Civil Justice and Healing: Therapeutic Benefits and Risks of a Lawsuit for Trauma Survivors

When a client who was harmed in a troubled-teen program or other institution starts thinking about a lawsuit, the question underneath is often not legal at all. It is: will this help me, or will it make things worse?

The honest answer is that it depends. A civil case can bring acknowledgment, a sense of agency, and sometimes accountability. It can also bring delay, intrusive questioning, and long stretches of feeling stuck. Research supports both sides of that picture.

This article is for California mental health professionals, including LMFTs, LCSWs, LPCCs and psychologists. It summarizes what the literature says about the therapeutic effects of legal processes, and how a clinician can help a client weigh them. It is written by a lawyer, so it reflects a lawyer's reading of that research. Your clinical judgment about your client comes first.

A useful frame: therapeutic jurisprudence

Therapeutic jurisprudence is a field of legal scholarship, associated with David Wexler and Bruce Winick, that looks at law as a potential therapeutic agent. Legal rules, procedures and the conduct of lawyers can have helpful or harmful effects on the people involved. Scholars in the field stress that therapeutic goals do not override fairness or due process. The point is to notice those effects and reduce harm where possible.

That frame fits a civil case well. The same process that gives a survivor a voice can also put them through hours of questioning by the other side.

Potential benefits

Validation and acknowledgment

In a qualitative study of 22 survivors of sexual and domestic violence, Judith Herman found that what participants most wanted from justice was validation: acknowledgment of the facts and of the harm, including from the community and bystanders, not only from the offender. Participants also described wanting vindication, meaning a clear statement that the wrong belonged to the offender, not to them.

For many, money mattered less as private compensation than as a public sign of responsibility. That matches what many lawyers hear from survivors: the case is about being believed.

Voice and fair process

Procedural justice research, much of it by Tom Tyler, looks at how people judge legal processes. In a study of citizens' experiences with police and courts, Tyler found that the perceived fairness of the procedure had a major influence on satisfaction and on how people evaluated legal authorities. Later work describes two core dimensions: fair decision-making (including voice and neutrality) and fair interpersonal treatment (including trust and respect).

For a survivor whose experience in a program was defined by having no voice, being heard in a structured process can matter in its own right.

Agency and a sense of contribution

Herman's 2003 review of crime victims' mental health noted possible benefits of legal participation, including greater safety, a sense of contributing to the protection of others, public acknowledgment of suffering, restitution, and possibly an apology. Survivors of institutional abuse often say they want the institution to stop doing to others what it did to them.

Mixed experiences in civil claims for abuse

A Canadian study by Feldthusen, Hankivsky and Greaves interviewed 87 survivors of sexual abuse who had pursued compensation through civil actions, a criminal injuries compensation board, or a negotiated compensation program. Most respondents valued healing well above financial recovery, and many reported significant therapeutic effects, some helpful and some harmful. Participants described the role of family members, therapists, lawyers and judges, and the effects of delay.

That last point is worth sitting with. The people around the survivor, including the therapist and the lawyer, shape the experience.

Potential risks

Re-traumatization through the legal process

Herman's 2003 review also found that the adversarial legal process can undermine a victim's credibility, control and sense of safety, and that clinicians often report symptoms worsening after negative contact with the justice system. Her review focused on criminal cases, but the stressors she describes, such as questioning by the other side and loss of control over timing, also appear in civil cases.

Campbell and Raja surveyed mental health professionals who treat survivors of violence. Most believed that some community professionals act in ways that harm survivors' psychological well-being, a pattern the literature calls secondary victimization.

"Critogenic" harm

Psychiatrists Thomas Gutheil, Harold Bursztajn, Archie Brodsky and Larry Strasburger coined the term "critogenic" for emotional harm caused by the legal process itself, by analogy to iatrogenic harm in medicine. They describe harm that can happen even when the system works as designed. The stressors they name include:

• Delay, with cycles of hope and disappointment.
• Adversarialization, which can strain relationships the litigant still values.
• Retraumatization, as interviews, depositions and testimony require the person to relive the injury.
• Loss of privacy through discovery.
• Arrested healing, when the case keeps the wound open.

Specific stress points in a civil case

In a California civil case, a survivor who claims emotional injury can expect some or all of these:

• Written discovery, where the defense asks detailed questions about history, treatment and relationships.
• A deposition, where defense counsel asks questions under oath, often for hours.
• A mental examination by a retained evaluator chosen by the defense, sometimes called an IME. In California, a mental examination generally requires leave of court.
• Records requests, which may reach therapy records if the client's mental or emotional condition is at issue.
• Cross-examination, if the case goes to trial.
• Delay, sometimes over years, with dates that move.

Compensation processes and recovery

A meta-analysis by Elbers and colleagues pooled ten prospective studies of people involved in compensation processes after traffic accidents, workplace accidents or medical errors. People in compensation processes reported worse mental health at baseline and improved less over time than comparison groups. The authors cautioned that the evidence quality was limited, that much of the difference existed before follow-up, and that the causes were uncertain. The study did not involve abuse survivors, but it is a fair reminder that a claim is not a treatment.

Who tends to do better?

No study can predict how a particular client will experience a case. The research does point to factors worth exploring together:

• Clear goals. A client who knows what they want from the process, and what a case can and cannot deliver, may be less vulnerable to disappointment.
• Support. Campbell found that rape survivors who worked with an advocate reported less distress after contact with the legal system. Consistent support, including therapy, may matter.
• Informed expectations. Gutheil and colleagues recommend that lawyers prepare clients for the emotional costs and benefits of litigation, not only the procedure, in something like informed consent.
• Timing. Some clients are ready now. Some are not. Some deadlines cannot wait, which is one reason an early consult is useful even if the client decides not to file.

The clinician's role: support the client's own choice

You do not have to decide whether a lawsuit is good for your client. Your role is to help the client think it through and to keep supporting them whatever they decide.

The CAMFT Code of Ethics directs therapists to respect clients' right to make their own decisions and to help them understand the consequences of their choices (Standard 1.9). The APA Ethics Code's General Principle E recognizes the right to self-determination.

Practical ways to apply that:

• Ask what the client hopes a case would give them, and what they fear it might take.
• Help the client separate the legal question ("Do I have options?") from the personal one ("Do I want to use them?").
• Revisit the decision as circumstances change. A client can consult a lawyer and decide later.
• If the client proceeds, plan together for the hardest milestones. The companion article, Therapist and Attorney: Working Together to Support a Client Through a Civil Case, covers that in detail.

For a Utah-focused version of the referral conversation, see the Utah therapist referral guide.

FAQ

Should I tell my client that suing will help them heal?

No. The research is mixed. A case helps some people and harms others. Offer information and support, and let the client decide.

Can a client stop a case once it starts?

Under California Rule of Professional Conduct 1.2(a), a lawyer must abide by the client's decisions about the objectives of the representation, including whether to settle. What it means to end or pause a case at a given stage is a question for the client's lawyer.

Will my client have to see the people who harmed them?

Possibly, at a deposition or trial, though many cases resolve before trial. The client's lawyer can explain what to expect and what options exist to reduce contact.

Does the defense get to examine my client?

Possibly. In a California case, a party who wants a mental examination generally must obtain leave of court under Code of Civil Procedure section 2032.310, and the request must spell out the scope and conditions. The client's lawyer can explain what applies in their case.

How can I help if my client is unsure?

Help them name what they want and what they fear. A confidential consult can answer factual and legal questions without committing them to anything.

Next step

With the client's consent, they can start a confidential case review at pchinjurylaw.com or call (310) 299-9PCH. Frank Stucki, Esq., MBA welcomes calls from clinicians with general questions about the process (without client identifiers). No referral fees are paid.

Frank Stucki, Esq., MBA is licensed in California, Nevada, Washington and Utah; cases in other states are handled with local co-counsel licensed there.

This article is general information, not legal advice. Reading it does not create an attorney-client relationship. Attorney Advertising.

Sources

• Herman, J. L. (2003). The mental health of crime victims: Impact of legal intervention. Journal of Traumatic Stress, 16(2), 159-166. https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=199616
• Herman, J. L. (2005). Justice from the victim's perspective. Violence Against Women, 11(5), 571-602. https://ojp.gov/ncjrs/virtual-library/abstracts/justice-victims-perspective
• Tyler, T. R. (1988). What is procedural justice? Criteria used by citizens to assess the fairness of legal procedures. Law & Society Review. https://www.aboutrsi.org/library/what-is-procedural-justice-criteria-used-by-citizens-to-assess-the-fairness-of-legal-procedures
• Tyler, T. R., & Mentovich, A. Mechanisms of legal effect: Procedural justice theory. https://phlr.temple.edu/learn-legal-epidemiology/theory-methods-literature/mechanisms-legal-effect-procedural-justice-theory
• Perlin, M. L. (2012). Justice's beautiful face: Bob Sadoff and the redemptive promise of therapeutic jurisprudence. Journal of Psychiatry & Law, 40(2), 265-292. https://digitalcommons.nyls.edu/facarticleschapters/1101
• Feldthusen, B., Hankivsky, O., & Greaves, L. (2000). Therapeutic consequences of civil actions for damages and compensation claims by victims of sexual abuse. Canadian Journal of Women and the Law, 12(1), 66-116. https://collectie.atria.nl/en/library-archive/item/348293-therapeutic-consequences-of-civil-actions-for-damages-and-compensation-claims-by-victims-of-sexual-abuse
• Campbell, R., & Raja, S. (1999). Secondary victimization of rape victims: Insights from mental health professionals who treat survivors of violence. Violence and Victims, 14(3), 261-275. https://ojp.gov/ncjrs/virtual-library/abstracts/secondary-victimization-rape-victims-insights-mental-health
• Campbell, R. (2006). Rape survivors' experiences with the legal and medical systems: Do rape victim advocates make a difference? Violence Against Women, 12(1), 30-45. https://journals.sagepub.com/doi/abs/10.1177/1077801205277539
• Gutheil, T. G., Bursztajn, H. J., Brodsky, A., & Strasburger, L. H. Preventing "critogenic" harms: Minimizing emotional injury from civil litigation. https://www.forensic-psych.com/articles/artPreventingCritogenicHarms.php
• Elbers, N. A., Hulst, J. E., Cuijpers, P., Akkermans, A. J., & Bruinvels, D. J. (2013). Do compensation processes impair mental health? A meta-analysis. Injury, 44(5), 674-683. https://research.vu.nl/en/publications/do-compensation-processes-impair-mental-health-a-meta-analysis-in/
• https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CCP&sectionNum=2032.310
• https://www.calbar.ca.gov/sites/default/files/portals/0/documents/rules/Rules-of-Professional-Conduct-1.pdf
• https://www.camft.org/ethicscode
• https://www.apa.org/ethics/code
• https://slcsurvivorlaw.com/resources/therapist-referral-guide-utah-trauma-legal-consult