Some data from PERCEPTIONS IN LITIGATION AND MEDIATION: LAWYERS, DEFENDANTS, PLAINTIFFS AND GENDERED PARTIES (Cambridge University Press, New York, 2009)
I want to provide some support for the claims made in my previous post, summarizing the main findings of my book Perceptions in Litigation and Mediation. Below are two of the many areas that support the “parallel worlds” theme relating to the different understandings of legal case processing and case resolution as between legal actors and lay litigants.
CHAPTER 2 EXCERPTS ON UNDERSTANDINGS OF WHAT PLAINTIFFS WANT:
Chapter 2 explores and attempts to make sense of an issue fundamental to litigation in general as well as mediation in particular: What do plaintiffs want? Why plaintiffs sue, and their consequent litigation aims should have a marked impact on their objectives and experiences in litigation and litigation-linked mediations. Likewise, attorneys’ objectives, approaches to their cases and conduct throughout litigation and mediation are affected by their basic understandings of what those who commence these suits want; that is, what the cases are about. Little is known about what litigants really want from the civil justice system and what they aim to achieve. Consequently we have little knowledge of whether litigants’ real objectives are met by the realities of civil litigation including litigation–linked processes such as mediation.
PHYSICIAN LAWYERS: IT’S ONLY ABOUT MONEY
Virtually all physician lawyers were of the strong belief that plaintiffs had sued for financial compensation alone. Even the two who mentioned that non-fiscal objectives might also have been involved put much emphasis on claimants’ primary monetary aims.
The following excerpts are typical of defense physician lawyers in answering the global question, ‘WHAT IN YOUR VIEW WERE THE PLAINTIFF’S AIMS IN LITIGATING?’
‘My view is the issue was money, to compensate for the pain associated with the deterioration, and to compensate for lost income associated with the surgery that was necessary. SO IT WAS MONEY ALONE? I believe so.’ Male attorney-50’s-prescription alleged to have destroyed bone tissue, resulting in 40-year-old plaintiff undergoing hip replacement surgery-litigating several months
‘To settle it. Their assumption was that this would never go to trial; that they would get money out of this beforehand. SO, YOU FEEL IT IS SOLELY AN ISSUE OF OBTAINING FINANCIAL COMPENSATION Yes, but I also think that they are of the view that if they obtain financial compensation it will make…them feel better. I think they’re misguided on that.’ Female attorney-30’s-abdomen not left intact after surgery litigating several months
‘I think in virtually all cases it’s directly driven by their desire for compensation…The sole aim, you know, in most of the cases it is to be financially compensated for the wrong. And I would say that’s in 99% of the cases I do, that’s what plaintiffs want.’ male attorney-30’s-child fatality case-litigating 4 years
PLAINTIFF LAWYERS’ VIEWS ON PLAINTIFFS’ LITIGATION AIMS
The bulk of plaintiffs’ lawyers viewed monetary recompense as their clients’ primary aim. Yet, they were more aware of extra-legal litigation objectives as compared with defense lawyers. Nonetheless, claimants’ monetary aims were prominent in most plaintiff lawyers’ parlance. In fact, a significant minority of both specialist and generalist plaintiff lawyers viewed financial compensation as their clients’ only aim. Yet, in comparison to most defense lawyers, they generally explained this on a less legal, more ‘human’ level. Of course, plaintiffs’ lawyers would generally be most likely to acknowledge other motives, as plaintiffs express their emotions directly to their legal counsel.
PLAINTIFFS: ‘IT’S NOT ABOUT THE MONEY! IT’S ABOUT PRINCIPLES’
Of all respondents, plaintiffs’ views are arguably the most important in answering the question of what motivated them to sue and what precisely they wanted. Interestingly, plaintiffs’ articulations of their litigation objectives rarely correlated with legal actors’ perceptions. In fact, a regular and conspicuous occurrence was the failure to mention financial compensation as an objective at all unless probed (occurring in 65% of interviews). Instead, what plaintiffs recurrently repeatedly was a lexicon of non-fiscal, extra-legal objectives for litigation. The issue of ‘principle’ was prominent for plaintiffs as revealed in the various objectives they passionately spoke about. ‘It’s not about the money’ was a recurrent theme throughout. Many of the comments concerned dignity and respect after the injury, inability to be heard, refusal to listen, dismissal and victim blaming. Moreover, plaintiffs’ extra-legal objectives did not appear to be affected by the passage of time, as there were no marked disparities in the way plaintiffs spoke of why they sued and what they wanted from the civil justice system as between plaintiffs who had commenced litigation three to four months earlier (interviewed subsequent to court-mandatory mediations) and claimants who had been litigating for several years (interviewed after voluntary mediations of cases already on trial lists).
Claimants’ Descriptions Of Their Litigation Aims
Plaintiffs’ articulated litigation aims were thickly composed of extra-legal objectives of principle, with 41% not mentioning monetary compensation at all, 35% viewing it of secondary importance, 18% describing money as their primary objective in suing, and only one person (6%) saying it was money alone.
CHAPTER 5 EXCERPTS ON LAWYERS VERSUS PARTIES AIMS FOR CASE RESOLUTION AT MEDIATIONS
Plaintiffs’ mediation objectives were quite consonant throughout the claimant group. Plaintiffs agreed that financial settlement was one aim. However, they regularly stressed that they wanted numerous things from mediation apart from settlement Most wanted defendants to admit fault or accept responsibility (94%), aimed to hear defendants’ perspectives (65%) and sought answers or explanations of what had occurred (71%). All plaintiffs stressed the need to be seen, heard, and understood by the defense in terms of what they had been through and their present situations. This included obtaining acknowledgements of their suffering. Such objectives contributed to plaintiffs’ pervasive desires for catharsis and closure. These findings are consonant with chapter 4 data highlighting plaintiffs’ perceptions of mediation as a place for information, human communication and psychologically ‘feeling better’. Consequently, most plaintiffs also wanted defendants in mediation to show they cared (53%) and to assure them the events would not recur (59%). Importantly, plaintiffs’ articulated extra-legal mediation objectives for closure, catharsis, wanting to be heard, wanting answers, apologies, admissions of fault and defendants to show they cared were the same or similar regardless of whether mediations were mandatory (occurring within months of the commencement of legal suits) or voluntary (often years later). This suggested that plaintiffs’ extralegal needs did not change over time. Moreover, when comparing claimants’ discourse on their litigation aims with their mediation objectives, the findings here reinforce those in chapter two on what plaintiffs said they sought from the justice system through litigation.
Plaintiffs’ Versus Plaintiff Lawyers’ Case Resolution / Mediation Aims – The disparity in mediation aims of plaintiffs and plaintiff lawyers revealed important differences in what each planned for mediation in terms of how to resolve the same case. Other than wanting settlement, the mediation objectives of plaintiffs and plaintiffs’ lawyers were diverse in all categories. For instance, though some plaintiff lawyers noted their clients wanted defendants to admit fault (37%), regardless of feasibility not a single one sought this at mediation. In comparison, virtually all plaintiffs (94%) sought fault admissions at mediation. Similarly, plaintiff lawyers never mentioned wanting to hear defendants’ explanations of the disputed incidents. Again this was something that most plaintiffs desired (71%). Finally, as compared with the bulk of claimants (88%) who sought apologies at mediation, only a minority (32%) of plaintiff lawyers did (though almost half remarked that apologies were important for their clients).
Defendants’ Versus Defense Lawyers’ Mediation Aims
Gross disparities in mediation aims were found when comparing the discourse of defendant physicians with defense lawyers, particularly in the areas of apology, explaining their perspectives, listening to plaintiffs’ viewpoints and showing care. Moreover, physician lawyers’ discourse of tactical mediation objectives contained little of what plaintiffs said they sought at mediation. For instance, only one physician lawyer (10%) intended to show plaintiffs ‘the defendant cared’ about what happened. This was in sharp contrast to defendant physicians’ aims, where most (83%) aimed to show care. Moreover, regardless of their case assessments, no physician lawyer intended to admit any fault or to provide explanations or answers to plaintiffs about defendant physicians’ perspectives on what occurred. This was despite virtually all physician lawyers’ questionnaire responses indicating that underlying issues were more important for their physician clients than financial compensation. Yet, none discussed relaying this information as a mediation objective.
The disparities in mediation aims between legal actors and disputants were particularly clear in the following case.
LOSS OF SIGHT CASE – VOLUNTARY MEDIATION – The plaintiff explained that she had asked her optometrist of 16 years to do a glaucoma test because her father had been inflicted with the disease, and she felt film on her eye. She said, ‘He told me he’d already done the test and I was negative . . . I then went to another clinic and tested positive for glaucoma and was told that the right eye was at an advanced stage and could not be repaired—and that it should have been detected many years ago.’
MALE PLAINTIFF -50′s ‘…I wish he or his lawyer would express some remorse…an apology…their acceptance of guilt. We received absolutely nothing like that…Dr…wasn’t there…He could express remorse some way….It was like “I’m here to write a check”…It’s much more than dollars…It’s my wife’s eyes…’
MALE PHYSICIAN LAWYER-50′s-‘WHAT WERE YOUR MEDIATION OBJECTIVES Only to get the case settled.’
MALE SPECIALIST PLAINTIFF LAWYER-40′s ‘APART FROM SETTLEMENT, DID YOU HAVE ANY OTHER MEDIATION OBJECTIVES No…If there had been no mediation and just a bilateral settlement between the lawyers, I don’t know if the clients would have felt any loss in doing it that way…I’m not sure…because I really haven’t asked them about that.’
I will speak in my next post on my current scholarship, on the very different topic of international human rights laws and norms relating to formal courts versus informal/quasi-legal processing of violence against women cases throughout India.