too much distress they can often transform from loving and caring individuals to erratic and hostile people, who have limited energy or the ability to focus. Instead of, therefore, investing their energy into their loved ones they turn back to the litigation in a desperate and obsessive attempt to succeed (or gain one over on their opposite party) while their own world crumbles around them.

Conclusion

So often people forget what matters the most until it is gone. While many might say that the litigation begins with a financial loss, it is sometime more important to consider what is at stake were they to pursue this path, what the ultimate cost to them might be (not just in monetary terms) and what they are at risk of losing were they to become embroiled in a prolonged legal fight.

While solicitors are often sought for legal advice their clients might, therefore, be better served by being reminded at the outset to contemplate what they are about to embark upon – and to give serious consideration to the risks and implications of the litigation process that has been discussed thus far.

More importantly, clients might be encouraged, before speaking to their legal team again, they may want to take a step back, review the situation and try speaking to someone who could help them assess the true cost of litigation … and that that person is unlikely to be a lawyer.

Niten Chauhan is dispute resolution partner and Head of Restructuring and Insolvency at Harold Benjamin: haroldbenjamin.com

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