New Hampshire Association for Justice - President’s Message - Spring 2024
By: Kimberly Kirkland
I love representing plaintiffs in medical malpractice and personal injury cases. I’m guessing many of you do too. That said, most lawyers choose not to do the work we do. In fact, most lawyers find our business model an anathema: they have no desire to take the financial risks and live with the financial uncertainty we live with. Moreover, most lawyers would abhor being seen by some as “ambulance chasers” or greedy trial lawyers. So why do we do this work? Many of us enjoy the freedom from the tyranny of the billable hour. Those of us who practice in solo or small firm settings are our own bosses: we answer to our clients, not to a corporate hierarchy. As personal injury lawyers we have the luxury of choosing our clients and cases. If we’re lucky, we get to be proactive in our cases, gathering proof through the tools of discovery. Building our cases has us exercising the trial lawyering skills we began to learn in law school and hone through years of practice. Employing this skill set, we call tortfeasors to account in depositions and trial; we go toe to toe with experts; and we use our verbal and written skills to persuade opposing counsel, adjusters, mediators, judges and juries.
But the aspect of trial work I find most rewarding and interesting is one we receive no training for: that moment during settlement negotiations when our clients confront the fact that money will never compensate them for their injuries and yet, they have to decide what “accountability” arrived at through a monetary settlement would mean to them. Because our clients are usually first-time litigants, they often look to us to tell them whether they should accept what’s being offered. Certainly, advising a client who is deciding whether to accept the defense’s last best offer requires us to assess the strengths and weaknesses of the liability and damage aspects of the case, and predict the likelihood that a jury will find in their favor. But the notion of “accountability” is even less susceptible to a mathematical calculation than an assessment of the likelihood of success before a jury. Will the client be satisfied with the outcome in a week from settlement? A year?
In my experience, accountability means something different to every client. Giving voice to the client’s story, including naming the tortfeasors’ negligence in a forum where the client knows the tortfeasor will have to listen, is the first step in holding a defendant accountable. The second part of accountability in a civil lawsuit comes in the form of money. Helping clients through the process of figuring out how money can feel like accountability or justice in some form is not straightforward. Certainly, a monetary settlement can represent a defendants’ acknowledgment of the harm they caused, and perhaps holds the promise that the defendant will learn from their mistakes. But whether and how a client who settles can feel like the money paid represents accountability or justice in the context of the injuries they live with every day is a complicated question.
Understanding what amount of money will allow a particular client to feel they have achieved some level of accountability and feel comfortable about accepting a settlement requires learning about the client’s life and values. I love this part of the work. Through the course of my representation, I try to learn about our client’s day to day life: What are the consequences of the injury that make life difficult? Are there devices, environments, changes to daily routines that could make life with these injuries easier to bear? What gives the client joy or distracts them from their limitations? What does respite look like given their condition? The more concrete the answers to these questions, the better the understanding of what amount of money would allow the client to make a meaningful change in quality of his or her life. A settlement can’t undo what was done, but often, if the client has come to accept that fact, we can push the defendant to a number that the client views as a representation of accountability.
For instance, one client we worked with suffered a life altering bowel injury. The client had elected not to live the rest of life with a colostomy, but as a result, had to be near a bathroom for 4 hours after eating. This limited activities and travel (even across the state) to see children and grandchildren. For that client, no amount of money could compensate for the change in their daily life. But thinking about using a settlement to buy a house with multiple bedrooms and bathrooms near children and grandchildren meant the client could be surrounded by family at home. For another client in their early twenties, buying a new truck and using the remaining funds to start a retirement account provided a sense of luxury and security. Reframing the “what is enough?” question to “what concretely could I do to make my life better?” allows a client to make sense of the settlement process and feel as though they were able to hold the defendant accountable.
When we are able to resolve a case for a number that we’ve determined can solve a problem facing the client or allow the client to make meaningful changes in their lives, I feel like the work I do is meaningful. Together with the client, we have achieved accountability that we can both feel good about.