Litigation out of control

Texas Collaborative Law Blog published Why Some Litigation Gets Out of Control. I cannot disagree with this list and suggest it be read and thought on:

1. There is an emphasis on attacking each other. Lawyers, and often their clients, have a natural tendency to attack the other side to try to "win" the case. Such an approach is destructive to personal and family relationships. Damage from an ugly divorce can be difficult or impossible to correct.

2. Some people have more money than sense. While some people reduce their fighting when they start to run out of money or when they realize there is little value left to be gained by fighting, others never slow down until their lawyer withdraws for non-payment of attorney's fees. A case can get out of control when the parties lose their sense of proportion, when the cost of litigation approaches the value to be gained. Sometimes, people just get stubborn and fight as "a matter of principle". That's almost always a bad decision.

3. The parties experience frustration due to an inability to control the outcome. In almost every litigated case, there are negotiations. Sometimes they result in settlements and sometimes they don't. When a case actually goes to trial, even for limited issues, and especially where major issues are to be decided by a judge or jury, it can be a very frustrating experience for the parties because they have so little personal decision-making power. Judges often will severely disappoint one or both parties who may not understand how a judge could find facts so different from how the party "knows" them to be.

4. There is a common strategy to win a war of attrition, or wear out the other party. It doesn't take too much creativity to just keep pressuring the other side, but it sometimes leads to a side giving up. It is very unpleasant to be the recipient of the continuous "hammering". In the end, there may be a settlement, but there would have been tremendous damage to family relationships and that often leads to continuing conflict for years to come.

5. Some attorneys don't attempt to control their clients or moderate their behavior. Sometimes, that is because the attorney believes his or her role is to just stand for, or just do the bidding for, the client without trying to control, direct or moderate the client's actions. The attorney does not offer to help the client by suggesting alternatives to a very aggressive and demanding approach. Without an attorney willing to manage the client, major trouble can develop.

6. Sometimes, the parties get frustrated by legal limitations, such as having to use guidelines and comply with statutes. If the parties are negotiating, especially in a Collaborative context, it is easy to work around restrictive statutes and rules. On the other hand, litigation usually follows various statutes that limit the options of the parties and the judge.

7. There's no professional neutral behavioral help. Most of the time, at least in the North Texas area, Collaborative cases include a neutral mental health professional who is a valuable asset in keeping the heat down in a case. Both parties feel safer, better listened to and more able to participate when Collaboration is tried. In litigation cases, crazy, angry, depressed or anxious people generally don't get help, and that makes it hard on everyone.