Thursday, May 1

When families lose a loved one, do they want the cash or the courthouse?

It's the first time I've become emotional reading a research paper, but an article by USC academic Gillian Hadfield got to me. Sad movies sometimes do that too, but I'm usually safe around law school publications.

Maybe it was because of a mediation, only just completed, involving a young and troubled life taken. It's still raw and I just wasn't qualified to be the straw those barely functioning parents grabbed hold of.

So, don't say you haven't been warned - choose a rainy Sunday evening to settle in and read Gillian's 65 page
Framing the Choice between Cash and Courthouse: Experiences with the 9/11 Victim Compensation Fund.

Sure, it contains the usual research speak, you know - 'groups, sub-groups, narrative evidence' and stuff but there's a thousand human stories sitting behind all of that and, if you have been mediating for a while, you'll have come across them before - good people faced with making a money claim for an uncompensatable death and an uncompensatable emptiness.

But before you curl up in your favourite chair, watch this video (click anywhere inside the box);

In it the Special Master of the September 11th Victim Compensation Fund, Ken Feinberg, explains how he saw his task - that's important because I want you to reflect on how judges and lawyers see these things - a question of families 'comparing values, payout times and probabilities; choosing between the sure thing of a Federal fund and the lottery ticket of a day in court'.

Or is it something else?

Yeah, sure, the video and paper are full of stats - an incredible 98% of eligible claimants applying, only a handful suing - and that the Fund calculates the money by assessing;

economic loss (what would the victim have earned?)
+ non economic loss (how much suffering?)
- any insurance etc
= average death payout of $1.8m

And when an abstract of Hadfield's paper was circulated last week on an ADR list serve, one mediator's response was;

"... in a quick read, it seems Prof Hadfield is making a case for the filing of lawsuits as being a democratic and patriotic act, while mediation being somehow almost dishonorable, or robbing "the people" of an opportunity to engage in a civil and civic discourse. Not exactly what they taught me at Pepperdine...."

But I don't think that's really fair, the thesis is more complex than that... the research question was simple "How did people who had suffered an injury or lost a family member think about the choice between collecting money from the VCF and pursuing civil litigation?" and what Prof Hadfield found is that;

"The decision to go with the Fund was clearly for many a negative one, driven by a capitulation to reality and brute facts. For some, particularly women with children, the poor and the injured,reality was dominated by immediate financial need... it involved not an easy trade off between a guaranteed dollar payment and a gamble on a ‘pot of gold,’ but a deeply troubling trade off between money and a host of non‐monetary values that respondents thought they might obtain from litigation. These values included information from otherwise inaccessible sources the decision makers who determined airline and World Trade Center fire safety procedures, for example), accountability in the sense of public judgment about whether those on whom victims depended for their safety did their jobs, and responsive policy change—making sure that lessons were learned and heeded in the future...".

See what you think of it all - then come back here and post a comment - I know that the paper will help me respond more intelligently to parties when they anguish over 'valuing' a life, a hurt, a disappointment, a vacuum, an injury...


John Lassey said...


I have downloaded, but have not yet read, Prof. Hadfield's paper; however, I watched the Feinberg video this morning. Powerful stuff!

Mike Young said...

Geoff, thank you for raising this discussion and giving me a forum to expound on my short comment you quoted from above.

Granted, I’ve only read the abstract that was published as a stand-alone article in the Daily Journal, but here’s how I interpret it: Professor Hatfield is raising criticisms of the decision of those who have suffered in mass tragedies – such as the 9/11 terrorist tragedy and the Virginia Tech massacre – to choose settlement over litigation. She claims there is an increasingly widespread “impulse to avoid litigation” in American society, an impulse she sees as “troublesome.”

Instead, Professor Hatfield supports litigation as the cornerstone of American democracy – it is how we regular people can engage in true-self governance, how we as individuals can trigger the immense power of government to work for us.

“The real issues at stake in the trend to wholesale lawsuit avoidance are about democracy and the critical role that courts play in achieving the ideals of self-government in a public, accessible and open forum…. [¶]

“By becoming plaintiffs, the ordinary citizens who, to their horror, fate picks out as the victims of both accident and wrongdoing, take on the power of the governing state. They become entitled first and foremost to obtain information, under subpoena and oath if need be, from those they designate as potentially responsible or involved. They wield the power to set the agenda for public officials such as judges and the use of public spaces such as courtrooms. They obligate judges and jurors to review evidence, hear testimony and ultimately reach an authoritative and public judgment, based on the law, about the conduct of those they have questioned. What happens in the public courtroom, triggered by the decision of an ordinary citizen to set the wheels in motion, is not subject to political expedience or the avoidance by the powerful of spectacle or blame. It is democratic participation in self-governance at its highest ebb.”

Putting aside Professor Hatfield’s premise for the moment (is there really an increasingly widespread impulse to avoid litigation in American society? I think the court dockets would suggest otherwise), does the fact that American citizens have the power to trigger the judicial machine mean they are obligated to do so? Where litigation is not the best method of resolving disputes, does the fact that it constitutes “democratic participation in self-governance at its highest ebb” mean that injured parties have to utilize it? Isn’t it o.k. for the wife of a murdered attorney or banker, or the parents of a massacred student, to forego participation in democracy in order to put a personal tragedy behind them? Maybe they don’t need to blame the designer of the stairwell, or the University’s security detail, to heal and move forward with their lives. In fact, maybe litigation only drags out the suffering.

I guess my point is that as wonderful a tool litigation may be for connecting the American people to their government, there is nothing, and I really mean nothing, wrong with individuals choosing to resolve their disputes in ways that are outside the state’s judicial system, be that mediation, mass-tragedy-induced settlement funds, or an apology and a handshake. There will always be enough cases going to trial and through appeals to satisfy the public’s interest in a living law and the court’s role “in achieving the ideals of self-government in a public, accessible and open forum.”

Gillian Hadfield said...

Hi Mike,

Thanks for your comments. I agree with you completely that potential plaintiffs are not obigated to litigate out of a duty to their fellow citizens. The point of my paper is that some people are motivated by a sense of duty and civic participation to want to go to court and that the message they frequently receive from the legal system is that either this motive does not exist or that there is some failure of rationality in not taking the money. The concern I mean to raise is about the consequences not of some choosing, for private reasons, not to engage with the public court process but of the court process being discouraged and closed out to those who do want to pursue it. That, I think, entails a civic loss.

michael webster said...

Gilian writes: "The concern I mean to raise is about the consequences not of some choosing, for private reasons, not to engage with the public court process but of the court process being discouraged and closed out to those who do want to pursue it. That, I think, entails a civic loss."

Uh, I am civil litigator. There is only one outcome you get from the Courts: money.

You don't get information, you don't get engagement, you don't get reasons, what you get if you win is money.

If you win the trial, you get money.

That is it. Nothing more.

The promise of ADR is more, whether Feinberg delivered or not is an important question.

But an individual gets money and not explanations from the civil procedure.

(BTW, I litigate franchise disputes and constantly refer to the ideas in your paper Problematic Relations - which I also think serve as a great reason for mediation of most franchise disputes!)