Preventing "critogenic" harms:
minimizing emotional injury from civil litigation

By Thomas G. Gutheil, M.D., Harold Bursztajn M.D., Archie Brodsky, B.A., and Larry H. Strasburger, M.D.

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.

Authors' note: The authors thank Professor Hilary Putnam for his inspiration; members of the Program in Psychiatry and the Law, Massachusetts Mental Health Center, Harvard Medical School, for the dialogue that defined and elaborated the concept of critogenesis; and Steven Behnke, J.D., Ph.D., for critical review. Some points made in this paper were alluded to in the Manfred S. Guttmacher Award lecture, American Psychiatric Association, May 31, 1998.

When action by a physician results in illness or injury, those harms may be described by the familiar term "iatrogenic," meaning "physician caused" (iatros, physician; genic, sprung from, Greek). Thus, when a patient's pneumonia is treated with penicillin and the patient experiences an allergic reaction to the drug, the pneumonia is a bacterial illness with a particular medical origin, while the allergic reaction is an iatrogenic illness.

Experience in the forensic realm reveals that there has been a need for a comparable term to describe emotional harms resulting from the legal process itself-harms that are widely recognized [1,2] but are commonly treated as invisible to and by the law, as though the plaintiff's or defendant's progress through the legal system were an emotional nullity.

The Program in Psychiatry and Law uses the adjective "critogenic" (to convey "law-caused") and the corresponding noun "critogenesis." [3,4] The terms are analogously based on Greek roots: crites, judge (compare English "critic") and genic, sprung from.

The present article explains and applies the terms and demonstrates their utility in understanding the emotional impact of civil litigation. Note for clarity that these terms are not intended to refer to the vicissitudes of the law when it is working badly: antiquated, unfair laws; corrupt, venal attorneys; incompetent, biased or alcoholic judges; or prejudiced jurors. Those regrettable situations describe themselves. Rather, critogenesis relates to the intrinsic and often inescapable harms caused by the litigation process itself, even when the process is working exactly as it should.

For balance we might identify critogenic benefits: the emotional gains accruing from litigation. It is interesting that these gains do not require winning—emotional benefits may flow simply from bringing a case. Such benefits might include empowerment and the sense of being heard; relief from traumatic helplessness by bearing witness; making someone aware of having wronged or injured you; satisfaction at overcoming another's denial; and calling attention to a social or civil problem in need of remedy. Such potential benefits may be explicitly sought and even be cited as inducements to litigate by attorneys, friends, relatives and the media. The present discussion aims at reducing the harms and fostering the benefits.

Libel suits proffer a special case of emotional (as well as more tangible) benefit. A legal scholar noted that in most litigation one sues to win; however, with libel suits, one wins by suing. [5] That is, while libel suits are notoriously difficult procedures for plaintiffs to prevail in, the publicity around the suit itself can actually help to remedy the injury done to the reputation by the alleged libel in the first place: the public supposedly reasons, "Since they are boldly and openly suing for libel, they must indeed have been wronged by the press." On the other hand, such suits may express a plaintiff's guilty need for attention and publicity, disguised as a display of victimhood.

The issues here addressed would apply equally to plaintiffs and defendants. However, since plaintiffs initiate suit and have various wishes and fantasies about the outcome, some of these points may apply more directly to them; defendants, of course, must participate in civil litigation willy-nilly, if only by refusal to settle the case promptly.

The context

In the current American climate, citizens appear to regard the right to sue someone for an injury (or even an imagined injury) as sacred, perhaps even a duty. [6] Many of those wouldbe litigants, however, have only the faintest sense of what being a plaintiff actually entails, a sense gained mostly from highly publicized (and thus atypical) trials and the fictionalizations of the dramatic media such as movies and television.

More significantly, consultative experience in hundreds of cases reveals that although some attorneys are both willing and able to give potential clients clear ideas of what to expect from the legal process, often this preparation is directed toward the events to be expected (interrogatories, depositions, etc.) or outcomes ("We might lose or get less of an award than we expect"). Unfortunately large numbers of attorneys fail to prepare their clients for the emotional burdens of the litigation process itself-win, lose or settle. This matter could be portrayed as an issue of the attorney's failing to envision and obtain what would be seen in medicine as fully informed consent.

There are several possible reasons for this failure. First, though many attorneys understand from medical cases the importance of physicians' obtaining informed consent to medical treatment, they often do not see the parallel ethical need in their own profession—a need not codified in any formal guidelines, but arising from clients' ignorance and vulnerability and the lawyer-client power asymmetry. Since, as with medicine, lay persons are entirely unequipped to understand and hence unprepared to face the realities of the course on which they are about to embark, the professional, who has the knowledge, acquires a broad ethical duty to inform the client of the costs and benefits of going forward with the case, including its emotional costs and benefits. As is discussed below, this may be particularly relevant to cases of post-traumatic stress disorder and "recovered memory."

Second, since the subject of the emotional costs of litigation might constitute a deterrent to bringing suit, an attorney might be reluctant to discuss the "cost" side of the equation with plaintiffs lest they lose motivation for the suit, or with defendants lest they be moved to capitulate. Note that this last point is entirely independent of the strength of the merits of the case in question: Even a highly meritorious case with clear-cut issues may be emotionally stressful to undertake or defend. Note also how this issue parallels physicians' fears of deterring patients from consenting to needed treatment by reviewing daunting side effects.

Third, although many attorneys are appropriately empathic with their clients' suffering from their original alleged injury, a surprising number of attorneys appear not to recognize, or to lose sight of, the difference between their own comfort in their natural legal environment and the disorienting novelty, occasional overt hostility, and unexpected intrusiveness of that same environment as perceived by the client. An attorney thus could not be expected to prepare a client for a stress of which the attorney is simply unaware. Attorneys may also underestimate the impact on the client of the "other side's" aggressive tactics.

The above factors and others make it important to explore the concept of critogenic benefits and harms from at least two points of view. First, by employing the approaches described herein, attorneys may benefit from better relations with clients and clients' better emotional outcomes of suits. Second, expert witnesses assessing emotional injuries in any forensic context may become better able to more accurately factor out those stresses deriving from the original alleged injury from those intrinsic to the litigation process. Third, referral for treatment can be made early in the litigation process to minimize the amplification of harms from the stresses of being a party to litigation.

Critogenic benefits

These benefits, as noted above, extend beyond the simple aim of compensation in money. For example, a patient in a psychiatric sexual misconduct suit was delighted with a trivial and inadequate jury award because, in mediation negotiations early in the process, the doctor had refused to apologize and admit how he had harmed the plaintiff. Deprived of this intently sought response, the plaintiff felt validated by the jury, who formally acknowledged wrongdoing by the doctor.

A second plaintiff expressed it thus: "What had meaning for me was that the jury, a group of twelve people, stood with me and said this was abuse and the defendant was responsible." [7]

Strasburger noted: "While a sexual harassment victim may not be able to require the abuser to come to her therapy, she can force him to respond to interrogatories, submit to depositions and appear for trial." [8]

Describing litigation after a child's death from failures of managed care, Welch, a psychologist and attorney, suggests [9] that benefits of litigation include the cathartic expression of rage, with anger focused on the real and external enemy. He notes:

. . . oftentimes the litigation becomes a part of the grieving process. For many [parent-litigants] the litigation is more akin to building a memorial to their child, enabling them to psychologically visit the child's gravesite. [10]

Since the potential benefits are more readily identifiable, we here focus more on the critogenic harms. These harms merit attention in addition because of their apparent frequent invisibility (and unspeakability) to those who work within the legal system.

Critogenic harms

There is an inherent irony in the judicial system in that individuals who bring suit must then endure injury from the very process through which they seek redress; the legal process itself is a trauma. Both plaintiff and defendant are confronted with the challenge of managing the emotional burdens of litigation. "Contemplating, undergoing or having undergone a suit is distressing and disruptive. It saps energy and distracts from the normal daily preoccupations that we call 'life.'" [11]

Symptoms such as sleeplessness, anger, frustration, headaches, inability to concentrate, humiliation, anxiety, loss of self-confidence, isolation and helplessness are not uncommon. These signs of distress are intensified by the common phenomenon of "resource burnout": Peers, friends and family members may find their tolerance exhausted for the litigant's need for connection and for opportunities to talk about the experience. Such burnout, in turn, can amplify pre-existing distress. Sadly, the judicial system itself is ill-equipped to provide the sympathetic understanding that patients may seek. [12] "Litigation is not for the faint-hearted." [13]

The stresses mentioned above are, in one sense, generic; they are common to all forms of litigation and draw from many sources of stress. However, certain harms derive more specifically from the inherent structure and progression of a suit. Those specific critogenic harms here examined are: delay; adversarialization; splitting or elimination of ambivalence; retraumatization; boundary violation; loss of privacy; and prolongation, vitiation or even arrest of the emotional resolution or healing process from a claimed injury.


Anyone familiar in the least with the legal process understands the ubiquitousness of delay. Courts are crowded, different schedules of judges and attorneys have to be choreographed and coordinated, and unexpected interruptions and postponements are common. In medical malpractice cases, a seven-year interval between filing and trial is not uncommon. In sum, the Constitutional ideal of a "speedy trial" has become an oxymoron.

The emotional impact on each party varies considerably. Any expectation of resolution of the litigated issue is agonizingly prolonged. Repeated scheduling of trial dates arouses hope of a day in court—hopes that may be as repeatedly dashed with each postponement or continuance. This cyclical rise and fall of hope may lead clients to become emotionally numb as a way of coping with this cycle.

In contrast, another plaintiff may report some positive "numbing out" effect from delay, with a decrease in perceived acute pain and the gain of some emotional perspective.

The separation in time of the injury from its legal resolution also may decrease and may even prevent emotional closure on the matter when the case is finally resolved. Even winning your case, ten years after the incident that is being litigated, may feel like a hollow victory, since the intense wishes for satisfaction, retribution, revenge, justice or closure—the emotional wellsprings of the litigation—may have become dry over the years.

In her important autobiographical narrative, Defendant, Dr. Sarah Charles noted: "I experienced . . . no sense of victory after the trial. . . .There is always too much sadness and disruption for everyone concerned on both sides of the case." [14]


American law, of course, is an adversarial process. This structural feature may have destructive emotional impacts as well. Since litigation may have many affective goals beyond simple financial compensation—to get the other side to admit wrongdoing, to wring an apology from someone, to prove oneself right in a dispute—the "other side" of the case may not necessarily be hated or despised. Indeed, the litigant may explicitly want a continuing relationship with the defendant.

An example in practice occurs when a patient sues a doctor for malpractice but wishes to continue in that doctor's care. This is a logical paradox but not a clinical one. The litigation may be expressing goals and attitudes other than cessation of treatment. However, the adversarialization of a suit would probably preclude such an arrangement in practice. Defendant physicians are advised not to continue to treat patients who are suing them, but to make appropriate referrals.

Another example may occur when an adult during therapy recovers memories of childhood sexual abuse and attempts to deal with this clinical issue by legal means [15]—i.e., by suing the alleged parental perpetrator. On clinical grounds and in the patient's interests, such issues are best resolved in the therapeutic context: working through the past experience, dealing with the troubling symptoms, and going on with one's life. Litigation, however, precludes such an approach by shifting the venue to an adversarial setting that may well prevent, for example, such constructive approaches as working with the family in therapy together.

Splitting or elimination of ambivalence

In a reciprocal fashion, litigation can function as a zero sum game in which all ambivalences are split apart and located on opposite sides of the case: "pro" on one side, "con" on the other. [16] Since most real human feelings are mixed, this restructuring removes the case from real human experience: The other side becomes "all bad," and the legal efforts are consistent with—indeed, reinforce—the litigant patient's desire to see the situation in black and white. As with the untreated borderline patient who must employ splitting as a defense, the patient is deprived of the growth opportunity to master and contain ambivalence in mature fashion.


When litigation has followed on some trauma, each stage of the legal process—designing and filing a complaint; answering what may be repeated waves of interrogatories; depositions; and the trial itself—may all be occasions to reawaken the original traumatic event in the plaintiff's mind, to force reexperiencing it and thus to produce a retraumatization. The cumulative effect of what amounts to serial trauma may be severely damaging in the very area where compensation is sought, if the therapy pays insufficient attention to the plaintiff's sensibilities.

Pittman has commented [17] in this connection that for patients with post-traumatic stress disorder involved in lawsuits, the psychological defense of avoidance (of the traumatic experience and its memories) is thwarted by the obligatory interviews with attorneys and experts, depositions, and courtroom testimony. This failure of avoidance causes a resurgence of intrusive traumatic ideation and increased arousal. [18]

The above formulation does not address, however, the possibility of a victim's desensitization by repeated exposure to discussion of the trauma, an outcome that may foster clinical improvement when such exposure occurs in a context where the victim is no longer alone and helpless—e.g., is in a supportive therapeutic relationship.

Boundary violation

Through the extensive amount of personal exposure and forced public disclosure of personal information associated with litigation, the legal system may violate boundaries, fostering feelings that the world is an unsafe place and sometimes recapitulating past traumatic boundary violations that may have been the occasion for the suit itself, as in this example:

A patient sought help for dissociative disorder; her psychiatrist initiated a sexual relationship. During the resultant malpractice trial, large sections of her chart were read into the court record. Asked what it was like having her personal chart read in open court with reporters present, the patient confessed that she coped with this by spending the entire court day in a dissociated state—the very problem for which she had first sought help.
Loss of privacy

Halleck has noted [19] that litigation counts among its many stresses for plaintiffs the profound loss of privacy that comes with the exposure of discovery. The effects of this loss include altered relationships and the inherent stress of revelation of conflicted or shameful material as part of the case.

Arrested healing

In close conjunction with the above problem, litigation routinely (but not inevitably) delays healing. Any emotional wound approached by litigation is kept open by and during that process. In some cases consultative evidence suggests that litigation can operate as a kind of developmental arrest; a person in therapy for an emotional injury who is simultaneously suing for damages may be unable to make progress in the therapy because of this human response. We are not here suggesting the malingered continuation of illness so as to remain "compensable" until the trial is over. Rather, we suggest that conscious distraction, fixations created by the legal process, and the conscious or unconscious location of an issue in an external (legal) setting may interfere with personal and internal growth in therapy.

In another context, Strasburger has noted:

. . . the statute of limitations may have rushed the patient into litigation before he or she was psychologically ready to face an adversarial proceeding. . . . litigation may be seen as a developmental process out of phase with other development, even holding [the latter] hostage. [20]

Note here that an "informed consent" process with the attorney may be of critical importance in helping the prospective plaintiff make sound decisions about whether and when to sue in a given case. Consultation with a mental health professional may concretely assist the attorney in this decision.

Note also the paradox implied in the above point: In terms of the emotional readiness of the litigant to bring suit, the law may be too slow (i.e., through delay) and too fast (i.e., through precipitous or premature confrontation with the painful issue, compelled, perhaps, by considerations of statutes of limitations).

Some thoughts on "therapeutic jurisprudence"

The term "therapeutic jurisprudence," devised by law professors David Wexler and Bruce Winick, [21-23] points to the fact that the law can, indeed, serve therapeutic ends, although, in an adversarial system, we suggest that this is only half of the story. The law can effect significant social change and protection of rights that may be therapeutic even at the individual level—but it is a blunt instrument. As we suggest above, the law can be harmful as well as helpful in achieving therapeutic goals such as resolution, tolerance, restoration of perspective, personal growth, and mature acceptance of loss.

Conclusion and recommendations

That litigation is stressful is widely recognized and accepted. The specific mechanisms are less widely known, in part, as suggested here, because they blend into the background, as it were, of the normal functioning of the legal process. Certain harms that we have termed "critogenic" may flow from the normal course of the law, to the detriment of litigants. Similarly, the strategies outlined above, including informed consent in this novel context, coupled with awareness of the related issues described above, may aid considerably in decreasing this human cost of litigation.

As Bursztajn has noted, [24] everyone is phobic about taking the witness stand, including the parties. Much of this fear can be alleviated by planning, by consultation, but first by awareness that the litigation process is an affective experience, not only for the jury but for claimants, defendants and witnesses.

Early referral for treatment (if this is not already in place) may be highly beneficial for both plaintiffs and defendants in civil actions. While the literature alludes to supportive therapy for defendants, (e.g., Charles [25]), plaintiffs can also benefit from this resource. Such treatment may be appropriately aimed at both the original harms at issue in the suit and the harms amplified or caused by litigation itself. Of course, because of role conflicts, this treating clinician should not serve as an expert witness in the case. [26,27] By maintaining clear role distinctions, even from the outset; by engaging the patient in informed consent; and by attending to the dynamics of litigation itself, potential benefits of such treatment may be maximized, and potential harms of litigation—the critogenic harms—may be minimized.


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  2. Charles SC, Kennedy E: Defendant: A Psychiatrist on Trial for Medical Malpractice. New York: Free Press, 1985.
  3. Bursztajn HJ: More law and less protection: "Critogenesis," legal- "iatrogenesis," and medical decision making. J Geriatr Psychiatry 18:143-153, 1985.
  4. Gutheil TG, Bursztajn HB, Brodsky A, Alexander V: Decision Making in Psychiatry and Law. Baltimore: Williams and Wilkins, 1991.
  5. Bezanson RP, Cranberg G, Soloski J: Libel and the press: Setting the record straight. 1985 Silha Lecture, University of Minnesota Silha Center for the Study of Media Ethics and the Law, May 15, 1995.
  6. Gonzalez ML: Medical Professional Liability Claims and Premiums, 1985-1995. Socioeconomic Characteristics of Medical Practice. Chicago: American Medical Association, 1997.
  7. Strasburger LH: Manfred S. Guttmacher Award Lecture, annual meeting, American Psychiatric Association, Toronto, May 31, 1998.
  8. Strasburger, supra note 7.
  9. Welch B: The anatomy of a managed care lawsuit. Psychiatric Times, Sept. 1998, pp. 11-12.
  10. Strasburger, supra note 7, at 11.
  11. Strasburger, supra note 7.
  12. Pittman RK, Sparr LF, Saunders LS, McFarlane AC: Legal issues in post-traumatic stress disorder. In: Van der Kolk BA, McFarlane AC, Weisaeth L (eds.): Traumatic Stress: Effects of Overwhelming Stress on Mind, Body and Society. New York: Guilford Press, 1996.
  13. Strasburger, supra note 7.
  14. Charles, supra note 2, at 176.
  15. Gutheil TG, Simon RI: Clinically based risk management principles in recovered memory cases. Psychiatr Services 48:1403-1407, 1997.
  16. Gutheil TG, Magraw R: Ambivalence, alliance and advocacy: Misunderstood dualities in psychiatry and the law. Bull Am Acad Psychiatry Law 12:51-58, 1984.
  17. Pittman, supra note 12.
  18. Ibid.
  19. Halleck SL: Perils of being a plaintiff: Impressions of a forensic psychiatrist. Clin Orthopaedics and Related Research 336:72-78, 1997.
  20. Strasburger, supra note 7.
  21. Wexler DB: Therapeutic jurisprudence and changing conceptions of legal scholarship. Behav Sci Law 11:17-29, 1993.
  22. Patry MW, Wexler DB, Stolle DP, Tomkins AJ: Better legal counseling through empirical research: Identifying psycholegal soft spots and strategies. California Western Law Rev 34:439-455, 1998.
  23. Wexler DB: Applying the law therapeutically. Applied & Preventive Psychol 5:179-186, 1996.
  24. Bursztajn HJ: The phobic in court. Phobia Forum Spring/Summer: 2-3, 1992.
  25. Charles, supra note 2.
  26. Strasburger LH, Gutheil TG, Brodsky A: On wearing two hats: Role conflict in serving as both psychotherapist and expert witness. Am J Psychiatry 154:448-456, 1997.
  27. Bursztajn HJ, Scherr AE, Brodsky A: The rebirth of forensic psychiatry in light of recent historical trends in criminal responsibility. Psychiatr Clinics North Am 17:611-635, 1994.