Editor's Message

by David Rosen, Editor

ROOTING AGAINST OURSELVES

The title above is a capsule description of one of the paradoxes, and difficulties, of our job. Why are trial lawyers – especially personal injury lawyers – criticized? Here are two reasons: it is in our financial interest to shift blame for our client’s troubles away from the client and onto someone else; and it is in our financial interest for our client’s injuries to be severe. I think very different responses are appropriate to these two criticisms.

To the first, that we’re always trying to blame someone else, we can feel unapologetic. What critics deride as looking for someone to blame, we can rightly see as holding wrongdoers accountable. If a client is contributorily negligent, so be it, but much of the considerable good that trial lawyers have done for American society has been to identify hazards that could have been avoided and injuries that could have been prevented.

It is an everyday occurrence that in order to help our client, and earn a fee, we have to show that something that a defendant took for granted or let deteriorate was unreasonably dangerous. The effect of doing that is to increase safety for everybody.

And we all know that the legal system has a very effective response to efforts to place blame where it doesn’t belong. It’s called losing the case, and because we know that’s what happens to weak claims, we learn as we go along not to bring them.

But the other criticism is harder to brush off. The fact is that if our injured client gets better, that can result in a smaller recovery and, therefore, a smaller fee. What should we do about that? Pretend it isn’t true? That won’t work: it is true. Not always, to be sure: we have all had clients who need to be told that exaggerating symptoms is not only wrong, it’s harmful to their cause. But more than occasionally, bad news from the doctor is good news for the case.

So, what to do? I think the answer is, recognize the conflict and don’t shy away from either side of it. Yes, it can be in our financial interest – no use pretending that it isn’t -- for our client to find out that her condition is even worse than she feared. But that very fact gives us a unique opportunity to help our clients find ways to minimize the impact of their injuries.

When we encourage our clients to try going back to work, or steer them toward a therapy that may help them get better, they know that we are not doing it to benefit ourselves. Unlike a relative, an employer, a workers compensation carrier, or even a friend, we don’t need them to stop being a burden on us. They don’t have to apologize to us for being injured. When we encourage their efforts to rehabilitate or to make a successful adjustment to a disability, they trust us because we are in a narrow financial sense rooting against ourselves.

And it may be a secret to much of the public, but when we get to know our clients as we do when they come to us for help in a time of crisis, we really are rooting for them. Our deepest satisfaction as lawyers comes from finding ways to improve our clients’ lives, and we know from experience that it is always better to recover health and function than to be paid for losing them.

And we also know that, in truth, it is particularly gratifying to be helpful in a way that is truly altruistic.

What this means in practice is that at the same time that we are preparing to make a persuasive presentation of our client’s injuries, we need also to be helping the client mitigate those injuries.

And we can do that; we have a lot of experience. We can recommend therapists who are actually effective, not just (or not even) expensive. We can help clients with brain injuries succeed in school by putting them in touch with the right resources – even if that means that they get to live a more normal life. Especially if it means that.

So we root for our clients to do as well as they possibly can. We root against ourselves. The best possible reason to get less than a case is worth is for the case to become worth less because our client has improved. And when we help that happen, we’re just doing our job – because we’re lawyers and helping people is what we do.

Welcome to the first online edition of the CTLA Forum! This new format gives you much more flexibility - you can cut and paste, save material in your computer files, email articles to colleagues, steal stuff for your briefs. The list is endless. We hope you find it helpful and easy to use. Please send us your comments, positive and negative. Drosen@davidrosenlaw.com