Litigiousness, Civil

Sociolegal Context

Litigiousness is a consequence of the way citizens respond to all kinds of daily problems. They wonder if a problem could be translated into legal terms and, if so, if they should take the appropriate legal steps. When a person undertakes legal action, law becomes “mobilized.” Legal mobilization models attempt to explain the decision-making process of the person seeking justice. Frances Zemans described the process as a desire converted into a demand, an assertion of one's rights. The decision to litigate, however, is not an automatic result of a want or a desire. The path to litigation can be thought of as having three stages; at any stage, a party could choose not to invoke litigation for a variety of reasons. William Felstiner and colleagues defined the three stages as naming, blaming, and claiming. First, an injury must be recognized and identified as such. Second, one should attribute blame for the injury to an identifiable entity. Finally, the injured person asks the blamed party to take responsibility for the injury attributed to his or her actions.

When and how litigation occurs depends on the experience of an individual where a legal remedy exists. There are many factors, such as consciousness of legal rights, community norms, socioeconomic status, expectation of success, anticipated costs, and the existence of applicable law and policy that bear upon the decision whether or not to take action. These factors influence the way people respond to a legal problem. As Felstiner's group put it, one can “lump” it, avoid it, or take action. If one decides to take action, one can do it by oneself or by consulting a third party, such as a family member, a friend, or an insurance company. In this stage, people can find a [Page 963]solution or try to settle the dispute. The next step can entail the employment of a lawyer, who will activate a court or a government agency. The decision-making process is not a sequential one. For example, an injured person can decide to go immediately to a lawyer without first consulting with other third parties. At any point in the process, one can consider lumping the procedure or taking further action, even after a negative decision or result. This theoretical framework is a basis for scholars and policy makers to explain and steer the behavior of persons seeking legal solutions for their troubles.

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