Three Theories of the High-Conflict Legal Case
© 2017 by Bill Eddy
High-conflict cases can be very confusing because it isn’t always clear which party is responsible for it becoming a high-conflict case. High-conflict cases increase the conflict, rather than decrease or resolve the conflict. In reality, it could be either party–or both! It is important to educate people involved in any high-conflict dispute to consider all three of these possibilities:
Theory A: Person B says Person A is acting badly or may be an HCP. And it’s true. The person making allegations is correct: That the other person really is abusive or fraudulent. You have to consider that possibility. There is a lot of abusive and fraudulent behavior in the world today.
Theory B: Person B says Person A is acting badly, but Person B is actually acting badly, not Person A. This is because Person B is “projecting” their own thoughts, feelings, or behavior onto Person A. Person B is acting badly and may be an HCP and Person A is not. Projection or “projective identification” are mental health terms that apply when a person says someone else is thinking something, feeling something or doing something that really describes the speaker rather than the other person. It is the speaker’s own thoughts, feelings or behavior being described, but the person truly does not realize it. This is an unconscious defense mechanism that is associated with mental disturbance and which seems to appear a lot in high-conflict legal disputes.
Theory C: Both Person A and Person B are acting badly. Both may be HCPs. This can be true in high-conflict litigation. Maybe the first person is correct to say the second person is being abusive, ignorant, committing fraud and so forth. But maybe the person saying that is also being abusive, ignorant, committing fraud and so forth. When it comes to a legal case, the “winner-take-all” approach really is inappropriate for handling this problem, because both sides may not deserve to “win.” This is a serious problem in today’s legal system, because people who are acting badly are getting rewarded just because the other person is acting badly and got caught first or looks worse.
On the surface, the facts in all three scenarios are the same. You have to look beneath the surface. It helps to educate legal professionals about these three possibilities, because many have their favorite theories and automatically assume it’s Person A or Person B or both, depending on the nature of the legal work that they do.
If you are presenting your case in court, it may be helpful to explain why your case is one of these and not the other two possibilities. This is especially true in civil courts and family courts when dealing with relationship cases. For example, you might say:
“You Honor, we recognize that most cases of this type have two parties who are both contributing to the conflict. However, in this case, one party is engaged in extreme behavior that needs the court’s strong intervention whereas the other party has been acting very appropriately and is not contributing to the problem but instead is a victim of the other’s extreme behavior. It is very important to recognize that, so that court orders can be implemented that address the real problem in this case.”
This approach can be especially helpful if a judge or other decision-maker seems to have jumped to the conclusion that your case fits his or her favorite theory—and you believe they got it wrong. In that case, you can explain to the court:
“It’s important to consider all three theories and here’s why this case fits a different theory from what has been already presented to the court.”
Then present why it fits your theory and give supporting evidence, as well as why this case doesn’t fit the other two theories. With enough repetition, this can open the door to a more objective view of your case.
Bill Eddy is a lawyer, mediator, therapist, and the President of the High Conflict Institute. He is the author of High Conflict People in Legal Disputes, 2nd Edition (2016). He also provides consulting services regarding high-conflict cases and personalities to individuals and lawyers. High Conflict Institute provides training to professionals in handling high-conflict legal disputes and managing high-conflict workplace situations, as well as online video training (including California MCLEs). www.HighConflictInstitute.com.