In reviewing the existing literature and empirical research on the fear of litigation by police officers, it becomes quickly evident that this topic is still in its infancy. In fact, only one study prior to 1995 had examined how law enforcement officer candidates perceived the fear of litigation (Scogin and Brodsky 1991). In order to examine how fear of litigation impacts law enforcement, it is first necessary to gain an understanding of how this concept developed. The concern about litigation can be traced predominantly to the health professions, primarily physicians. As Brodsky (1988) noted, the fear of litigation has moved from a background issue of mild concern to a prominent topic of considerable concern in health professions. He concluded that it is not only the reality of a lawsuit but the possibility of malpractice or serious litigation that are sources of marked anxiety.
Brodsky (1983) utilized a case report on health professionals to describe the irrational and excessive fear of litigation, which he labeled “litigaphobia,” defined as an excessive avoidance of legal actions prompted by irrational fear. Breslin, Taylor, and Brodsky (1986) went on to develop a psychometrically sound instrument that permitted measurement of the phenomenon of litigaphobia. They also suggested that the plethora of litigation is not restricted to physicians and that society as a whole is showing a rise in litigation as a means of solving interpersonal and societal difficulties.
Other studies have examined litigaphobia with other professionals, namely psychologists. Wilbert and Fulero (1988) surveyed practicing psychologists in Ohio and found two factors to be positively correlated with their degree of concern: the number of hours per week of clinical service and the number of hours per week of supervision. Overall, they concluded that there was no epidemic of litigaphobia. Brodsky and Schumacher (1990) estimated at least a 5% to 10% incidence of litiga-phobia among practicing psychologists. Because labels such as “litigaphobia” suggest pathological responses, it was important to examine whether the fears are rational responses to genuine, immediate threats or whether they are irrational and excessive reactions to rare events. Since no research has been able to distinguish between the rationality and irrationality of these behaviors, the term “fear of litigation” is now used because it is free of psychopathological labeling (Brodsky 1988).
As has been noted, this fear of litigation is certainly not limited to health professionals. For instance, a commonality that is increasingly evident between policing and other professions is the threat of lawsuits. To examine the fear of litigation among law enforcement officers, Scogin and Brodsky (1991) assessed 101 trainees in a regional law enforcement academy, focusing on how much officers worry about being sued, what they do to prevent suits, and to what extent such concerns become excessive. They addressed such areas using a five-item questionnaire they developed.
Their results indicated that officers reported worrying moderately about work-related lawsuits. Sixty-nine percent reported taking specific actions to prevent lawsuits. The subjects reported moderate to severe distress when hearing of another officer being sued. The majority of officers indicated that they do not think their fears of litigation are irrational and excessive. In fact, only 9% indicated that they felt their fears of litigation were irrational and excessive. However, based on their responses to open-ended questions, the authors believe this rate to be higher. In response to open-ended questions such as asking which specific situations they fear might lead to lawsuits, subjects indicated several: shootings, auto accidents, improper arrest, and excessive force. When asked about the irrationality of their fear of litigation, most responses indicated that participants view lawsuits as an inevitable and practically unavoidable consequence of the job. Hence, their fears and concerns appear quite rational from this perspective.
However, in a study of the fear of litigation in college students and citizens in general, Brodsky and Gianesello (1992) found that almost 80% of the general public felt that too many lawsuits were being filed in the United States. They concluded that this feeling may be self-perpetuating; that is, the perception that increasing numbers of people are involved in litigation gives rise to the belief that lawsuits are an inevitable fact of life, which may result in feelings of vulnerability. This vulnerability may serve as a form of self-justification for suing others. Indeed, it seems that the law enforcement trainees exhibited such vulnerability since they felt that fear of litigation was an unavoidable consequence of their jobs (Brodsky and Gianesello 1992; Scogin and Brodsky 1991).
This idea that law enforcement officers’ increased feelings of vulnerability may serve as a form of self-justification for suing others moves the fear of litigation from outside the department into it. The police department administration itself may have cause for a unique fear of litigation, which is intradepartmental. Indeed, Bale (1990) has examined stress litigation stemming from police work.
He looked at the connection among work, stress, and emotional distress and their role in extensive litigation in the workers’ compensation system. Terry (1985) reported that police work has been viewed as either the most stressful or among the most stressful of all occupations and that perceived stresses and strains of police work are thought to cause certain physiological ailments among police officers, as well as the presence of high divorce and suicide rates. Likewise, Bale (1990, 413) stated:
Police officers perform stressful and dangerous work that is highly visible to the public, both in the community and in its many media representations. Police officers are often covered by disability schemes that allow them generous presumptions of compensability for heart attacks. These provisions, reflecting a widely held view, expressed by some courts, that police work is inherently more stressful than most occupations, can directly aid police officers bringing claims that work stress helped induce other medical conditions, such as a peptic ulcer or a mental illness.
Bale (1990) goes on to state numerous cases in which police officers have been successful in workers’ compensation claims that involved stress on the job. Some of the cited litigation addresses claims concerning harassment and abuse of authority; physical intimidation and other forms of threat; adverse personnel decisions; excessive demands; whistle-blowing; and internal investigations into alleged illegal activity. As Bale (1990) notes, a growing set of legal remedies is transforming distressing workplace situations into forms of money, medical care, and justice.
This growing area of stress litigation within law enforcement suggests that future studies on the fear of litigation in police officers need also to address the differences between the fears of officers who are in contact with the public and those of officers involved in administrative and organizational tasks. Furthermore, it may be useful to examine whether officers who feel that fear of litigation is an unavoidable consequence of their job indeed feel more vulnerable. If so, would they then feel more justified in bringing a stress-related lawsuit against their own department?
Although this concept of police fear of litigation is relatively abstract at present, numerous implications from the limited available research are relevant. First, Scogin and Brodsky (1991) suggested that preservice and in-service training on liability and the process of litigation is highly desirable. They also concluded that the impact of the concerns about litigation on work and personal functioning is not known. They proposed that fear of litigation may be adaptive in that it discourages questionable activities. On the other hand, it might be detrimental in that officers may become overly conservative and engage in avoidant law enforcement behavior. Their recommendation for further research was to contrast the litigation fears of veteran officers, as well as those who have undergone litigation preservice and in-service training, to recruits or those who have not received such training.
Scogin and Brodsky (1991) also commented that because law enforcement is inherently stressful, moderate levels of worry about lawsuits adds to the emotional wear and tear of the job. This point of view directly ties into the question about the self-perpetuating concept of the fear of litigation in police officers. Is there some point at which the stress induced by fear of litigation from outside the department becomes a contributor to increased stress litigation within the department? To better answer this question, future research should examine this issue to more fully understand the entire range of effects of fear of litigation in police officers.