The Indignities of Civil Litigation

Abstract

Dispute resolution has become increasingly shrouded in secrecy, with the proliferation of protective orders in discovery, confidential settlement agreements, and private arbitration. While many civil procedure scholars have criticized this trend for undermining the systemic benefits of public adjudication, the desirability of secrecy in civil litigation proves to be a much more complicated question.

On the one hand, some of those same scholars have recently sought to justify civil litigation in terms that, ironically, highlight the benefits of secrecy. Although this new justification remains somewhat inchoate, it is best understood as a claim that the procedures of civil litigation allow individual plaintiffs to realize one aspect of their dignity — which this Article labels “dignity-as-status” — by empowering them to call those who have allegedly wronged them to account and to thereby reassert their standing as equals. The problem is that civil litigation can also undermine another aspect of plaintiffs’ dignity — which this Article labels “dignity-as-image” — by requiring them to divulge sensitive personal information and thus to cede control over their public self-presentation. Secrecy can help to preserve this second aspect of plaintiffs’ dignity.

On the other hand, secrecy can also deprive plaintiffs of a potentially powerful expressive weapon in their quest to hold wrongdoers accountable. In conditions of socioeconomic inequality, weaker plaintiffs can sometimes turn the humiliating aspects of civil litigation to their advantage, intentionally revealing sensitive personal information that emphasizes their lower social status in order to shame their more powerful adversaries. It turns out that civil litigation can indeed promote plaintiffs’ dignity-as-status, but by affording them a venue in which to deliberately compromise their dignity-as-image — to humiliate, as much as ennoble, themselves.

Given the complex nature of dignity and the complex trade-off between secrecy’s dignitarian benefits and costs, plaintiffs should be given more control over how much of their personal information is disseminated beyond the immediate parties to a lawsuit — a prescription with implications not only for secrecy in civil litigation, but also potentially for several other prominent procedural issues.

Keywords: civil litigation, dignity, privacy, nondisclosure agreements, arbitration, access to justice, civil recourse theory

JEL Classification: K41