The Vexatious Litigant

Risk Assessment and Case Management Issues

 Stephen White, Ph.D.
Fall 2011 Newsletter

 “The company has refused to address my appeals and is hiding behind lies of eliminating my job due to a reorganization.  This is patently false and I will show that the CEO himself is behind this conspiracy to silence me and trample on the rights of suffering employees.  SOMEONE MUST CHAMPION THEIR CAUSE.  LET IT BE ME!  When the time is right I will reveal all the names of those behind this criminal conduct.  Heads will roll in high places!!!”

       … From our case files

Everyone has a right to his or her complaints being properly investigated.  A difficult scenario facing threat management teams and legal departments is the long-term, obsessively invested “querulous vexatious litigant.”  These individuals raise concerns about violence risk given their fixation, demands to be recognized, and increasingly grandiose list of complaints and accompanying insults.  On rare occasions these cases can indeed eventuate in violence committed against the grievant’s perceived persecutors and other “obstructionists.”  The angry, overtly paranoid or delusional litigant poses monitoring and security issues over an extended period of time.

We frequently consult on these cases to private or public organizations or academia, involving subjects who come to attention due to their communicated threats, bizarre presentations, or increasing agitation and desperation.  Even in cases that do not appear to pose a risk, it is important to understand the mentality and course of the puzzling and troubling vexatious litigant, as well as some case management principles.

A typical scenario

Anyone in the professions concerned with dispute resolution will eventually encounter the claimant – rigid and suspicious but perhaps initially ingratiating – who often appears with many documents, pleading or demanding that they be read.  On inspection the arguments are poorly constructed and often confusing and rambling.  Excessive highlighting and underlining are common, as well as many attachments, often of no relevance to the case or touting broad principles of human rights.  They may utterly deny obvious undisputed facts known to others.  Although they certainly may engage in conscious lying, fundamentally it is more the case of a passionate belief in the truth of their perceptions.  Personal blogs, chat room dialogue reinforcing their perceptions, and other internet activity will accompany their quest.  How to communicate effectively with helpers and agency representatives eludes them, although some can be quite cordial with a select few as part of their strategy.  Usually those engaged with them very quickly have their competence challenged and their patience sorely tried.  Some litigants may appear at corporate or legal offices, dramatically presenting their self-authored “briefs” to receptionists or support staff – a very disturbing or frightening occurrence for an office.

According to Australian psychiatrists Paul Mullen and Grant Lester and their associates, querulous describes “a pattern of behavior involving the unusually persistent pursuit of a personal grievance in a manner seriously damaging to the individual’s economic, social, and personal interests, and disruptive to the functioning of the courts and/or other agencies attempting to resolve the claims.”

The querulous litigant is different than simply a difficult complainant

Querulousness falls along a continuum, and is not generally considered to include “difficult complainants,” those campaigning for social reform, or most whistle blowers seeking to uncover real or perceived corruption, however mistrustful and disruptive such individuals or groups may be.  These subjects generally remain within normal legal structures, have a reasonably legitimate or at least understandable social agenda (such as economic reform), and/or ultimately accept some settlement.

Querulous behavior, according to Mullen and Lester, involves a  “totally disproportionate investment of time and resources in grievances that grow steadily from the mundane to the grandiose.”  Resolutions not only require “an apology, reparation, and/or compensation but retribution and personal vindication” – objectives beyond what courts can bestow.  As Western society and organizations have expanded the opportunities and avenues for individuals to present or appeal grievances and pursue justice, a side effect may be the enabling of abuse.  In our experience these individuals often reveal grand fantasies of their ultimate vindication unveiled dramatically at the highest judicial levels, accompanied by criminal punishment and public humiliation of their wrong doers.  It can start with a relatively minor issue.  Being bypassed for a promotion can eventually lead to a bizarre, life-engrossing campaign to uncover and bring down “global conspiracies.”

In meetings the querulous may insist on taking notes or recording the session.  Such individuals do not collaborate well with others, and will dismiss lawyers, union representatives, and other helpers.   They may even call for the disbarring of attorneys and the dismissal or prosecution of other officials.  In the courtroom they may make unruly remarks to the judge, inviting sanctions.  Some may show a keen awareness of the lines not to cross so as to avoid contempt charges or jail terms.  If an individual is declared a vexatious litigant by the courts, due to their accumulated frivolous lawsuits, they can be prohibited from filing further actions unless granted permission.

In the workplace or in academia these individuals will exhaust internal appeals processes, and are often eventually terminated for poor performance or misconduct, or denied tenure.  They are typically very suspicious of the option to resign or benevolent severance offerings designed to preserve their dignity and provide transitional support.  To accept them would be an act of weakness and a further humiliation.  (It is true that some paranoids, usually in the midst of a dispute with their employer, will resign, as a way to reduce their anxiety and perhaps with the belief or hope that “conspirators” will not follow them to a new job.)

Mullen and Lester also denote a subgroup termed “unusually persistent petitioners,” who pursue their quest with voluminous petitions for help from prominent public figures.  These individuals, who are usually more psychotic, regard standard response letters from politicians as evidence of support.  Attacks on public figures are rare but possible.

The root cause of querulous behavior

Querulous behavior is likely rooted in a mental disorder, especially where paranoia and delusional phenomena contribute.  In practice, without the benefit of a direct assessment, diagnostic distinctions are often difficult to make.  In our case experience paranoia and delusions are common and readily evident, and especially relevant to assessing risk.  Paranoia can range from vague feelings of being persecuted in the absence of any facts that support such perceptions, to a highly developed, organized, and fantastic set of beliefs that are clearly delusional.  A delusion is a firmly held belief lacking any basis in fact, uninfluenced by objective evidence or rational argument, and contrary to an individual’s educational or cultural background.

Many of these individuals are otherwise functional.  A good number have families and at least some friends, jobs and careers, and may even be technically talented.  However, the felt insult from their real or perceived grievance stimulates and reveals their underlying hypersensitivity and vulnerability, leading them to become completely consumed in a self-destructive quest for vindication.  Professional colleagues may be astonished and feel understandably betrayed to learn of accusations that they have violated policy or laws, or that their research is “fraudulent.”  With querulants there is frequently a history of losses and accumulated setbacks.  Often they have never felt truly appreciated, their disgruntlement amplified by a self-righteous and self-important narcissistic outlook.  A depressed mode may be in the mix, although their adamant and aggressive style may mask it.  Their requests move to demands, from there to recriminations, and then possibly to threats to harm others: “If I go down, the firm is going with me.”

How do we assess and monitor for violence risk in these scenarios?

The risk factors incorporated within the WAVR-21 (Workplace Assessment of Violence Risk) tap the domain of interest in assessing most instances of querulous behavior.  Whether or not the subject is or was an employee, the crux is fixation on individuals or symbolic targets within a workplace, including agencies or the courts.  We then look for a certain build-up of “perfect storm” ingredients:

  • An intractable and unflinching belief in the rightness of their issue, with a desperate need for “total victory.”  This position leaves the subject psychologically trapped if their definition of “justice” is not bestowed on him or her.  The ultimate denial of their claim, appeals or official attention paid to them is the potential “triggering event” and humiliating loss that we always look for in threat cases.
  • The withdrawal or end of key family support or at least tolerance during a prolonged campaign.
  • The exhaustion of financial resources that allow survival and stability during a legal quest, in some cases related to the end of spousal support.  Their destitute state adds stress to the spiral of loss and can contribute to a depressed, angry mood.
  • Failure to move on to future employment.  They are extremely attached to the “mission” versus a paying job.  Our current recession does not help, as some may initially try for re-employment, are unsuccessful, and then refocus on a previous employer or its legal representatives.
  • Very critical is the paranoid or delusional perception of malevolence by adversaries with the possibility of an accompanying decision to carry out a preemptive attack against perceived conspirators and others who have failed the subject.  The motives, which can be complex and changeable, may be to either punish adversaries or protect oneself from physical harm.  Clinical assessment specialists will look for relevant diagnostic categories where paranoia or paranoid tendencies are common or predominant: delusional disorder persecutory type (the presence of non-bizarre delusions, i.e., events that could actually occur in real life, such as being followed, poisoned, betrayed, or having one’s computer hacked), paranoid personality disorder (excessive sensitivity and suspiciousness, tendency to bear grudges, and a combative sense of personal rights), paranoid schizophrenia, and in some instances the manic phase of bipolar disorder.
  • A strong sense of entitlement, usually as a reflection of narcissistic traits or personality disorder.  The combination with paranoid or delusional beliefs fuels the risk.
  • Beyond actual threats to harm, any communication stating or implying that “violence is justified.”  Threats may be directly communicated to a target, or more often “leaked” to a third party.  Hopefully these are detected and reported.  There may be allusions to others who have attacked court or other officials or executives, i.e., identification with previous perpetrators.
  • In certain instances, health-related losses and life changing injuries that lead to a damaged personal identity, lowered self-esteem, and a sense of hopelessness.  Some cases originate with workers compensation disputes.
  • Other evidence of behaviors indicative of a “pathway to violence”: weapons capacity, acquisition, or increased practice; probing for access to targets; final acts such as otherwise unexplainable expressions of  “good-bye.”
  • The static factor of a history of violence and criminality.

An advantage of legal or litigious campaigns is the subject’s frequent written communications and documents that can serve as a window into his or her thinking, goals, and intent.  Increasing desperation can be sensed and triggering events anticipated.  At times it is very difficult to identify an individual posing an increasing risk, due to the querulant’s pattern of emotional outbursts and frequent use of dire-sounding language and ultimatums.  Careful study of his behavioral patterns over time, as well as watching for mounting personal stressors, can help make these distinctions more accurately.

Case management strategies

A case involving a vexatious employee litigant is first of all a legal matter, to be resolved through the organization’s usual protocols for addressing and resolving internal complaints.  Threat assessment will run parallel to these processes and will inform and influence the actions the organization takes in managing the complainant or litigant.   As always, “safety first.”  (A case could also involve a former employee or an outsider, perhaps a customer, patient, or plaintiff now fixated on the organization or its representatives).

An employer typically will be able to easily identify the querulous litigant through the traits and behaviors described above, such as the employee’s self-created voluminous “documentation” and feedback received from managers or HR personnel who have attempted to manage the employee.  These managers will often complain, “He just won’t listen to reason and now wants me off the investigation.  He’s accusing people who have had nothing to do with his case!”

Once identified, the organization will benefit from keeping the following case management strategies in mind:

  • Those involved in defending claims by the querulous employee need to be briefed about the nature of querulousness and cautioned to resist becoming emotionally hooked and to avoid any form of disrespectful or demeaning response to the individual.  These cases are not for beginners.
  • When querulous tendencies are detected employers should be especially careful with their due diligence since any factual error or procedural misstep will justify suspiciousness and fuel outrage.
  • Professionalism at all times should be stressed.  Those communicating with the employee about his or her complaints should make statements such as, “My evidence does not support your allegations, but I respect your point of view and understand this is very important to you.”  Attempts to dissuade the querulous employee by pointing out the limits of what can be achieved through litigation may help, but often does not.
  • Viable face saving exits should be offered where possible, but again, nothing short of millions of dollars in “damages” and public declarations of institutional wrongdoing may suffice to appease the employee.
  • Ongoing threat assessment and appropriate monitoring is reassuring to case handlers.  However, direct face-to-face risk assessments by clinicians can increase the probability that the subject will then expand his claim to include discrimination.  In addition former employees are not compelled to cooperate with the process.  Notwithstanding these obstacles, the employer should always take the querulant’s threats seriously.  Depending on the circumstances of a given case, he should be confronted by well-prepared case managers and/or security or law enforcement officials.  Threatening communications and gestures may be just another way for the subject to keep attention focused on his plight, but that must be determined.
  • In-person proceedings, such as depositions and hearings ­– normally tense – are hot points.  The subject often represents himself pro per either by choice or because no reasonably minded attorney cares to defend him.  A querulant will likely relish the occasion to attack deponents’ testimony and otherwise push the boundaries of proper conduct.  They may commence in a fairly organized fashion, to then unravel and ramble on, or regress to a personal verbal attack.  This causes fear, and the risk for assault or violence may not be zero.  The presence of security professionals should be considered, and with no apologies to the subject because “reasonable people are concerned and we routinely take safety precautions.”  Limit setting in general is always appropriate to counter the querulant’s sense of entitlement.
  • Individuals prone to paranoia or delusions may decompensate, especially under high stress, and become acutely psychotic, agitated, and threatening.  This should lead to immediate measures to detain or hospitalize them involuntarily, or if this cannot be affected, to harden any targets and take other security measures.

Can querulants benefit from treatment?

By nature vexatious litigants do not typically seek treatment, due to their mistrust and fixed belief that the problem does not dwell within.  One exception is seeking treatment to justify or prove “emotional injury” but with no serious intent to use therapeutic help to overcome their symptoms.  Employers may also remind stressed grievants of the availability of employee assistance services (EAP) or other mental health resources.  To otherwise require treatment or frame the issue as a “fitness for duty” scenario is usually fraught with legal minefields, and in our experience offers little strategic case management advantage.

Querulous-related paranoid behaviors most readily treatable with anti-psychotic medications are paranoid schizophrenia and bipolar disorder.  However, in our experience the most common disorders related to strident querulousness are paranoid personality disorder and persecutory delusional disorder.  Individuals with either of these disorders are known as reluctant help-seekers if not outright rejecters of it.  Professional opinion has traditionally been that delusional disorders rarely respond to medication.  However, more recent evidence suggests that delusions can be successfully treated approximately 50% of the time with what are known as second-generation anti-psychotic medications.  Providers will empirically test which medication will help a particular patient, if the opportunity affords itself.  The larger problem is the inherent resistance to treatment.  Mullen and Lester note that atypical antipsychotics may be helpful in their treatment setting of mostly court-referred patients.  Unfortunately, the response is slow and improvement may take months to be evident.  Maintaining a therapeutic alliance is extremely challenging.  Providers need to avoid getting drawn into the right-versus-wrong of the patient’s claim.  The focus instead should be on the cost to one’s family and finances in continuing the pursuit.

If a vexatious litigant is convicted of a crime, such as for violence, threats or criminal stalking – due to a major mental disorder – he or she could eventually be entered into a mental or behavioral health court.  These courts combine judicial supervision with community mental health treatment where appropriate, and are intended to reduce recidivism and increase public safety.   Sentencing would depend on the seriousness of the crime and the subject’s history of previous convictions.  In more serious criminal cases, psychotic individuals may be evaluated in forensic or prison settings and possibly deemed unable to understand the charges against them or incapable of assisting counsel in their defense.

In conclusion, the querulous vexatious litigant is highly challenging for those managers who encounter these individuals, and for their threat assessment teams and professionals who become engaged with them.  The risk factors for violence can be identified and assessed, using the WAVR-21 or another structured professional guide or format.  Perhaps the biggest challenge is adequate but non-intrusive monitoring for “red flag” changes over what is frequently an extended period of time.  Enlisting case handlers and other stakeholders in this endeavor, as well as providing them coaching, is important in assuring safer outcomes and an anxiety-reducing process.

A final quote by Mullen and Lester is apropos in understanding the stakes for a querulent individual: “They are like gamblers with no way out of the devastation they have wrought but through a really big win.”  Watch for occasions when the dice are about to be rolled.

References

Manschreck, T.C., & Khan, N.L. (2006). Recent advances in the treatment of delusional disorder. Canadian Journal of Psychiatry, 51: 114–119.

McManus, F.B. (2008). The psychiatry of unusually persistent litigants.  Litigant in Person. Retrieved November 10, 2011 from http://litigant.blogspot.com/2008/03/psychiatry-of-unusually-persistent.html.

Mullen, P. E., & Lester, G. (2006). Vexatious litigants and unusually persistent complainants and petitioners: From querulous paranoia to querulous behavior. Behavioral Sciences and the Law, 24: 333-349.

Smith, D.A., & Buckley, P.F. (2006).  Pharmacotherapy of delusional disorders in the context of offending and the potential for compulsory treatment. Behavioral Sciences and the Law, 24: 351-367.