Decision-Making During Litigation: An Emotional Journey

A lot of people strive to make decisions with cool, clear, rational minds.  However, it’s really hard to avoid that most primal force: emotion. This is especially true in stressful situations — and few situations are more stressful than litigation. At times, this means that even the most rational people want an outcome that is not only just: they may also want one that provides them with a sense of victory or revenge or they just want the whole thing to go away.  

This means that a big part of our role in advising people in disputes is helping them manage the emotional turmoil and stress of a dispute or litigation. We do this by, among other things, having clients identify their primary goals so they can focus on what is most important, while, perhaps, shining a light on how their emotions and fears may push them away from these goals.  Doing this work at the start often helps clients position themselves to best resolve disputes to their satisfaction and can make the entire process more efficient. 

We also try to help clients think through the decision-making process and recognize the emotions raised by a particular situation. This helps clients avoid rushing to a conclusion just to get the stress over with, which can have big ramifications, especially when it comes to deciding when and whether to settle.

In practice, this means that we help clients understand not just the law, but what they’re going through and what they’re feeling. In other words, a big part of our job is making sure clients don’t get in their own way. We do this by helping clients dissect their emotions and how that fuels their decision-making process. Is it fear? What exactly are you afraid of? Is it anger? Is that anger clouding your judgment, impelling you not to settle when that’s the best call? Is it the anticipation of potential relief, of just getting this all behind you as quickly as possible, that might cause you to make a rash decision? Looking into the future, how will you feel one year, two years from now if you do X? What could cause you to regret that or feel good about that? We’ll talk about what you’re experiencing, try to identify the dominant emotions and what’s causing them, and use the knowledge to make decisions that will quell fears, satisfy desires and help achieve the best resolution.

Given that most disputes settle, a key aspect of this decision-making process is also figuring out the value of settling. Are you worried that the costs of continued litigation outweighs the potentially greater financial result of not settling now? How did you make that determination? At the beginning, we approach this by assessing the case. We work backwards from the client’s goal, examine the possible rewards and costs — and, again, the emotions associated with both. Together, we establish the basis for the entire process going forward that enables us to stay firm, focused and on track.