"It's not about the money!": A theory on misconceptions of plaintiffs' litigation aims

University of Pittsburgh Law Review

Volumn 68, Issue 2, 2006, Pages 341-385

  Relis, Tamara ^a  

^a The Earth Institute at Columbia University   (United Kingdom)

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EID: 36849037289     PISSN: 00419915     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (175)

1. I have termed non-monetary objectives "extra-legal" as monetary damages are discussed within legal rules and the traditional world of legal practice. Some of the literature on legal policy, victims' rights, mediation and legal consciousness refers to a number of the non-monetary litigation aims I have termed "extra-legal" as "legal," e.g. plaintiffs' desires to obtain acknowledgment of error. See generally PATRICIA EWICK & SUSAN SILBEY, THE COMMON PLACE OF LAW (1998);
2. David Engel, The Oven Bird's Song: Insiders, Outsiders and Personal Injuries in an American Community, 18 LAW & SOC'Y REV. 551 (1984). However, I have used this term to highlight an important recurrent theme within this work and to reflect the views and perceptions of the lawyers within my sample. In their opinion, these aims are not within the province of the law or legal practice, and thus are "extra-legal."
3. See William Felstiner et al., The Emergence and Transformation of Disputes: Naming, Blaming, Claiming, 15 LAW & SOC'Y REV. 631, 631-32, 650-51 (1981).
4. Although dispute transformation in medical malpractice cases has not been examined in depth, it has been found in various other case types. These include divorce, poverty law, consumer, general injury, small claims and harassment. See, e.g., JAMES WHITE, JUSTICE AS TRANSLATION: AN ESSAY IN CULTURAL AND LEGAL CRITICISM 20-21, 260-61, 269 (1990);
5. Carl Hosticka, We Don't Care About What Happened, We Only Care About What Is Going To Happen: Lawyer-Client Negotiations Of Reality, 26 SOC. PROBS. 600, 600-04 (1979) (utilizing solely observation data);
6. Clark Cunningham, The Lawyer as Translator, Representation as Text: Towards an Ethnography of Legal Discourse, 77 CORNELL L. REV. 1298, 1339-57, 1367-85 (1992);
7. Tamara Relis, Civil Litigation from Litigants' Perspectives: What We Know and What We Don't Know About the Litigation Experience of Individual Litigants, in STUD. L., POL. & SOC'Y 162-63, 167-68, 193 (Austin Sarat & Patricia Ewick eds., 2002).
8. See generally Anthony Alfieri, Reconstructive Poverty Law Practice: Learning Lessons of Client Narrative, 100 YALE L.J. 2111 (1991);
9. Christopher Gilkerson, Poverty Law Narratives: The Critical Practice and Theory of Receiving and Translating Client Stories, 43 HASTINGS L.J. 883 (1992);
10. Austin Sarat & William Felstiner, Law and Strategy in the Divorce Lawyer's Office, 20 LAW & SOC'Y REV. 93, 116 (1986);
11. Jerome Bruner, A Psychologist and the Law, 37 N.Y.L. SCH. L. REV. 173, 182 (1992);
12. JOHN CONLEY & WILLIAM O'BARR, RULES VERSUS RELATIONSHIPS: THE ETHNOGRAPHY OF LEGAL DISCOURSE (1990);
13. MAUREEN CAIN, THE GENERAL PRACTICE LAWYER AND THE CLIENT: TOWARDS A RADICAL CONCEPTION (1983). Legal transformation has also been found in various jurisdictions. For instance, in discussing the Kenyan legal system it has been noted that lawyers have "elaborated highly sophisticated techniques for explaining disputes in terms of the norms involved . . . diverging from that employed by society at large."
14. See Richard Abel, A Comparative Theory of Dispute Institutions in Society, 8 LAW & SOC'Y REV. 234, 271 (1974). Likewise, utilizing case studies from both western and non-western settings (e.g. Tanzania), it has been found that "disputes altered as they were processed in response to the interests of various participants . . ." with "narrowing being the most common process of dispute transformation."
15. See Lyn Mather & Barbra Yngvesson, Language, Audience, and the Transformation of Disputes, 15 LAW & SOC'Y REV. 775, 778, 780, 789, 796 (1981). The legal narrowing of disputes "determined by the needs and purposes of the legal process" was also noted in Pasargada.
16. See Boaventura de Sousa Santos, The Law of the Oppressed: The Construction and Reproduction of Legality in Pasargada, 12 LAW & SOC'Y REV. 5, 18 (1977).
17. Divorce clients have been found to repeatedly attempt to broaden the dialogue with their lawyers. However, lawyers' dispute interpretations reflecting their own sense of legal reality generally prevailed. See AUSTIN SARAT & WILLIAM FELSTINER, DIVORCE LAWYERS AND THEIR CLIENTS 85, 106-07 (1995) [hereinafter SARAT & FELSTINER, DIVORCE LAWYERS] (relying upon observations of conversations between divorce lawyers and clients in two U.S. states);
18. Austin Sarat & William Felstiner, Law and Social Relations: Vocabularies of Motive in Lawyer/Client Interaction, 22 LAW & SOC'Y REV. 737, 741-42, 766-67 (1988) [hereinafter Sarat & Felstiner, Law and Social Relations]; Sarat & Felstiner, supra note 3, at 116-17.
19. Little is known about what litigants really want from the civil justice system, what they aim to achieve and how their objectives may change. Consequently, we have little knowledge of whether litigants' real aims are met by the realities of civil litigation. See generally HAZEL GENN, PATHS TO JUSTICE: WHAT PEOPLE DO AND THINK ABOUT GOING TO LAW (1999) [hereinafter GENN, PATHS TO JUSTICE];
20. Hazel Genn, Access to Just Settlements: The Case of Medical Negligence, in REFORM OF CIVIL PROCEDURE: ESSAYS ON "ACCESS TO JUSTICE" (A. Zuckerman & R. Cranston eds., 1995) [hereinafter Genn, Access to Just Settlements];
21. JOHN BALDWIN, SMALL CLAIMS IN THE COUNTY COURTS IN ENGLAND AND WALES (1997). Even Sarat's & Felstiner's research into divorce lawyers and clients lacks much input from clients on their understanding of what was occurring during their attorney-client relationships. Nor does it tell us whether clients absorb and internalize what they hear from their lawyers and if they do, how they feel about this. See Cunningham, supra note 3, at 1339-57, 1367-85.
22. Research has failed to examine in depth the practical effects of dispute transformation. See Relis, supra note 3, at 193.
23. Procedural justice studies and legal research suggest that the manner in which litigation processes are subjectively perceived is affected by litigants' expectations, which are linked to their aims. See generally CONLEY & O'BARR, supra note 3; Tom Tyler et al., Maintaining Allegiance to Political Authorities: The Role of Prior Attitudes and the Use of Fair Procedures, 33 AM. J. POL. SCI. 629 (1989);
24. William O'Barr & John Conley, Lay Expectations of the Civil Justice System, 22 LAW & SOC'Y REV. 137 (1988).
25. Felstiner et al, supra note 2, at 650.
26. It has been argued that litigants' goals may change over time. See GENN, PATHS TO JUSTICE, supra note 5, at 11. Others have noted that litigants' perceptions of their cases and needs may change during litigation.
27. See Austin Sarat, Alternatives in Dispute Processing: Litigation in a Small Claims Court, 10 LAW & SOC'Y REV. 341, 342, 342 n.7 (1976);
28. SARAT & FELSTINER, DIVORCE LAWYERS, supra note 4, at 53. As a separate issue, litigants' perceptions of case facts have been found to change over time. Felstiner et al., supra note 2, at 631. See generally CONLEY & O'BARR, supra note 3.
29. Relis, supra note 3, at 193.
30. See generally TAMARA RELIS, PARALLEL WORLDS OF DISPUTES AND MEDIATION: LITIGANTS, LAWYERS AND GENDERED ACTORS' PERSPECTIVES (forthcoming 2007) (which illustrates how this, in fact, is the case); CONLEY & O'BARR, supra note 3 (examining small claims litigants); Relis, supra note 3, at 163; Hosticka, supra note 3 (research into poverty law cases).
31. See Cunningham, supra note 3, at 1300.
32. The full dataset derives from 131 in-depth interviews, questionnaires and observation files of actors (plaintiffs, defendants, lawyers and mediators) involved in 64 medical malpractice cases that underwent voluntary and court-linked mandatory mediations in three sites in Toronto (Ontario Court Mandatory Mediation Program, ADR Chambers, College of Physicians and Surgeons). Specifically, there are case interviews and questionnaire files from 17 plaintiffs (co-plaintiffs in any cases were interviewed separately), 13 defendant physicians, 27 plaintiff lawyers (comprising views from seven general practitioners & 11 specialist medical lawyers, being those who worked on 10 or more medical cases per annum and amongst the top specialist lawyers in the region - nine discussed more than one case), 17 physician lawyers (with views from eight physician lawyers - four discussed more than one case), 23 hospital lawyers (comprising views of seven hospital lawyers - five discussed more than one case), 29 mediators (with views from 17 mediators, 10 being lawyers and seven being non-lawyers - seven discussed more than one case) and two hospital representative/insurer interviews. All physician lawyers and hospital lawyers were medical malpractice specialists. Interviews were conducted with 10 plaintiffs subsequent to voluntary mediations and seven plaintiffs subsequent to mandatory mediations on the litigation-track. Mandatory court-linked mediations (similar to many U.S. court-connected programs, although generally occurring prior to discovery) generally had to take place within 90 days after the first defense had been filed, unless the court ordered otherwise. (ONT. R. CIV. P. 24.1.09). Voluntary mediations at ADR Chambers generally occurred far later (often years later) and close to trial (all cases were already on trial lists). See Julie Macfarlane, Culture Change? A Tale of Two Cities and Mandatory Court-Connected Mediation, 2002 J. DISP. RESOL. 241, 244-45. Disputes that did not settle at mediation continued to follow normal litigation routes.
33. See Ontario Ministry of the Attorney General, Ontario Mandatory Mediation Program at http://www.attorneygeneral.jus.gov.on.ca/english/ courts/manmed/rule24.asp (last visited Nov. 6, 2006). Plaintiffs would have commenced litigation within one year of the disputed incidents as in Ontario the limitation period for medical malpractice cases is only one year. [Limitation of Actions Act, R.S.A., ch. L-15, §§ 55(a), 56 (1980); Health Disciplines Act, R.S.O., ch. H4, § 17 (1980); Hospitals Act, R.S.P.E.I., ch. H-10, § 13 (1988); The Medical Profession Act 1981, 1980-81 S.S., ch. M-10.1, § 72]. College mediations, which were prelitigation, were not included in the analysis of plaintiffs' litigation aims. A number of the lawyers and mediators provided data on more than one case as these individuals were repeatedly listed on the court files as acting in the various medical cases. This appeared to be due to the relatively small size of the specialist medical-legal community in the region. Nonetheless, I obtained a wide range of exposure to different mediators and lawyers. Accordingly, I am not aware of any bias resulting from the cases included in the study.
34. See Chris Guthrie, The Lawyer's Philosophical Map and the Disputant's Perceptual Map: Impediments to Facilitative Mediation and Lawyering 6 HARV. NEGOT. L. REV. 145, 165-166 (2001); Genn, Access to Just Settlements, supra note 5, at 11;
35. John Conley & William O'Barr, Hearing the Hidden Agenda: The Ethnographic Investigation of Procedure, 51 LAW & CONTEMP. PROBS., 181, 182-184, 196-97 (1988) [hereinafter Conley & O'Barr, Hearing the Hidden Agenda];
36. Neil Vidmar, The Small Claims Court: A Reconceptualization of Disputes and an Empirical Investigation, 18 LAW & SOC'Y REV. 515, 515 (1984);
37. Charles Vincent et al., Why Do People Sue Doctors? A Study of Patients and Relatives Taking Legal Action, 343 THE LANCET 1609, 1609-13 (1994). The data here shed light upon how lawyers and disputants think and speak about the meaning of cases. They also represent talk about motives, which I hope will be regarded as revealing and useful. I do not claim that this answers the ultimate psychological question of why people do things. This is one of several windows on motivations, adding to the scant depth of research on the needs of plaintiffs and why they sue.
38. Richard Sherwin, Lawyering Theory: An Overview What We Talk About When We Talk About Law, 37 N.Y.L. SCH. L. REV. 9, 42-43, 48, 51 (1992).
39. See Conley & O'Barr, Hearing the Hidden Agenda, supra note 14, at 181, 182-84, 196-97. Conley and O'Barr's ethnographic research into small claims litigants in three U.S. states provides extensive linguistic evidence of the significance of litigants' hidden extra-legal, non-economic agendas. Stressing the "importance, if not the pre-eminence of non-economic factors for litigants," they conclude, "the discontinuity between litigant agendas and the operating assumptions of the system may be a fundamental source of dissatisfaction with the law."
40. This research applies interpretive theory, drawing upon the agency-structure paradigm that emerges in the works of Anthony Giddens and Pierre Bourdieu. As such, the focus is upon recovering actors' understandings and meanings whose actions are informed by structure - here, being litigation and mediation processes. See PIERRE BOURDIEU, THE LOGIC OF PRACTICE 18, 53 (1990);
41. PIERRE BOURDIEU, OUTLINE OF A THEORY OF PRACTICE 3, 21, 72 (Richard Nice trans., Cambridge Univ. Press 1977);
42. ANTHONY GIDDENS, THE CONSTITUTION OF SOCIETY: OUTLINE OF THE THEORY OF STRUCTURATION 5, 25, 30 (1984);
43. George Walsh, Introduction to ALFRED SCHUTZ, THE PHENOMENOLOGY OF THE SOCIAL WORLD, at xxi, xxiii, xxviii (George Walsh & Frederick Lehnert trans., Northwestern Univ. Press 1967);
44. MAX WEBER, WIRTSCHAFT UND GESELLSCHAFT 1 (A.M. Henderson &Talcott Parsons trans., J.C.B. Mohr 1957) (1922). In contrast to positivism, for Giddens, social reality is the "ongoing construction of and by knowledgeable actors whose recurrent interactions create, reproduce and transform the social world."
45. See NICOS P. MOUZELIS, BACK TO SOCIOLOGICAL THEORY: THE CONSTRUCTION OF SOCIAL ORDERS 19 (1991). Yet, the constitution of agents and structures represents a duality because structure's role in organizing human conduct is not external to individuals. See id. at 26. Structure consists of recursively organized sets of rules and resources comprising the "situated activities of human agents, reproduced across time and space." See GIDDENS, supra note 17, at 25. Not far from Giddens, Bourdieu 's theory of practice stipulates that "each agent . . . is a producer and reproducer of objective meaning."
46. See BOURDIEU, OUTLINE OF A THEORY OF PRACTICE, supra note 17, at 21. Thus, social practices are fundamental in understanding how social structures are produced and reproduced, as practices constitute structures while also being determined by structures. See id.
47. The research methodology was based predominantly on a qualitative paradigm, using a multiple case study design. Although the nature of the sample excluded the possibility of meaningful regression or multivariate analysis, a small amount of quantitative analysis was also undertaken, utilizing descriptive statistics. This was done to assess percentages and proportions of particular responses and to evaluate, as far as the data permitted, the strength of any associations between certain variables. Variables studied include individuals' views and perceptions, and their gender and actor positions in the litigation process. Analysis of participants' discourse was facilitated by the ATLAS .ti qualitative analysis computer program, enabling grounded theory. The dataset was segmented into 5508 coded units and grouped into 263 code families representing the main areas of focus. The integrity of the data was carefully preserved, and triangulation of methods was utilized to enhance internal validity. As to external validity, natural groupings representing social segmentation were used, enabling generalizations to wider populations, as is common in qualitative research and similar projects. Additionally, by approaching all litigated medical malpractice cases that mediated during the Fieldwork Period (May 2000 to October 2001) in the three sites, I conducted a form of census. The number of individuals approached who consented to partake in the research was over 70%, a response rate considered reasonable in terms of generalizing to outside populations. Of course, as in all such qualitative legal research a number of methodological weaknesses exist. The fact that a random probability sample was impossible to obtain limits the generalizations that can be made from the findings across populations. There are also inherent risks in extrapolating findings without qualification from one location to another. However, it is acceptable to generalize thematic conclusions. Additionally, the small number of directly observed mediations (seven), due to permission difficulties, may be considered a weakness. To cure the effect of this limitation, observation data was used solely to support or contradict interview and questionnaire data. Due to the small numbers within each actor group, the findings must be regarded as tentative. However, in view of the consistency of responses and in support of what the findings reveal regarding general legal practices, although I looked at particular respondents involved in one case-type in particular institutions, there is no a priori reason to think that these findings would be different from other cases in other culturally similar jurisdictions.
48. There has been substantial growth in the frequency and severity of medical litigation in Canada. See Donald N. Dewees et al., The Medical Malpractice Crisis: A Comparative Empirical Perspective, LAW & CONTEMP. PROBS., Winter 1991, at 220-21, 237, 250;
49. Joan M. Gilmour, Overview of Medical Malpractice Law in Canada, 3 ANNALS HEALTH L. 179, 183 (1994).
50. See Gerald B. Robertson, The Efficacy of the Medical Malpractice System: A Canadian Perspective, 3 ANNALS HEALTH L. 157, 170 (1994). In 1991, only 23% of plaintiffs in Canada succeeded at trials, by 1992 that statistic had increased to a mere 34% success rate. Id. at 173. This is similar to success rates in the United States and Britain.
51. See P. Fenn & C. Whelan, Medical Litigation: Trends, Causes, Consequences, in SOCIO-LEGAL ASPECTS OF MED. PRAC., 8 (Robert Dingwall ed., 1989);
52. Walter Orlando Simmons, An Economic Analysis of Mandatory Mediation and the Disposition of Medical Malpractice Claims, J. LEGAL ECON., Fall 1996, at 42. Canadian plaintiffs who do succeed at trials generally receive far less than successful plaintiffs in the United States, as non-pecuniary damages awards, which include loss for pain and suffering, loss of expectation of life, and loss of amenities, were capped at $100,000 CAD in 1978 (though adjusted for inflation) pursuant to a trilogy of decisions by the Supreme Court of Canada. See Gilmour, supra note 19, at 185-86, 188 n.39 (citing Andrews v. Grand & Toy Alta. Ltd., [1978] 2 S.C.R. 229, 263-65; Thornton v. Bd. of Sch. Tr. of Sch. Dist. No. 57 (Prince George), [1978] 2 S.C.R, 267, 284). Additionally, although compensatory aggravated damages may be awarded, Canadian courts very rarely award punitive or exemplary damages. See Gilmour, supra note 19, at 186-87.
53. See Gilmour, supra note 19, at 197-98; Vincent et al., supra note 14, at 1609, 1612; Robertson, supra note 20, at 173.
54. See Gilmour, supra note 19, at 189-90. The legal position as to medical liability in Ontario is virtually the same as that in most of common law Canada. See id. at 187; Robertson, supra note 20, at 168. Apart from Quebec, which is a civil law jurisdiction, Canada's remaining provinces and territories are common law jurisdictions where there is a notable coherence in case law, partially because the Supreme Court of Canada has acted to create doctrinal uniformity among all provinces as to medical liability. See Gilmour, supra note 19, at 189-91; Robertson, supra note 20, at 173-74, 173 n.35. Medical accidents in Ontario are compensated according to general civil liability principles and negligence tort law in particular, which aims to compensate those injured negligently as well as to prevent substandard practice. See Gilmour, supra note 19, at 189. This is the case notwithstanding the fact that other civil wrongs, such as breach of contract, breach of fiduciary duty and battery, could also be relevant. All physicians are consequently under a duty to exercise reasonable care when treating patients. See id. at 190. For medical negligence to be substantiated, plaintiffs must, inter alia, prove that the doctor conducted herself in a manner which was below "that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing." See id.; Robertson, supra note 20, at 173, 173 n.31 (citing Crits v. Sylvester, [1956] O.R. 132, 143 (C.A.), aff" d, [1956] S.C.R. 991). Additionally, apart from emergency situations, patients in Canada who are able to comprehend the nature and consequences of medical treatment must explicitly or impliedly provide informed consent to receive treatment, or physicians may be sued for assault or battery. See Ciarlariello v. Schacter, [1993] 2 S.C.R. 119; Reibl v. Hughes, [1980] 2 S.C.R. 880, 888-89; Gilmour, supra note 19, at 191-93; Robertson, supra note 20, at 174, 174 nn.41-42. As for liability of hospitals in medical negligence cases, they may be in breach of their direct duty of care owed to patients. See Gilmour, supra note 19, at 190-91. This includes liability for failures in their system to assure proper and punctual patient care. See id. at 191. However, only interns, residents and nurses are considered hospital employees by the Canadian courts. See id. Consequently, hospitals are not vicariously liable for the negligence of doctors who are viewed as independent contractors, and are sued as separate entities. See id.
55. See HARVEY TEFF, REASONABLE CARE: LEGAL PERSPECTIVES ON THE DOCTOR- PATIENT RELATIONSHIP 58 (1994);
56. Clifford Hawkins & Ian Peterson, Medicolegal Audit in the West Midlands Region: Analysis of 100 Cases, 295 BRIT. MED. J. 1533, 1535 (1987);
57. Sheila M. Johnson, A Medical Malpractice Litigator Proposes Mediation, DISP. RESOL. J., Spring 1997, at 44.
58. See, e.g., Edward A. Dauer & Leonard J. Marcus, Adapting Mediation to Link Resolution of Medical Malpractice Disputes with Health Care Quality Improvement, LAW & CONTEMP. PROBS., Winter 1997, at 199-200.
59. See Gerald Robertson, Reform of the Law of Medical Liability: The Position in the Common Law Jurisdictions of Canada, in CONTEMPORARY LAW: CANADIAN REPORTS TO THE 1990 INTERNATIONAL CONGRESS OF COMPARATIVE LAW 175 (H. Patrick Glenn ed., 1992).
60. Henry S. Farber & Michelle J. White, A Comparison of Formal and Informal Dispute Resolution in Medical Malpractice, 23 J. LEGAL STUD. 777, 781 (1994).
61. Even with contingency fees, plaintiffs still risk having to pay a proportion of defendants' legal costs if they lose at court, since Canada has implemented the British rule that costs follow the event in all civil litigation. Thus, plaintiffs whose cases are not sufficiently strong to result in early settlements must be ready to risk large legal costs. See Gilmour, supra note 19, at 184; Dewees et al., supra note 19, at 227; HERBERT KRITZER, RISKS, REPUTATIONS AND REWARDS: CONTINGENCY FEE LEGAL PRACTICE IN THE UNITED STATES 258 (2004) (discussing contingency fee arrangements in Ontario). It must also be noted that, although technically available in Ontario, legal aid is virtually defunct. See Dewees et al., supra note 19, at 228, 249. This situation deters the commencement of actions and encourages litigants to reach settlement. See Gilmour, supra note 19, at 184-85.
62. See TEFF, supra note 23, at 13, 57; Chris Currie, Mediation and Medical Practice Disputes, 15 MEDIATION Q. 215, 217 (1998); Dauer & Marcus, supra note 24, at 190-91, 191 n.29; Johnson, supra note 23, at 45;
63. Janice E. Linn, Alternative Dispute Resolution for Health Care Providers: An Introduction, 22 J. HEALTH & HOSP. L. 336, 336 (1989);
64. Scott Forehand, Note, Helping the Medicine Go Down: How a Spoonful of Mediation Can Alleviate the Problems of Medical Malpractice Litigation, 14 OHIO ST. J. ON DISP. RESOL. 907, 910 n.14 (1999);
65. Thomas Hobbs & Gregory Gable, Coping With Litigation Stress, PHYSICIAN'S NEWS DIGEST, Jan. 1998, http://physiciansnews.com/law/198.html.
66. The CMPA, which employs virtually all medical defense lawyers in Canada, is a non-profit medical mutual defense organization incorporated by an Act of Parliament and owned and run by its physician members. See Dewees et al., supra note 19, at 221-22; Gilmour, supra note 19, at 182. Though it is within the organization's discretion to refuse claims altogether and it does not sell insurance per se, the CMPA acts partially as an insurer. Gilmour, supra note 19, at 181-82. It provides its members with legal advice and counsel in legal actions based on allegations of malpractice, payment of legal expenses, and provides no upper limit on the court awards, costs and settlements that it will pay out, with no deductibles. See id.; Canadian Medical Protective Association (CMPA), About Us, http://www.cmpa-acpm.ca/cmpapd02/ pub_index.cfm?FILE=HOME_MAIN&LANG=E (follow "About the CMPA" hyperlink; then follow "About Us" hyperlink). Hospitals are normally self-insured by various companies, and nurses have a protection organization not unlike the CMPA. See Gilmour, supra note 19, at 182;
67. J. ROBERT S. PRICHARD, LIABILITY AND COMPENSATION IN HEALTH CARE: A REPORT TO THE CONFERENCE OF DEPUTY MINISTERS OF HEALTH OF THE FEDERAL/PROVINCIAL/TERRITORIAL REVIEW ON LIABILITY AND COMPENSATION ISSUES IN HEALTH CARE, App. A at 58-59, 61, 63-64 (1990).
68. Comments on manuscript, from Richard Abel, UCLA Law School, to author (Sept. 5, 2005) (unpublished, on file with author).
69. Plaintiffs' lawyers were omitted from the analysis, as there were only two females amongst that group.
70. See CAROL GILLIGAN, IN A DIFFERENT VOICE: PSYCHOLOGICAL THEORY AND WOMEN'S DEVELOPMENT 25-29, 62-63, 173 (1982).
71. See Jeffrey W. Stempel, Forgetfulness, Fuzziness, Functionality, Fairness, and Freedom in Dispute Resolution: Serving Dispute Resolution Through Adjudication, 3 NEV. L.J. 305, 311-312 (2003);
72. Stephen N. Subrin, A Traditionalist Looks at Mediation: It's Here to Stay and Much Better Than I Thought, 3 NEV. L.J. 196, 207-08 (2003).
73. Sherwin, supra note 15, at 42-43, 48, 51.
74. See Abel, supra note 29.
75. See HERBERT KRITZER, THE JUSTICE BROKER: LAWYERS AND ORDINARY LITIGATION 28-34 (1990) (identifying monetary stakes in the vast majority of cases, although Kritzer also identifies nonfinancial stakes). Kritzer also makes the point that a distinction should be made between plaintiffs' goals in litigation and their goals in the underlying dispute, as few litigants would choose to invest their own money in litigation if there were not a prospect of a significant recovery. E-mail from Herbert Kritzer, Professor of Law, William Mitchell College of Law (July 11, 2006) (on file with author). This is a valid point, however it may be more applicable to other case-types. In the present study, some of the claims were for relatively low damages (e.g. infant death case, child operation case, vasectomy case). Moreover, some litigants were paying their lawyers on an hourly-rate basis (i.e. they did not have contingency fee agreements with their attorneys) with no guarantees of financial recovery. Additionally, plaintiffs in the present study were asked specifically about their why they instituted legal proceedings and their goals for litigation itself, not simply about their underlying dispute objectives. Although, arguably these would be intertwined once litigation commenced. Finally, I do not make the claim that plaintiffs' aims for litigation never include monetary objectives, but simply that plaintiffs have a whole host of non-fiscal objectives for litigation that are not recognized by many legal actors.
76. See Conley & O'Barr, Hearing the Hidden Agenda, supra note 14, at 181;
77. Marc Galanter, Adjudication, Litigation, and Related Phenomena, in LAW AND THE SOCIAL SCIENCES 151, 191 (Leon Lipson & Stanton Wheeler eds., 1986) [hereinafter Galanter, Adjudication, Litigation, and Related Phenomena] (illustrating that litigants desire moral vindication albeit to varying degrees);
78. Marc Galanter, Reading The Landscape of Disputes: What We Know and Don't Know (and Tkink We Know) About Our Allegedly Contentious and Litigious Society, 31 UCLA L. REV. 4, 30-31 (1983) [hereinafter Galanter, Landscape of Disputes];
79. Sally Engle Merry & Susan S. Silbey, What Do Plaintiffs Want? Re-Examining the Concept of Dispute, 9 JUST. SYS. J. 151, 157 (1984); SARAT & FELSTINER, supra note 4, at 93 (finding that litigants often seek acknowledgement that they have been treated unjustly as evidenced by the fact that they commonly seek apologies; and that some litigants seek solely emotional vindication).
80. See generally SALLY ENGLE MERRY, GETTING JUSTICE AND GETTING EVEN: LEGAL CONSCIOUSNESS AMONG WORKING- CLASS AMERICANS (1990) (illustrating that litigants frequently have important hidden agendas and unrevealed aims which may be their cardinal goals and providing an example of a professional female making a $30 claim against a repairman for allegedly causing damage in her house); Engel, supra note 1 (litigants want what they perceive as "justice" by the system ascertaining the truth and finding opponents in the wrong).
81. See CONLEY & O'BARR, supra note 3, at 126-27, 141-49; Conley & O'Barr, Hearing the Hidden Agenda, supra note 14, at 182-84, 196-97; MERRY, supra note 36, at 134-37, 142-46, 170-71; O'Barr & Conley, supra note 7, at 159-60. See generally T. MATRUGLIO, PLAINTIFFS AND THE PROCESS OF LITIGATION (1994).
82. See Engel, supra note 1, at 558-562; Merry & Silbey, supra note 36, at 153; Sarat supra note 9, at 346.
83. See Abel, supra note 29.
84. Although no substantive differences were found within the plaintiffs' group in terms of gender, a further tentative finding relates to evidence of a degree of unease amongst female plaintiffs in discussing the financial objectives inherent in their claims. This was noted in 73% of female plaintiff interviews (11 individuals), yet in 0% of male plaintiff interviews (6 individuals). Even in cases where a mistake was admitted and/or an apology given and a settlement agreed upon, female plaintiffs often appeared less comfortable in speaking about pecuniary issues. This was evident even in cases comprising the most serious harm. Seeming more concerned than males about how others perceived their litigation aims, only female plaintiffs stressed that they were not the sorts of people who sued for money. The following are excerpts from interviews with female plaintiffs whose cases had been ongoing for three to five years. "From day one I said, 'I'm all about truth here. I have to feel good within me.' And that's the reason why I said, 'I'm not the type who would get a slight hit on the bumper and, in all this neck brace and what have you.' I am not that." female-50's "As . . . it got progressively worse, we weren't able to cope with it financially . . . . Also starting a law suit, because you know, we don't sue people. We never have. . . . My parents never sued anybody. We don't do that kind of thing. And that car accident . . . . We don't do that . . . ." female-40's "To me, suing, it was almost a sense of like, the right thing to do . . . . That's your only recourse . . . . She would have needed money for these things. So we 'had' no choice. But, you know, it was that sense too, thinking 'Well what do they think? That we're after money?' Do they think that money is really going to settle this type of thing, and is going to make it okay?" female-40's "We're not like that. We don't want money" female-40's
85. Only nine plaintiffs (53% of those interviewed) sued as well as filed College complaints, whereas all but one plaintiff discussed extra-legal objectives in litigating.
86. Survey findings on medical injury plaintiffs' motivations and litigation aims, coupled with the uniformity of responses proffered by plaintiffs within the present research on their aims of principle leave little doubt as to their veracity. This is also supported by procedural justice findings that litigants can view negotiations, which concentrate on money alone, as trivializing issues they view as important. See Lind et al., In the Eye of the Beholder: Tort Litigants ' Evaluations of their Experiences in the Civil Justice System, 24 LAW & SOC'Y REV. 953, 965-67 (1990).
87. G. Hickson et al., Factors that Prompted Families to File Medical Malpractice Claims Following Perinatal Injuries, 267 JAMA 1359, 1359, 1361 (1992).
88. Genn, Access to Just Settlements, supra note 5, at 393-412. In fact, the British National Consumer Council survey, discussing diverse dispute types, stated that only one third of respondents said monetary compensation was the most important thing they wanted to achieve, with apologies and prevention of similar occurrences also being frequently noted primary goals. See NAT'L CONSUMER COUNCIL, SEEKING CIVIL JUSTICE: A SURVEY OF PEOPLE'S NEEDS AND EXPERIENCES (1995).
89. Vincent et al., supra note 14, at 1609-13.
90. A.E. Daniel et al., Patients' Complaints about Medical Practice, 170 MED. J. AUST. 598, 598-601 (1999); Dauer & Marcus, supra note 24, at 185-86, 218;
91. Catherine Meschievitz, Mediation and Medical Malpractice: Problems with Definition and Implementation, 54 LAW & CONTEMP. PROBS. 195, 200-01 (1991);
92. Paul Nisselle, Editorial: Angered Patients and the Medical Profession, 170 MED. J. AUST. 576, 576-77 (1999). In view of these multi-national findings, I would argue that the issue of money being of secondary importance to many plaintiffs should not be regarded as an instance of North American exceptionalism. However, such findings might differ for plaintiffs in non-western contexts, where money might more often represent core needs for survival.
93. See Abel, supra note 29.
94. Merry & Silbey, supra note 36, at 153-54, 160.
95. Nathalie Des Rosiers et al., Legal Compensation for Sexual Violence: Therapeutic Consequences and Consequences for the Judicial System, 4 PSYCHOL. PUB. POL'Y & L. 433 (1998).
96. Id. at 422.
97. See generally RELIS, supra note 11 (containing chapters on various aspects of case processing for cases that ultimately underwent mediation, and examining the diverse understandings and goals of the lay, professional and gendered actors involved in these cases).
98. But see Felstiner et al., supra note 2, at 638 (arguing that disputants' feelings and objectives change over time and complicate the dispute).
99. See Austin Sarat & William Felstiner, Legal Realism in Lawyer-Client Communication, in LANGUAGE IN THE JUD. PROCESS 139-48 (Judith Levi & Anne Walker eds., 1990);
100. William Felstiner & Austin Sarat, Enactments of Power: Negotiating Reality and Responsibility in Lawyer-Client Interactions, 77 CORNELL L. REV. 1447, 1451-59 (1992);
101. John Griffiths, What Do Dutch Lawyers Actually Do in Divorce Cares?, 20 LAW & SOC'Y REV. 135, 135, 146-49 (1986);
102. Stuart Macaulay, Lawyers and Consumer Protection Laws, 14 LAW & SOC'Y REV. 115, 115, 136-40 (1979); Mather & Yngvesson, supra note 3, at 775, 778, 780, 789, 796;
103. SARAT & FELSTINER, DIVORCE LAWYERS, supra note 4, at 106-07;
104. Austin Sarat & William Felstiner, Law Talk in the Divorce Lawyer's Office, 98 YALE L.J. 1663, 1664, 1671-76 (1989) [hereinafter Sarat & Felstiner, Law Talk].
105. See generally WHITE, supra note 3; Felstiner et al., supra note 2.
106. Litigation objectives was the first topic of discussion during interviews, whereas mediation aims was discussed later on during interviews.
107. See generally RELIS, supra note 11, at chapter 5 (discussing extensively defense attorneys' lack of awareness regarding plaintiffs' aims during litigation-track mediation). PROFESSION (1993).
108. See generally Tamara Goriely, Quality of Legal Services: The Need for Consumer Research, 3 CONSUMER POL'Y REV. 112 (1993);
109. MICHAEL ZANDER, LEGAL SERVICES FOR THE COMMUNITY (1978).
110. Tom Tyler, Citizen Discontent with Legal Procedures: A Social Science Perspective on Civil Procedure Reform, 45 AM. J. COMP. L. 871, 894 (1997). Id. at 872-84.
111. Id. at 872-84.
112. Interview with Joseph Raz, Professor of Law, Columbia Univ., in N.Y., N.Y. (Sept. 29, 2004).
113. MICHAEL PALMER & SIMON ROBERTS, DISPUTE PROCESSES: ADR AND THE PRIMARY FORMS OF DECISION MAKING 25 (1998).
114. Carrie Menkel-Meadow, The Lawyer As Problem Solver And Third-Party Neutral: Creativity And Non-Partisanship In Lawyering, 72 TEMP. L. REV. 785, 787 (1999).
115. Carrie Menkel-Meadow, From Legal Disputes to Conflict Resolution and Human Problem Solving: Legal Dispute Resolution in a Multidisciplinary Context, 54 J. LEGAL EDUC. 7, 20 (2004). The findings also support those who have previously urged lawyers to integrate clients' legal and non-legal interests.
116. See DAVID A. BINDER & SUSAN C. PRICE, LEGAL INTERVIEWING AND COUNSELING: A CLIENT-CENTERED APPROACH 22, 185-86 (1977);
117. ROBERT H. MNOOKIN ET AL., BEYOND WINNING: NEGOTIATING TO CREATE VALUE IN DEALS AND DISPUTES 169 (2000);
118. LEONARD L. RISKIN & JAMES E. WESTBROOK, DISPUTE RESOLUTION AND LAWYERS 86-95 (2d ed. 1997);
119. Warren Lehman, The Pursuit of a Client's Interests, 77 MICH. L. REV. 1078, 1079-80 (1979);
120. Peter Margulies, "Who Are You to Tell Me That?": Attorney-Client Deliberation Regarding Nonlegal Issues and the Interests of Nonclients, 68 N.C. L. REV. 213, 213 (1990);
121. Jacqueline M. Nolan-Haley, Lawyers, Clients, and Mediation, 73 NOTRE DAME L. REV. 1369, 1386 (1998);
122. Stephen L. Pepper, Counseling at the Limits of the Law: An Exercise in the Jurisprudence and Ethics of Lawyering, 104 YALE L.J. 1545, 1602-04 (1995).
123. See Ann Shalleck, Constructions of the Client Within Legal Education, 45 STAN. L. REV. 1731, 1743 (1993). See generally BINDER & PRICE, supra note 63.
124. See DAVID BINDER ET AL., LAWYERS AS COUNSELORS: A CLIENT-CENTERED APPROACH 33 (1991).
125. See Marygold S. Melli et al., The Process of Negotiation: An Exploratory Investigation in the Context of No-Fault Divorce 40 RUTGERS L. REV. 1133, 1157(1988). See generally CONLEY & O'BARR, supra note 3; Sarat & Felstiner, supra note 3;
126. Sarat & Felstiner, Law Talk, supra note 53; Felstiner & Sarat, supra note 53.
127. See Anthony V. Alfieri, Speaking Out of Turn: The Story of Josephine V., 4 GEO. J. LEGAL ETHICS 619, 620-628 (1991); Relis, supra note 3, at 166, 168. See generally Hosticka, supra note 3 (discussing poverty lawyers); Griffiths, supra note 53 (discussing divorce); Macaulay, supra note 53 (discussing consumer cases);
128. SARAT & FELSTINER, DIVORCE LAWYERS, supra note 4 (discussing divorce). Other observational data on divorce lawyers and clients has also found many lawyers reluctant to deal with "non-legal" issues or to engage these more personal concerns, which were often the most important ones to clients.
129. LYNN MATHER ET AL., DIVORCE LAWYERS AT WORK: VARIETES OF PROFESSIONALISM IN PRACTICE 68-69, 91-92 (2001).
130. It has been argued that most litigants' expectations are consequently deflated or shaped, and they are persuaded not to expect too much from the legal process and not to demand things such as emotional or moral vindication. See, e.g., DOUGLAS E. ROSENTHAL, LAWYER AND CLIENT: WHO'S IN CHARGE? 76-77 (1974) (discussing personal injury cases);
131. Herbert M. Kritzer, Contingent-Fee Lawyers and Their Clients: Settlement Expectations, Settlement Realities, and Issues of Control in the Lawyer-Client Relationship, 23 LAW & SOC. INQUIRY 795, 803-805 (1998) (discussing personal injury cases);
132. Richard J. Maiman et al., Gender and Specialization in the Practice of Divorce Law, 44 ME. L. REV. 39, 50 (1992);
133. SARAT & FELSTINER, DIVORCE LAWYERS, supra note 4, at 85, 106-07. Although some of these studies include litigant interviews, much research relies upon observational data and interviews with lawyers alone. The data from litigants in the present research suggests that simply because plaintiffs may cease to demand things overtly from their lawyers does not mean that they do not still have extra-legal aspirations for litigation.
134. See generally W.A. Bogart & Neil Vidmar, Problems and Experience with the Ontario Civil Justice System: An Empirical Assessment, in ACCESS TO CIVIL JUSTICE: BRIDGES AND BARRIERS (Allan C. Hutchinson ed., 1990) (discussing diverse case-types). But see Felstiner et al., supra note 2 (arguing that in reaction to various subsequent experiences and to what others say, do or expect, litigants redefine their complaints as well as the way they perceive injurious experiences).
135. See Anthony V. Alfieri, Reconstructive Poverty Law Practice: Learning Lessons of Client Narrative, 100 YALE L.J. 2107, 2118-2125 (1991); Sarat & Felstiner, supra note 3, at 116;
136. SARAT & FELSTINER, DIVORCE LAWYERS, supra note 4, at 85, 106-07;
137. Sarat & Felstiner, Law Talk, supra note 53, at 1663, 1664, 1671-76. Sarat & Felstiner's research was based upon observations and interviews with matrimonial clients in 40 cases in two American towns. They found that clients were given "law talk" by their lawyers in response to their questions. Lawyers described legal processes and actors in critical, cynical and negative ways, stressing limitations whilst at the same time attempting to be sympathetic to clients' situations and emphasizing their insider knowledge, connections, positions and/or reputations.
138. See, e.g., ROSENTHAL, supra note 68, at 63, 65 (discussing injury cases); Felstiner & Sarat, supra note 53, at 1672-76 (discussing matrimonial cases); Kritzer, supra note 68, at 803-05; Sarat & Felstiner, supra note 3, at 116; SARAT & FELSTINER, DIVORCE LAWYERS, supra note 4, at 85, 106-07. See generally, CONLEY & O'BARR, supra note 3 (discussing small claims cases).
139. See C. Campbell, Lawyers and their Public, in LAWYERS IN THEIR SOCIAL SETTING 195, 208-10 (D. MacCormick ed., 1976);
140. Clark D. Cunningham, Legal Storytelling: A Tale of Two Clients: Thinking About Law as Language, 87 MICH. L. REV. 2459, 2474 (1989);
141. Galanter, Adjudication, Litigation, and Related Phenomena, supra note 36, at 3. See generally CAIN, supra note 3.
142. See, e.g., Cunningham, supra note 3, at 1339-57, 1367-85; Felstiner et al., supra note 2, at 634-37, 645; Sarat & Felstiner, supra note 3, at 116-17, 125-28; SARAT & FELSTINER, DIVORCE LAWYERS, supra note 4, at 406.
143. MERRY, supra note 36, at 2-3, 4-5, 34; Sally Engle Merry, Culture, Power, and The Discourse of Law, 37 N.Y.L. SCH. L. REV. 209, 215, 218 (1992);
144. Susan S. Silbey & Sally E. Merry, Mediator Settlement Strategies, 8 LAW & POL'Y 7, 25-27 (1986).
145. John Lande, Toward More Sophisticated Mediation Theory, 2000 J. DISP. RESOL. 321, 328 (2000).
146. See, e.g., Susan J. Bell & Lawrence R. Richard, Anatomy of a Lawyer: Personality and Long-Term Career Satisfaction, in FULL DISCLOSURE: DO YOU REALLY WANT TO BE A LAWYER? 152-53 (1992);
147. Susan Daicoff, Lawyer, Know Thyself: A Review of Empirical Research on Attorney Attributes Bearing on Professionalism, 46 AM. U. L. REV. 1337, 1405 (1997); Guthrie, supra note 14, at 155-56, 158-59;
148. James L. Hafner & M. Ebrahim Fakouri, Early Recollections of Individuals Preparing for Careers in Clinical Psychology, Dentistry, and Law, 24 J. VOCATIONAL BEHAV. 236, 236-41 (1984);
149. Sandra Janoff, The Influence of Legal Education on Moral Reasoning, 76 MINN. L. REV. 193, 228-29, 234 (1991);
150. Russell Korobkin & Chris Guthrie, Psychology, Economics and Settlement: A New Look at the Role of the Lawyer 76 TEX. L. REV. 77, 87 (1997);
151. Leonard L. Riskin, Mediation and Lawyers, 43 OHIO ST. L.J. 29, 43-46 (1982);
152. Marjorie A. Silver, Emotional Intelligence and Legal Education, 5 PSYCHOL. PUB. POL'Y & L. 1173, 1198-1200 (1999). Research focusing upon attorneys' psyches also suggests that lawyers are predominantly left-brain dominant, indicating analytical orientation. See Guthrie, supra note 14, at 157;
153. Graham B. Strong, The Lawyer's Left Hand: Nonanalytical Thought in the Practice of Law, 69 U. COLO. L. REV. 759, 761-62 (1998).
154. Jean R. Sternlight, Lawyers' Representation Of Clients In Mediation: Using Economics and Psychology To Structure Advocacy in a Nonadversarial Setting, 14 OHIO ST. J. ON DISP. RESOL. 269, 323, 326, 342 (1999).
155. See Felstiner & Sarat, supra note 53, at 1456; Sternlight, supra note 76, at 324.
156. See Austin Sarat & William Felstiner, Law and Social Relations: Vocabularies of Motive in Lawyer/Client Interaction, in THE LAW & SOCIETY READER 406 (R. Abel ed., 1995) (discussing divorce cases). See generally Alfieri, supra note 67 (discussing poverty lawyers); Hosticka, supra note 3 (discussing poverty lawyers); Macaulay, supra note 53 (discussing consumer cases).
157. See Cunningham, supra note 3, at 1298, 1339-57, 1367-85.
158. Alfieri, supra note 67, at 2119.
159. See Mather & Yngvesson, supra note 3, at 780-781. It has been argued that the manner in which lawyers define litigants' problems leads to the unhappiness and frustration of litigants in the long term. See MATRUGLIO, supra note 37 (discussing injury cases); Jeffrey M. Fitzgerald, The Contract Buyers League and the Courts: A Case Study ofPoverty in Litigation, 9 LAW & SOC'Y REV. 165, 177 (1975) (discussing poverty litigation).
160. Paul Kay & Willet Kempton, What is the Sapir-Whorf Hypothesis?, 86 AM. ANTHROPOLOGIST 65 (1984).
161. See, e.g., Alfieri, supra note 67, at 2111; Sara Cobb, The Domestication of Violence in Mediation, 31 LAW & SOC'Y REV. 397, 436-37 (1997); Hosticka, supra note 3, at 600-04; Sarat & Felstiner, supra note 3, at 116-17.
162. Felstiner & Sarat, supra note 53, at 1460, 1463-64.
163. See RELIS, supra note 11, at chapter 9.
164. Clearly, the more critically funds were required to maintain lives subsequent to medical accidents, the greater importance would be ascribed to them in terms of litigation objectives.
165. As previously pointed out, gender may play a role in lawyers' sensitivity to plaintiffs' extra-legal needs. See supra Part II.B.
166. This has similarly been found for other case-types. See generally BALDWIN, supra note 5; JOHN BALDWIN, MONITORING THE RISE OF THE SMALL CLAIMS LIMIT: LITIGANTS' EXPERIENCES OF DIFFERENT FORMS OF ADJUDICATION (1997) (discussing small claims); Felstiner & Sarat, supra note 53 (discussing divorce); MERRY, supra note 36 (discussing family and neighbourhood disputes);
167. ROGER BRYANT HUNTING & GLORIA S. NEUWIRTH, WHO SUES IN NEW YORK CITY? (1962) (discussing automobile accident cases).
168. REZA BANAKAR, MERGING LAW AND SOCIOLOGY 7-8 (2003).
169. See Carrie Menkel-Meadow, The Trouble with the Adversary System in a Postmodern, Multicultural World, 38 WM. & MARY L. REV. 5, 6-7, 14-15, 19, 26-27 (1996).
170. See, e.g., Felstiner & Sarat, supra note 53, at 1459-60; MERRY, supra note 36, at 179 (commenting on expectations of the justice system).
171. Vincent et al., supra note 14, at 1612; RELIS, supra note 11 (providing evidence of various adverse consequences resulting from lawyers and litigants' disparate understandings and aims for litigation and mediation processes).
172. See Des Rosiers et al., supra note 49, at 433, 442. It has been similarly argued that the attributes of the adversary system as the "ideal type" of a legal system must be re-examined. See Menkel-Meadow, supra note 90, at 5, 7, 42.
173. See, e.g., Kimberlee K. Kovach, Lawyer Ethics Must Keep Pace with Practice: Plurality in Lawyering Roles Demands Diverse and Innovative Ethical Standards, 39 IDAHO L. REV. 399, 429 (2003);
174. Kimberlee K. Kovach, Good Faith in Mediation: Requested, Recommended, or Required? A New Ethic, 38 S. TEX. L. REV. 575, 619 (1997); Menkel-Meadow, supra note 62, at 9;
175. Carrie Menkel-Meadow, Ethics in Alternative Dispute Resolution: New Issues, No Answers from the Adversary Conception of Lawyers' Responsibilities, 38 S. TEX. L. REV. 407, 409-10, 428 (1997); Nolan-Haley, supra note 63, at 1372-73. Others too have discussed behavioral transformation of attorneys, focusing upon relationship and communication skills as well as listening, empathizing and problem-solving skills. See Guthrie, supra note 14, at 180-82;