‘Litigation can become a weapon of attrition,’ study shows

The study, Justice or Justified Cruelty? Civil Litigation Through the Lens of the Dark Tetrad, has been published in the Journal of Forensic Psychology Research and Practice.

The researchers stressed that the study is not suggesting that lawyers or judges possess the abovementioned traits; rather, it argues that aspects of the adversarial legal system can encourage conduct that would be considered manipulative or harmful in other settings. It examined, Ward said, whether the justice process itself could become a source of harm.

“Most people assume the greatest harm in litigation comes from losing,” she said.

“Our paper asks a harder question: what if the process itself is doing the damage?”

Lengthy delays, escalating legal costs, repeated retelling of traumatic events and strategic legal tactics were all found to wear people down long before a case reaches a conclusion.

“Litigation can become a weapon of attrition,” Ward said.

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“Delays, escalating costs, repeated retelling of trauma, and strategic pressure can exhaust people financially and psychologically before a dispute is resolved.”

Such experience, the researchers noted, can lead to anxiety, insomnia, hypervigilance, loss of trust in institutions and other trauma-related impacts, and people who show signs of trauma in court, such as crying, distress, or fragmented recall, may be unfairly viewed as unreliable.

The published paper advocates for increased trauma-informed legal practices, better case management, and reforms to reduce unnecessary distress during legal proceedings.

“Sometimes, the objective is not simply to win,” Ward said.

“The litigation itself becomes the weapon: a legally sanctioned way to consume another person’s money, time, emotional energy and sense of safety.”

Professor John Croucher said: “Our research highlights the need to include psychological safety when ensuring procedural fairness.”

“Legal processes must be trauma-informed and culturally accountable, and they must not treat emotional conformity as a measure of credibility.”

In conversation with Lawyers Weekly, Ward and Croucher reflected on what leaders of litigation teams can and must do to better support workers’ needs.

“Partners need to lead by example and ensure that the map matches the ground. A firm cannot promote wellbeing while rewarding 12-hour days, skipped meals and constant availability. Leaders should recognise vicarious trauma as an occupational risk, particularly in matters involving homicide, sexual violence, domestic violence, child abuse and other confronting evidence,” Ward said.

“Regular check-ins, structured debriefing, peer consultation, protected breaks and confidential trauma-informed support should be routine, not offered only after someone is already unwell. Most importantly, team members must be able to say, ‘This is affecting me’, without fearing that honesty will be interpreted as weakness.”

Croucher noted, based on nearly one decade of research in this field, that litigation team leaders should treat staff wellbeing as a core management responsibility, rather than simply an issue of individual resilience.

“Workloads, hours, leave and exposure to particularly distressing material should be monitored, and managers should be trained to recognise early signs of burnout, secondary traumatic stress and moral injury. Practical measures – including reasonable deadlines, flexible work, genuine time away from files and accessible professional support – benefit both the individual and the quality of the legal work,” he said.

When asked what the courts can do, if anything, to ease some of the burdens on litigators, notwithstanding the myriad pressures that courts face for efficient justice, Ward responded that efficiency and justice are related, but they are not synonymous.

“A process can move quickly and still be unfair or proceed slowly for reasons that add no evidentiary value. Courts can reduce burdens by minimising avoidable adjournments, discouraging late document dumps and surprise tactics, providing clearer timelines, and normalising remote appearances, structured breaks, support persons and trauma-informed cross-examination where appropriate,” she said.

“These measures do not weaken adversarial testing. By reducing unnecessary stress and cognitive overload, they may improve participation, memory and the quality of evidence. As we argue in the paper, procedural fairness must include psychological safety.”

Moreover, Croucher said, the justice system should examine its performance through data, rather than relying only on tradition or intuition.

“Measures of efficiency should include not merely the number and speed of matters finalised, but the effects of delay, repeated hearings and procedural complexity on litigants, practitioners, jurors and court staff,” he said.

“Better scheduling, early identification of unnecessarily protracted disputes and consistent use of appropriate technology could reduce cost and uncertainty while preserving judicial independence and evidentiary standards. Efficient justice should mean an accurate and sustainable process, not simply a faster one.”