When traveling in the Galapagos, I had the amazing opportunity to visit various islands—each unique with their own set of flora and fauna.  I am still amazed to this day of one theme common to all the islands.  As our tour guide explained it, the animals somehow evolved without any natural predators.  I’m sure there is an actual scientific evolutionary explanation but the details are lost on me.  Without predators, the animals don’t engage in conflict.  Each animal is at the top of the food chain and lives on vegetation typically.  For example, we were told not to worry about the sharks or the stingrays as we snorkeled with them.  Our biggest fear were the baby sea lions who occasionally got overzealous as they played and would bite at our wet suits.  The animals weren’t someone else’s dinner nor did they go out hunting.  Effectively, they had no propensity to engage in conflict with other species. 

This started me thinking about America and our litigious society.  Our society has fostered a litigious environment and people and business suffer the consequences.  You can scour the internet and find advice on how to protect and preserve your wealth in today’s litigious society.  You can also read scholarly articles on the breakdown of doctor-patient relationship due to the lack of trust created by ongoing malpractice claims.  We constantly struggle to protect ourselves against one another in this dog-eat-dog world.

Even in this litigious society, there are still some who chose a different path.  I’ve been thinking a lot about what drives individuals to file a lawsuit.   Are some people more prone to litigate than others? What makes someone elevate a simple dispute into a complex legal action?  What makes an individual turn their back on the “normal” ways to resolve a dispute (i.e. talking it out) and instead opt for a lengthy expensive and timely battle? 

I’m not a psychologist and I do not study social behavior.  I don’t know what drives people to do things.  With a background in philosophy, I ask these questions more from a philosophical stand point.  I work at a law firm so on a daily basis I deal with cases where people have resorted to litigation.  I also know myself, and I know that lately I’ve had the opportunity to file a few lawsuits of my own but I did not.

Recently I have avoided litigation.  For example, I live an apartment complex.  In the past six months, I had a slip and fall accident from a puddle in the common area perhaps resulting in a premises liability and negligence action.  I also was chemically burned from the chemicals in a pool perhaps resulting in a negligence claim.  I could have sought medical attention to better document my injuries.  I could have taken a water sample from the pool and sent it off for testing.  I could have photographed the puddle that caused my slip and fall accident.  I could have filed these law suits against my apartment complex, but I didn’t.

Perhaps you’re thinking to yourself that my claims were for small injuries and after weighing the cost benefit, it would be silly to file this action. But we know that people resort to litigation over both big and small sums of money.

While serving as a volunteer mediator in small claims court, I saw people go to court over $800.  Never mind the fact that each party took that day off, paid the expense of travel and/or lodging, sat all morning and afternoon waiting to be heard by the judge.  If they were lucky, the judge would hear their case that day.  Depending on the Court’s backlog, they might have to wake up and do the same thing the following day.  The expense alone of bringing the action counteracts any benefit they might gain if they win. 

I also see people going to court over millions of dollars.  This makes a little more sense.  In these difficult economic times, mistakes are less easily forgiven.  When money is tight and times are hard, individuals are more likely to fight to recover and recoup their losses.   But don’t think for a second that these multi-million dollar claims don’t have their own costs.  Both plaintiffs and defendants will spend hundreds of thousands if not millions on legal fees.  The chances of winning on all their claims is unlikely especially as more cases are kicked to arbitration—where arbitrator’s are more likely to “split-the-baby.” 

There are also relationships costs as the stress of litigation is likely to affect one’s personal relationships with friends and family.  Litigation is a lengthy process and each phase is stressful in its own way.  Taking the initial step to file a lawsuit is a tremendous decision that plaintiffs inevitably struggle with. Defendant also struggle to deal with the reality of litigation that is imposed on them.  Likewise, the discovery process forces individuals to relive every detail of the past and document each aspect of the dispute.  As the litigation battle continues, lawyers try to eliminate the need for trial engaging in endless rounds of law and motion. The parties engage in mediation and settlement talks—per the court’s requirements—which forces them to weigh the cost benefit of going to trial.  The longer the parties are embroiled in litigation, the harder it is to settle.  The expense of trial is relentless.  If parties make it to trial without settling, the trial brings it own stresses.  The fate of the legal action is in the hands of the judge or jurors.  At this point, after devoting years to a lawsuit, both plaintiff and defendant are powerless. 

I am not sure what make an individual persevere through the stresses of litigation.  In some cases, the legal battle is justified—as it is when fighting for human rights or pursuing a form of activism. But everyone else, I think they just want to be right.  Why else would one willingly sacrifice friendship, family, and even personal sanity to prove this?  In this day and age, there are so many alternatives to litigation.  And in fact, most cases do settle.  But for the few that do not, why do you think that is? What do you think drives a person to litigate?

Mikita is the Editor-in-Chief of ADR Times. She is also an attorney at Seastrom Seastrom & Tuttle focusing solely on Family Law . Before that, she worked predominantly in litigation and arbitration in the field of construction and business litigation insurance defense. She received her Juris Doctorate at Pepperdine and a Masters in Dispute Resolution from the Straus Institute. Mikita has been published in the Pepperdine Dispute Resolution Law Journal and worked at the Centre for Effective Dispute Resolution in London. As an avid traveler, she continues to explore various dispute resolution issues and how they vary from region to region.