New Hampshire Association for Justice - President’s Message - Winter 2024
By: Kimberly Kirkland
“It’s not fair.” It’s a phrase we begin to hear from young children almost as soon as they become social beings. The notion that the world should be fair seems to be encoded in our DNA. I recently read an essay titled “The Case for Ambulance Chasing Lawyers”¹ arguing that unfairness is a prominent feature of life at this moment in American history, including for those who have been privileged to avoid much unfairness in the past. All but the very wealthiest among us encounter unfair systems we can’t change on a daily basis.
We routinely accept nonnegotiable terms and conditions when we buy phone service, software, or a plane ticket. We accept banking fees and charges because we must – if we want to have bank accounts. We have no choice but to agree to forced arbitration of most claims when hired by employers. When we enter an emergency department, there may be a sign on the wall that the hospital does not employ the physicians, PAs and NPs staffing the ED. Notwithstanding that we only go to the emergency department when something is seriously wrong and, therefore, we are undoubtedly not focusing on signage, the hospital will claim that it is not accountable for mistakes made by these providers because we “saw” that sign on the wall. Like much of what we encounter in our economic lives, we can’t change these things; in other words, we lack agency. The authors of the essay posit that plaintiffs’ lawyers working on contingency fees in antitrust cases provide an opportunity to restore agency and reset the economic fairness balance.
Citing a Washington Post poll, authors Lee Hapner and Matt Stoller posit that repeated experiences of loss of agency have made half of American voters think that life is worse than it was 50 years ago and that the system is rigged against them. They assert that the experience of loss of agency in our economic lives has resulted in a phenomenon of “learned helplessness.” They define learned helplessness as “the result of experiencing repeated traumatic events without the ability to do anything about them.” They note that learned helplessness is a “key ingredient in depression” and that it is the lack of agency that makes the trauma unbearable. In their article, Hapner and Stoller suggest that government regulation and enforcement agencies have failed to address much of the pervasive economic unfairness in modern life. As a result, they posit that private plaintiffs’ lawyers handling antitrust cases on contingency fees are currently one of the only functioning mechanisms for striking the fairness balance, and are therefore fundamental to the current American economy. Hapner and Stoller argue that these lawyers, who work on contingent fees (“ambulance chasers”), are an important antidote to learned helplessness.
As lawyers who bring civil cases against drunk drivers, negligent doctors and hospitals, businesses with unsafe premises, and employers who don’t maintain safe working environments, NHAJ members counter the phenomenon of learned helplessness every day. For the most part, we represent individuals who have suffered some kind of physical, emotional or financial trauma. Our clients can’t change what happened to them, but they seek us out in an effort to gain agency vis-à-vis the tortfeasor. Personally, I find that this is what makes the work I do rewarding. My medical malpractice clients have often had their lives turned upside down through no fault of their own, e.g. a sponge left in the body during surgery, a misread MRI, a failure to diagnose a DVT. They seek representation not because they think we can undo what happened to them, but because it feels unjust to be suffering the consequences of someone else’s negligence. They often don’t know exactly what the justice they seek would look like but they know they need to do something in order to move on in their new reality. In my experience, a large part of what these clients need is to feel they have some agency in calling the tortfeasor to account. As trial lawyers we provide that by listening to their stories and framing them as causes of action that seek to hold the wrongdoers to account. We further our clients’ sense of agency when we include them at every stage of the litigation process, making our work transparent and accessible. Our clients read the depositions we take of the defendants and they feel agency; they read our expert disclosures and expert depositions and they feel agency; and they hear us articulate the tortfeasors’ wrongs and the resulting consequences at mediation and/or trial, and it gives them agency.
AAJ focus groups are telling us that potential jurors are more favorable to plaintiffs’ personal injury, medical malpractice, and products liability cases than they have been in the past. There have been a number of remarkable plaintiffs’ verdicts reported around the country and in New Hampshire over the last year. Perhaps jurors who live in a world where they find that they often lack agency themselves are coming to appreciate plaintiffs’ lawyers whose role it is to take back agency for those who suffer unfairly.
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