The Psychology of Litigation: Diagnostic & Statistical Manual of Mental Disorders

Going to court can bring out stress. People do not always behave their best and it is usually one of the worst periods in a person’s life. Whether your lawsuit is against a formerspouse, employer, business partner, or another, it is not unusual for the pressure to push someone into an uncharacteristic mental state. This is what our blog series on the “Psychology of Litigation” addresses. Major stress factors in life include emotionally charged situations or big life changes. This includes Litigation. (See Holmes and Rahe’s (1967) Social Readjustment Ratings Scale here). Litigants should be prepared for the mental stress of Litigation and ready to run the Litigation course long term, if necessary.

How different people deal with situational distress caused by litigation can be affected by whether they have a mental condition – diagnosed or not. If mentally healthy people suffer such distress, then imagine the different types of reactions common among people with certain mental disorders, as defined by the American Psychiatric Association!

The ability of litigants to manage their stress can greatly effect their case. Whether dealing with a relatively normal or healthy litigant, or one who is a diagnosed dangerous sociopath, is important to anticipate in legal litigation. Litigation and the rules of civil procedure are similar to a chess game. The psychology of litigants, attorneys, the Court, as well as other witnesses and third parties can affect your case greatly, especially in high dollar civil litigation, employment discrimination cases or in family law courts. Some areas of law are not as affected by the psychology of litigants, but the psychology of people is usually at issue to some extent.

While there is a distinct difference between personality characteristics and a personality disorder, it is always useful to understand the type of person you are dealing with in your lawsuit. The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V) could be utilized, as it is the standard by which mental disorders are determined within the U.S. It is continuously edited and revised to be the most comprehensive and up to date manual of mental health disorders. It is intended to be used in a clinical setting by health professionals, including: psychiatrists, physicians, psychologists, social workers, nurses, occupational and rehabilitation therapists, and counselors. Alternatively it can be used for research within clinical and community populations and collecting public-health statistics (APA 2016). Certainly, attorneys and judges are not qualified to diagnose others, however, we can recognize and see patterns by educating ourselves on the symptomology presented by different conditions.

The term ‘personality disorder’ is an umbrella term for several disorders that the DSM has divided into three ‘clusters’ based on similar characteristics. Cluster A is characterized as the “odd, eccentric cluster” and is composed of: Paranoid Personality Disorder, Schizoid Personality Disorder, and Schizotypal Personality Disorders (Hoermann 2015). Cluster B is the “dramatic, emotional, erratic” cluster including: Borderline Personality Disorder, Narcissistic Personality Disorder, Histrionic Personality Disorder, & Antisocial Personality Disorder. Such individuals often lack remorse or guilt for their actions. Cluster C is the “anxious, fearful” cluster made up of Avoidant Personality Disorder, Dependent Personalty Disorder, and Obsessive-Compulsive Disorder (Hoermann 2015).

In personal injury litigation, the emotional distress, fright and upset experienced by a Plaintiff related to an accident or event may also be compensable. If that is a component of your Litigation, be ready for questions about that. Mental health provider records may contain entries with certain coding.

Each entry is made up of three components:

1. Diagnostic Classification: “The official list of mental disorders recognized in DSM. Each diagnosis includes a diagnostic code, which is typically used by individual providers, institutions, and agencies for data collecting and billing purposes” (APA para 3). The codes are derived from the International Classification of Diseases, Ninth Edition, clinical Modification (ICD-9-CM), which is a coding system used by all U.S. health care professionals.

Example: 301.7 Antisocial Personality Disorder; 301.81 Narcissistic Personality Disorder; 301.4 Obsessive-Compulsive Personality Disorder; 301.83 Borderline Personality Disorder.

2. Diagnostic Criteria Sets: Is a list of symptoms, how long symptoms must be present, and conditions that must be first ruled out before a diagnosis could be made. These lists are devised to provide diagnostic reliability, but it should be kept in mind that these criteria are for trained professionals only to make a diagnosis (APA 2016) not us!

3. Descriptive Text: This is where the bulk of the information about the disorder is found under the headings of- diagnostic features, associated features supporting diagnosis, sub-types and/or specifiers, prevalence, development & course, risk & prognostic factors, diagnostic measures, functional consequences, culture-related diagnostic issues, gender-related diagnostic issues, differential diagnosis, &/or recording procedures (APA 2016). Within each subheading is the description and details about the disorder, providing the doctors with enough information for a diagnosis to be made.

It is important to keep in mind that if you are dealing with an individual who has the tendency to be unstable, keep your expectations in line with the behavior of the opposing counsel. The psychology and method of doing business of opposing counsel, combined with that of their client, the court, and you and your attorney can affect your Litigation. Above all, keep a level head and be prepared for bumps that may come on the way in Litigation. We anticipate more articles on this topic and as a part of this blog series which we hope will be of benefit to you.

Resources

American Psychiatry Association. (2016). Diagnostic and Statistical Manual of Mental Disorders (DSM). Retrieved from https://www.psychiatry.org/psychiatrists/practice/dsm

Hoermann, Simone. (November 17, 2015). DSM-5: The Ten Personality Disorders: Cluster A. Retrieved from https://www.mentalhelp.net/articles/dsm-5-the-ten-personality-disorders-cluster-a/

Ms. Cinocca is a J.D./M.B.A. not a licensed mental health care professional. This blog series cannot constitute medical advice for which you should seek an appropriate health care professional.