Understanding Mediation, Part I: Roots

As must be immediately apparent, the word “mediator” and “immediately” have a common root: medius, meaning “middle.”  To speak of something as “immediate,” is to say that there is no intermediary or intervening member, medium, or agent, that there is actual contact or direct personal relation. Mediation involves a mediator or intermediary and, consequently, at its core, is antithetical to the concept of immediacy.  That, I contend, is why it works.

Mediation is, quite literally, the process of bringing people together by keeping them apart.  In the context of legal disputes, the parties involved have demonstrated an inability to communicate effectively so as to resolve issues between them.  This is hardly surprising since the word communicate derives from the Latin communicare, meaning “to make common.”  The parties, to their own detriment, have been unable to work together to achieve their common good.  One of the principal tasks of the mediator is to create an environment in which the parties can work independently to achieve the common good by removing from the negotiation process the interference of dysfunctional communication.

In this context, the mediator acts as a conduit and translator actively listening to the desires and concerns of each party and, free from issues of ego, personality, or self-interest, transmitting clear and effective messages.  The need only – indeed, should only – transmit across a narrow band in order to be effective.  The static of past wrongs and misunderstandings must be systematically screened out to produce a sanitized, but effective, message with a focused purpose: to resolve the dispute.  The direct personal interaction which has engendered the dispute is filtered through the mediator, leaving only the residue of addressable concerns.

Entering the Practice of Law: The Optimistic Profession

After over thirty-five years in the practice of law and the pursuit of justice, I have found myself reflecting of late upon what it means for a young person to become a lawyer.  Perhaps my having been invited to serve as “hooder”* at the December 2013 Commencement for Seattle University School of Law has pulled my thoughts in this direction.

The recognition given to the newest law graduates is well-deserved.   The December graduates consist of many students who, working during the day and supporting families, have completed their legal education in three or four years of evening classes.  In addition to class attendance, students have read and puzzled over thousands of legal opinions, written countless briefs and memoranda, competed in oral argument, matched wits with colleagues and professors, all the while struggling to balance the demands of law school and the demands of career, family, relationships, and meeting the life challenges that face us all.

This perseverance, commitment, and focus is laudable in and of itself.  In the end, however, where do they find themselves?

The short answer?  In a wonderful career which at its heart is the most optimistic of professions.

To be sure, too many times, students have held on to their commitment through fatigue and financial impediments, arriving at the finish line of their formal legal education, exhausted, impoverished, and dispirited.  During economic downturns when finding employment is difficult, it is easy to forget what is was that drove the decision to enter law school in the first place.  For some, graduation is a product of dogged determination, no longer partaking of the joy of discovery and the satisfaction of high achievement that may have been manifest at the outset.  Traditional legal education can often compound the doubt that students feel.

Imagine, if you will, a plumbing school where you learned about pipes, valves, traps, fittings, solders, basins, faucets, fixtures, and drain covers, but you never learned about water!  (Plumbing does, after all, come from the Latin word for “lead,”  Plumbum – hence the chemical symbol for lead in the Periodic Table is Pb. The Romans used lead pipes because the metal was malleable and “plumbers” were “lead workers.”.)  In the end, learning about plumbing without focusing on water seems silly because plumbing systems are designed as water delivery systems.

In the same way, law schools for too long focused on laws, statutes, ordinances, regulations, rules, procedures, legislation, and court decisions, without talking about justice.  In the end, learning about law without focusing on justice seems silly because legal systems are designed as justice delivery systems.

What should renew and refresh the hopes, dreams and optimism of new graduates is the knowledge that they are now members of that one half of one percent of the American population whose prime commitment is to making justice happen.  In America, among all nations, law has a special place. The west pediment above the main entrance of the U.S. Supreme Court (the side facing the U.S. Capitol) bears this inscription: Equal Justice Under Law.  This is altogether fitting because America, is the country that law built.  Or, perhaps more boldly put, it is the country that lawyers built.

Lawyers constitute approximately one-half of one percent of the population, yet over half the presidents, nearly sixty percent of United States Senators and nearly forty percent of Representatives, have legal training – to say nothing of the third branch of government created under Article III to the Constitution (the Highest Law in the Land), the Supreme Court.  Of the fifty-five Founding Fathers in the Constitutional Convention of 1787, some thirty-five benefited from legal training, although not all made their living as lawyers (and some were judges).  During the Civil War, which defined our nation, leaders of both Union and Confederacy were lawyers: Secretary of War for the Union Edwin Stanton and Secretary of War for the Confederacy Judah Benajmin – to say nothing of Abraham Lincoln, himself.  Given our demographic diversity, our numerous languages and cultures, equal justice for all under a system of laws is a unifying aspiration that binds us together as a people.  Our Bill of Rights, rightly viewed, is supported by legal technicalities.  Consider this: the Fourth Amendment protection against wiretapping by the government is premised on the legal fiction of an illegal “search and seizure” of electronic signals!  Note please that our Founding Fathers said nothing prohibiting the government from eavesdropping.  Yet, it is such legal technicalities upon which our fundamental rights rest.

The practice of law is inherently optimistic.  At its base, it is premised upon the notion that, in a chaotic universe, on a rocky world comprised of heavy elements born in the hearts of supernovae, warmed by solar nuclear reactions eight light minutes away generating energy at the rate of roughly one hundred billion H-Bombs a second, complex organic beings interact in complex ways and – get this (!) –  ordering principles can be identified and put to use.  Law is the instrument of ethics and morality imposing, through criminal and tort law, expectations for human behavior in society.  Religious traditions of charity, karma, penitence, forgiveness, and redemption resonate with legal constructs for compensation, restitution, justice, equity, and rehabilitation. Both law and religion wrestle with issues of reward and punishment.  The fact that the human condition is not susceptible of simple answers should not dissuade us from approving of a system of justice taking on such questions as they present themselves in the real world.  Nor can we rightly blame lawyers for the uncontrollable complexity of the modern world. 

Service to others, at the heart of both civil and religious traditions, is the essence of the legal profession and is an inexhaustible font of inspiration and satisfaction.  The lawyer has the rare opportunity to assist clients in their private travails and their public trials.  The vast pageantry of human virtues and follies parade before the eyes of the lawyer providing an unparalleled opportunity for constructive engagement, education, and personal growth. The variety of experiences available is, to my mind, unparalleled in any other profession.  What is more, discovery and change are but one case away: the transaction costs of re-tooling one’s practice remain remarkably low.  The work of the lawyer is steeped in the quirks and character of humankind, allowing the lawyer to be both human and humane, passionate and dispassionate, learned and blessed with the common touch. It is an optimistic profession founded on the principle that things can be improved and that, in the worst of situations, there is a glimmer of hope for betterment.

Matthew Arnold’s Dover Beach concludes:

Ah, love, let us be true

To one another!  For the world, which seems

To lie before us like a land of dreams,

So various, so beautiful, so new,

Hath really neither joy, nor love, nor light,

Nor certitude, nor peace, nor help for pain;

And we are here as on a darkling plain

Swept with confused alarms of struggle and flight,

Where ignorant armies clash by night.

 For this lawyer, decades into the practice, amid the thoughtless denigration of the profession, it is important for young lawyers to know this: whatever the truth of Arnold’s world, the practice of law in the pursuit of justice can be a beacon, seeking certitude, peace, and help for pain, various, beautiful and new, heralding the promise of dawn.

* -  A hooder is the person designated at the graduation ceremony to slip the portion of  the academic regalia known as the “hood” over the graduate’s head, representing the mark of having attained the J.D (Juris Doctor or Doctor of Laws) degree. The wearing of a colorful hood is reserved for those individuals who have attained advanced academic degrees beyond that of the bachelor’s degree. The hoods are often lined with the official colors of the university or college conferring the degree, edged with velvet of the color appropriate for the degree which, in the case of law, is purple. These ceremonial garments date back to the time of medieval scholars in the first universities.


Settling Your Case: How to Think About It.

At some point during your case in litigation, you, as the client, are likely to be confronted with a question: should I settle?

This question can never be taken lightly and almost always brings to the surface many unresolved feelings about the wrongs you suffered that gave rise to the case in the first instance. It is likely, moreover, that since the underlying wrong has occurred, the legal system has imposed its own burdens and stresses.  Even Shakespeare’s Hamlet, in his soliloquy, recognized “th’ oppressor’s wrong … the law’s delay,” as central to the human experience.  It is impossible to fully appreciate the anxiety, stress, and derangement of normal sensibility engendered by the legal process without experiencing it oneself.  For too many, the prolongation of legal process results in a new “normal,” but one bereft of lightheartedness and joys and marked by worry and obsession.  For those whose personal philosophy anticipates resolution of matters “on the merits,” the process of litigation can not only be a rude awakening, but do positive violence to a core value.

As to this last remark on personal philosophy, I can speak from experience because I hold the belief that, although it cannot be shown that “life is fair,” fairness is an important force in the world of human events and that we should act as though issues can be resolved fairly. I suppose the death of innocents, mass starvation, children’s afflictions, famine, disease, and natural disasters have weaned me from the idea that “life is fair.”  It is hard to accept with equanimity the death of thousands of children daily simply because they are too poor to live – and I, for one, cannot do so.  Elie Wiesel in Night describes his loss of faith in the face of the horrors of the Holocaust.  Does this mean that we can hope for no justice at all?  No, it does not.  My experience with our system of justice persuades me that some measure of justice is attainable, but that “perfect justice” in our system is necessarily diluted and compromised by many factors.  I have faith in the integrity of our judges.  I have never seen what I knew to be a corrupt decision, although all people, judges and juries alike, have their predispositions and prejudgments.  I have, however, seen many decisions, by judges and juries, that were compromised by lack of comprehension, lack of resources, lack of diligence, or, perhaps, lack of nerve, even where they were not compromised by poor presentation of incomplete evidence.  This brief statement of personal philosophy is not irrelevant to the question of settlement, because settlement necessarily entails delegating decision-making to another in the hope that justice can be done.  If we conclude that the quality of justice available from the “system” is impaired, we cannot rest easy with the decision to leave it to the jury and we may wish to wrest from the system what justice can be had, although degraded far below the justice of our aspirations.

For a substantial number of litigants – and I speak from thirty-five years of experience as a trial lawyer – the experience of litigation is one of the most demanding and challenging life presents.  I have represented strong, capable people who handled stresses in their normal lives with relative ease, who literally “fell apart” when faced with litigation.  This is not limited to personal injury claimants or plaintiffs, but also defendants.   How you have adapted to litigation may affect how you process the question of settlement.

For some, the prospect of settlement is so alluring and the thought of further prolonging litigation is so distasteful that almost any settlement will suffice.  Many such clients abandon the notion that justice of any sort can be achieved and seek to end the conflict at all costs.  They will be well-served by an attorney who can make sure they get as much “justice” as can be had with as little disruption of their lives as possible.  Other clients, having adapted to the new “normal” of litigation, find the idea of settlement distasteful or even dishonorable and, losing sight that litigation is a means to an end (that end being some measure of justice), find it difficult to bring an end to the conflict, even when victory is at hand.  For these clients, it will be important for the attorney to provide them with insights into the legal process so they can properly assess the costs and benefits of continued litigation as opposed to settlement.

This second group of clients pose special challenges to themselves and their counsel.  It is almost as if, being rescued from a burning house, they wish to run back in to salvage some personal effects that are already lost.  They have adapted to a “war footing” and have lost sight of the limitations of the system to produce perfect justice, preferring instead contention for its own sake. Abraham Lincoln once said: “No man who is resolved to make the most of himself can spare time for personal contention …., Better give your path to a dog, than be bitten by him in contesting for the right, not even killing the dog, will cure the bite.”  Dale Carnegie quotes the Boston Transcript for this bit of verse:

Here lies the body of William Jay,

Who died maintaining his right of way –

He was right, dead right, as he sped along,

But he’s just as dead as if he were wrong.

In considering settlement the choice is never between “perfect justice” and the “settlement.”  The choice is, rather, between the uncertain and imperfect justice of the courthouse and the available settlement.  Let me use two metaphors that may suggest the quandary for the client considering a settlement:  the “Let’s Make a Deal” metaphor and the “waiting for a bus in the rain” metaphor.

You may, perhaps, remember a television game show called: “Let’s Make a Deal.”  At some point, one of the audience members may be given a choice: “the cash in the hand” as the host gives them more and more cash or “the box on the stage,” often the choice of  a prize concealed on the stage behind one of three curtains, or behind “boxes” onstage.  The audience member is asked to choose between, say, $500 (which today might be the equivalent of $1,000) or the opportunity to choose the unknown prize on stage.  Behind two of the three curtains are likely to be booby prizes (e.g  live animals, fake trip, giant article of clothing, large amounts of food,  a unicycle that can only be ridden on stilts, etc.) and the third “a fabulous all-expense paid trip to Paris” or other prize valued at several thousand dollars.  The decision is likely to be governed by how “risk-averse” the contestant is.  Amid cheers of the crowd urging the contestant to forego the certain cash for the risk (they lose nothing), some contestants are happy with the cash, some take the risk.  The cash has much to recommend itself.  The contestants have had an entertaining experience in New York City, have been on TV for all their friends at home to see, and can walk away with enough cash to offset the costs of their vacation, to have several extravagant evenings out, and are definitely “winners.”  They may have the nagging feeling that they could have done better, but they made a sober choice that puts them ahead.  Others pick one of the three curtains or even one of two curtains and either are good sports about the booby prize or they are delighted with the fabulous prize.

Going to trial, like choosing the “box” or “curtain” on stage, has irreducible risks and expenses.  These risks and expenses are certain.  Choosing trial is invariably more prolonged, expensive and risky.   There are risks of a mistrial or hung jury, both of which require re-trial at a later date, there is the certainty of expense for witnesses and experts (if any), the anxiety and preparation for trial, and the risk of a poor outcome or appeal, or both.  With an appeal one is certain to have further expense, delay and risk, particularly in areas where the law is not well-established.  Appellate review may lead to your having a successful outcome at trial reversed or remanded for further proceedings or a new trial.  It goes without saying that the greater your success at trial, the greater the likelihood that your adversary will be motivated to appeal or challenge the judgment.  Of course, you can also win and win big. But, to be fair, for every “big win,” there is a “big loss,” and everything between those two extremes from results worse than the settlement offered, to results that, after costs, net about the same, to results that are only slightly more favorable, to more favorable outcomes.  You don’t know in advance how it will play out.  You do know that you have the certainty of increased expense, delay and great uncertainty.  Do you take the settlement (cash in the hand) or go for the trial (box on the stage)? 

I dimly recall an aphorism attributed to a Chinese philosopher, but I have been unable to confirm its provenance.  It goes something like this: “Justice should not be so certain that any man can go before the magistrate without great apprehension.”  I take its meaning to be, in part: justice is uncertain and it is good that this is so, since it encourages us to resolve contentions as best as we can among ourselves.

The second metaphor suggests the choice between trial and settlement is like waiting in the rain for a bus.  While you wait, you are getting wet.  Time is not a neutral fact.  The passage of time adversely affects you.  A bus stops, but you must decide if the bus takes you “in the right direction” or drops you “close enough” to your destination.  How many buses do you let pass in the hope that you will find one – if one exists – that takes you directly to your destination?  How long can you wait?  And, remember, there may not be a bus that takes you precisely where you want to go.  Eventually, as with a trial, you get on a bus – but there is no guarantee that the bus you get on will actually take you closer to your destination than the bus you earlier let go by.

 In the same way, if a settlement is refused, you must wait still longer.  The passage of time is not neutral and prolongs the expense, anxiety and uncertainty of litigation.  How many settlements do you let pass in the hope that you can get one that gives you everything you want – if such a settlement is ever attainable?  How long do you wait?  In the end, the choice of trial may not get you any closer to your aspirations.  There may not be any bus that actually takes you to your destination. 

There may always be a walk you have to take on your own to cover the last distance to “perfect justice.”  Or, as John F. Kennedy said in the closing words of his inaugural address: “[H]ere on earth, God’s work must truly be our own.” 

Emotions in Your Case


Plutchik’s Wheel of Emotions, above, an extremely useful tool,  may be found at:


Anger and loathing are emotions that seldom, if ever, play well in the courtoom.  I believe that this is, at least in part, because these emotions are second- level feelings that do not reveal the authentic underlying feelings and are, therefore, perceived as disingenuous or offputting.

Anger, for instance, is often a reaction to pain or grief.  A party who manifests anger and loathing and other negative emotions in the courtroom does so at the risk of alienating or distancing the jury.  I have observed this in action.   The body-language of the jurors was impossible to mistake: when the party-witness was angry, they drew away; when polite and measured (in the face of harsh interrogation), they drew closer.

Try to explore joy, sadness, fear,and awe before yielding to rage and loathing. A jury will feel closer to a party coming to terms with loss, but positive, than a party who is angry and contemptuous, however understandable such negative feelings may be in the face of the injustice suffered.  

A positive stance is a healthier and happier for most parties.

Preparing to Testify at Your Deposition or Trial: Knowing Your Safe Harbors

Malcolm Gladwell, in his 2008 work, Outliers, posits that the “Ten Thousand Hour” Rule is a necessary predicate to achieving mastery and greatness in a field Ten thousand hours is about five years of full-time employment. . I start off with this prerequisite for peak performance to point out the obvious fact: virtually no one has the opportunity to invest this much time in becoming “excellent” as a witness in their own case!

I know what some of you are thinking: I have had lots of experience with public speaking; I have observed testimony of others, in real life and on television; I teach classes or practice as a lawyer or run meetings. Unfortunately, as I have told many clients before: “There is a big difference between watching a hanging and being hanged.” The skill sets you have acquired in various life experiences and walks of life may be helpful, but those skills do not fully transfer to the skills required to providing testimony in your own case.

Whether a plaintiff or defendant, emotions run high for a witness in his or her own case. As we know, high emotion clouds intellectual function. The idea that you will be operating with cool efficiency in a deposition or trial where things that are important to you are at stake may simply not be well-founded. What to do?

Well, although neither you nor I have put in our “Ten Thousand Hours” as a witness in our own case, in my thirty-five years of legal practice, I am close to having achieved the requisite investment of time in attending and preparing clients for depositions and testimony. I have already addressed some of the basics. See Preparing for Your Deposition:Basic Rules, March 2013. There are distinctions between depositions and trial preparation as well. For the point of this entry, however, I would like to simply set out ONE rule that will assist you do your best job testifying on your own behalf.

Know Your Safe Harbors. There are some subject matters respecting which you are the “World’s Greatest Expert.” I advert now to an area to which you have privileged and exclusive access. This is an area where it would be strange for someone to even contest your authority. Facts are generally known and even intimate facts are often subject to refutation by someone or some kind of objective evidence. Your feelings, thoughts, sensations, perceptions, and memories are yours alone. If you were to state: “I went out to dinner last night” someone could dispute that fact, as personal to you as it might be, and other witnesses might share their observations of what you did last night. But, if you were to say: “I am not feeling well” or “I have a headache,” it would be positively bizarre for someone to respond with “Yes, you are” or “No, you don’t.” The areas where your testimony is beyond questioning, respecting which you are the World’s Greatest Expert, are what I call “Safe Harbors.”

So long as you are describing your thoughts, sensations, perceptions or memories, you are in a Safe Harbor. The rules of evidence even make an exception to “hearsay” based on present sense-impression, because it is accepted that when one is describing what one is perceiving at a given moment that it is generally more trustworthy. The more time you spend in your Safe Harbor during a deposition, the less time you will be exposing yourself to effective cross-examination.

Staying in Your Safe Harbor Describing Personal Injuries. Although you are in a Safe Harbor when describing your sensations of pain, physical limitations, activities that seem to exacerbate symptoms, a plainfiff is seldom in his or her Safe Harbor when describing their medical diagnosis, prognosis, or the cause of their symptoms and limitations. You are almost always best off referring to medical records or physician testimony before hazarding anything more than an “imperfect layperson’s understanding” of the mechanism of your condition.

Many medical conditions are purely subjective – that is, the conditions may lack any objective findings. Such conditions may include: pain, anxiety, headache, dizziness, nausea, fatigue, etc. That is not to say that there are no objective findings that correlate with these symptoms some of the time. For instance, a brain tumor can be seen on imaging studies, yet the headache cannot be seen and, indeed, may be experienced from many causes other than a brain tumor. Purely subjectively experienced symptoms are in the core of your Safe Harbor. “I had a crushing headache more painful than anything I had ever experienced before.” This sort of statement is difficult to refute. I say “difficult,” not impossible, because there is one witness who is able to be used to impeach your statement regarding the uniqueness of your subjective experience: you, yourself, in past depositions, testimony, diaries, Facebook entries or medical reports.

Although medical records may have described “headaches” or “migraines” before the collision, it is often the case that these earlier episodes were distinguishable by the frequency, intensity, or quality of the pain. Note that the location of the pain is subject to contradiction or refutation if you, yourself, described a similarly located pain in the past. Let’s try an example. Since you sustained a head injury, you have terrible migraines, for example. You are welcome to say: “I have never experienced pain this bad before.” You become vulnerable, however, if you say: “I never had left-sided head pain like this before.” Why? Because defense counsel are experts at examining past medical records and finding pre-existing conditions. If you previously reported “left-sided head pain,” your Safe Harbor today becomes vulnerable to your own past “Safe Harbor” testimony! Put another way, in your Safe Harbor, you and you alone are able to refute your statements about your sense-impressions.

Statements about current-sense impressions and what you are able to recollect today are largely invulnerable to attack. Statements that imply “uniqueness” of sense-impression previously reported (as noted above) or which differ from your previously reported sense-impressions are vulnerable with potentially serious consequences. A simple example of the latter circumstance will suffice. If you say when you looked up the traffic light was “red” – others may disagree, but they cannot dispute what you report having seen as your sensory impression. If you, on a previous occasion, however, gave a statement that the light was “yellow,” then you have effectively contradicted yourself by offering two different and irreconcilable sense-impressions, thereby undermining your own credibility.

Medical records, because they may contain your own past reports and statements improperly recorded, carelessly transcribed, or simply forgotten, give rise to the greatest vulnerability. Unfortunately, medical records are often given greater weight than they deserve. We know that medical records are often mistaken and inaccurate. This should be no surprise since they are often dictated or transcribed after the events they describe, imperfectly reviewed, and may often reflect misunderstandings in obtaining patient history that cannot be soon corrected because the patient – the person the record concerns – seldom sees the record until years later. There a procedures for having your records corrected. Use them.

Staying in Your Safe Harbor Describing Facts and Events. This is a much more difficult proposition since facts, being objective, are susceptible to dispute by others. Yet, any time you are testifying about facts and events that occurred in the past, you are testifying based upon your memory. Every answer is necessarily “to the best of my recollection.” If your recollections are disputed or shown to be inaccurate, your trustworthiness as a witness may be greatly impaired. It must be recognized that the Safe Harbor for facts is necessarily much narrower than that for personal sensations. While one’s sensation of having a headache may be beyond effective challenge, the quality of one’s memory, also subjective, has much to do with your credibility as a witness. As a general rule, the more certain you are regarding the accuracy of your recollection of events, the more devastating is the evidence showing your recollection to be inaccurate.

There is only one remedy to this situation: know what you know and know how certain you are about what you know. Do not be trapped by the idea that questions should be answered, “Yes” or “No.” That ancient rule of thumb for witnesses is simply a reminder to answer the question without volunteering extraneous information. Saying “Yes” or “No” when the appropriate answer is “I can’t be sure” or “I don’t know” or “I think so, but I would need to see my report to refresh my recollection” is the royal road to being impeached and discredited.

It is important that you not let your pride get in the way of admitting when you simply cannot accurately recall a fact or event. Have the humility to know what you know and how certain you are about what you know. Know when you are in your Safe Harbor.

The Courtroom as Stage. (Stage fright edition.)

Many times I find myself preparing witnesses for testifying at trial and realize anew just how unusual and fearful an environment the courthouse can be for honest men and women. Although popular culture tells us that an honest person has nothing to worry about and therefore has no reason to be nervous, this is not the entire story. I have observed many honest men and women trembling with fear when on the stand.

People, especially honest ones, can find plenty to worry about if they are called to testify. Let’s list a few: fear that one might make a costly mistake; fear that one might be tricked; fear that one’s voice, memory, nerve will fail; fear that testimony might let a friend, family member, loved one down; fear that the testimony might prove embarrassing, have adverse social consequences, or might not represent the witness in the best light; fear of being criticized or demeaned; fear that one’s testimony will hurt one’s case; conflicts between the obligation to tell the truth and other obligations or loyalties; and, of course, fear of public speaking.

Let’s consider fear of public speaking, the last in the list above. Comedian Jerry Seinfeld reportedly quipped that the fear of public speaking ranked higher than the fear of death, concluding: “This means to the average person, if you have to go to a funeral, you’re better off in the casket than doing the eulogy.” Public speaking , according to a number of surveys, ranks high among phobias. I cannot vouch for the methodology of the surveys, but according to a study cited in David Wallechinsky, Irving Wallace and Amy Wallace’s book, “The Book of Lists,” the fear of public speaking ranks number one in the minds of the majority of people, based upon a 1993 survey of 3000 people conducted by the polling firm Bruskin-Golding. Their ranking:

Speaking before a group 41%
Heights 32%
Insects & Bugs 22%
Financial problems 22%
Deep Water 21%
Sickness 19%
Death 19%
Flying 18%
Loneliness 14%
Dogs 11%
Driving a car 9%
Darkness 8%
Elevators 8%
Escalators 5%

Dr. Michael Telch of the Laboratory for the Study of Anxiety Disorders (LSAD) in the Department of Psychology at The University of Texas at Austin is quoted as having said: ““The biggest fear is public speaking, with 15 percent of American experiencing a dramatic fear of it …. People have had to turn down jobs, and certainly students have dropped classes because of it.” See Newswire Today http://www.newswiretoday.com/news/17334/]

According to Mayo Clinic psychiatrist, Daniel K. Hall-Flavin, M.D., “Fear of public speaking is a common phobia. It can range from slight nervousness to paralyzing fear and panic. Many people with a fear of public speaking avoid public speaking situations altogether, or they suffer through them with shaking hands and a quavering voice. But with preparation and persistence, you can overcome your fear.” Preparation appears again and again as the solution. See, also: Discovery: Fit & Health [http://health.howstuffworks.com/mental-health/anxiety/countering-all-the-anxieties-that-plague-us-from-fear-of-flying-to-public-speaking3.htm]

It is an elementary principle of human psychology that high emotion clouds intellectual function. High anxiety can result in all manner of problems: panicky misstatements, rushed testimony, inability to give thoughtful, cogent responses, poor memory and impaired recollection, going “blank.” Moreover, many clients and witnesses are anxious about being anxious, fearful of the foregoing litany of problems.

Many clients, especially those familiar with public speaking or courtroom procedures, may feel that no particular training is required and that they will have a natural “aptitude” for testimony. I can attest to the fact that, even if this were true, it would not be sufficient to achieve the best possible courtroom testimony. Put another way, as I have jokingly said to clients: “Going to a hanging and being hanged are entirely different experiences.”

Many lawyers, for instance, having seen testimony, assume that they, themselves, would make fine witnesses. Based on my experience, this is not the case. Like many other things in life, being a witness is a specific skill that is often not developed as an unintended consequence of other life activities. It must be practiced. Effective practice involves: attention, exposure, feedback, and repetition.

Attention requires the active participation, without competing distractions, of the witness. Adequate time, focus, and openness to correction. An over-confident witness can be incorrigible since he or she will simply refuse to commit the attention required. A witness with anxiety, willing to commit to preparation, can end up being a superb, credible, effective witness.

Exposure requires that the attorney, to the extent possible, carefully expose the witness to elements of the testimonial experience: substance, procedure, and environment. This may mean having the witness dress as they would for trial, act as though they are giving testimony, prepare before witnesses, and even visit the scene of the testimony, whether the conference room (for a deposition) or the courthouse, all the while being asked about the substance of probable questioning, and being familiar with procedures such as objections, instructions from the court, the location of the court reporter, examination, cross-examination and questions from jurors. A witness for a videotaped deposition should be prepared for videotape – to be seen and heard.

Feedback means that honest, credible, effective testimony should be reinforced and that testimony appearing to be less than honest, credible, and effective, must be discouraged. A constructive feedback loop, encouraged by positive reinforcement, must be established to maximize improvement. Praise and appropriate constructive criticism, combined, for instance, with periodic review of videotaped testimony can be a powerful tool for teaching and learning.

Repetition, as is obvious, involves repeated exposures to increase comfort and familiarity with the testimonial experience combined with repeated feedback until a consistent level of testimonial excellence can be approached, if not attained. In the end, a trial consists largely of oral testimony and exhibits. It would be foolish to allow the testimonial aspect of a case to go unattended. Yet, in the press of motion practice and case preparation, all too often attorneys fail to dedicate adequate time on witness preparation.

The plaintiff, for instance, is a star witness in his or her own case. Being honest is essential – but it is not sufficient in and of itself. The witness must not only be honest, but must also appear honest. Think of the courtroom as a stage. Actors wear stage makeup. Why? Because the bright lights of the stage, tend to wash out color; too little powder and skin oils will break through quickly resulting in unwanted shine. In other words, under the heat and light of the stage, makeup is needed just to appear normal. Similarly, in the courtroom, preparation is needed just to appear normal. The trial experience is unlike any other. Adequate preparation should be the object of careful, focused attention, not an afterthought.

In Good Hands with the Insurance Company? Until You File a Claim!

In the early 1990′s, a new economic model for defense of insurance claims was developed which has taken hold as the dominant paradigm for insurance defense of motor vehicle collisions. It was at that time that Allstate Insurance retained the McKinsey Co. to completely redesign its core claims practices in order to enhance profitability. McKinsey & Co.’s CEO, Jeffrey Skilling, later of Enron, made a number of recommendations to revamp Allstate’s core practices including eliminating the element of human choices in claims adjusting, using a computer program called “Colossus” to dictate what could be offered on any given case, thereby creating uniformity amongst adjusters on all cases.

In the highly competitive insurance industry environment, the traditional paradigm of making reasonable offers on injury claims where liability was clear, like the rear end impact-injury in this case, was replaced with a process whereby a claimant had to elect to either accept a standardized meager offer or face a “scorched earth” approach to litigation where the claimant would have to spend considerable sums to get their case to trial, and wait a considerable amount of time to get there. This idea first came to light in a 1994 article published in an industry magazine entitled “Risk Management Magazine”:

“When an insurance company denies a claim, most policyholders simply give up. Insurance companies win by default. Delay works in favor of insurance companies. Insurance handling and insurance coverage litigation . . . have four speeds: slow, very slow, stop and reverse . . . Thus, the entire litigation system – its enormous costs and lengthy delays – works to the advantage of the insurance company. The system is structured so that the insurance company, by denying a claim, gains the time value of the money and the likelihood that the claim will be settled for less than its full value.”

Anderson, Gordon and Liben, Insurance Nullification by Litigation, Risk Management Magazine, 46-50 (April 1994).

The judicial system became the unwitting participant in a process where the claimant and the court system would have to bear the principal expense of litigating a case to get a just verdict. McKinsey recommended that Allstate devote a minimal amount of resources to defending cases with a relatively low perceived value, because it knew that no lawyer would take the vast majority of these cases to trial.

Having served as an arbitrator of over 150 cases under the Mandatory Arbitration Rules adopted by King County for handling cases below $50,000, and having arbitrated and tried countless others, it is apparent that insurers will often use MAR as a discovery device, not putting forth substantial effort, routinely appealing matters thereafter, then attempting to drive up the expense of litigation, bringing in skilled expert witnesses, such that the plaintiff and plaintiff’s counsel face economic disaster if they have the temerity to take the case to trial and fail to improve their position. For this reason, insurers can defend modest cases with impunity, knowing that most lawyers would rarely take a bodily injury case through arbitration or trial, choosing instead to convince the claimant to give up and settle for a meager offer. Insurers will continue to pursue using the judicial system to defeat litigants by economic might, rather than adjudication on the merits, unless the courts award a lodestar amount to discourage these practices inimical to the judicial system. Because most plaintiffs and their lawyers cannot afford to try modest cases in a cost-effective manner, a new, lower “market value” is set based upon the “settlement value” of claims. This may have little to do with the “fair value.”

In From “Good Hands” to Boxing Gloves: How Allstate Changed Casualty Insurance in America, David Berardinelli et al., Trial Guides LLC (2006), David Berardinelli, following his detailed study of the 12,000+ pages of McKinsey materials outlining the Allstate program recommended by the McKinsey Corporation, summarizes Allstate’s approach as follows:

“McKinsey saw litigation as providing the best possible venue for “winning” its new Zero Sum Economic Game and achieving the goals of its new Enron paradigm for casualty insurance. Litigation is costly and time consuming. It thus allows an insurer to fully exploit its overwhelming financial superiority and the policy holders’ vulnerability to delay which is the natural consequence of the casualty loss.”

“Being adversarial by definition, litigation provides a perfect opportunity for maximum deployment of McKinsey’s “boxing gloves” litigation tactics-the perfect “kill box” for policy holders rebelling against McKinsey’s new Enron paradigm. See McKinsey, at 4964 (“aggressive litigation yields positive results”). Litigation would also provide a means for McKinsey to “send messages” to other policy holders about the futility of resistance to the Enron paradigm.” (See McKinsey, at 5117)

Id., at 148.

This “scorched earth” policy of extremely vigorous defense without regard for the merits, widely adopted throughout the industry, has a triple impact: burdening claimants with delay and costs; discouraging claimants and attorneys from pursuing and undertaking cases; shifting the expenses of reasonable claims settling practices to the public by flooding the judicial system with waves of cases, resulting in congestion, further delay, and enhanced profits associated with holding onto money properly paid out in claims and judgments even longer.

According to Berardinelli, supra, at 23, since being adopted by Allstate, this approach has been incredibly profitable. Quoting from BEST’S KEY RATING GUIDES from 1999-2005, he points out that since enacting the McKinsey recommendations in claims handling with Allstate, its profits soared to an average of 2.25 billion per year versus a mere 88 million per year prior to implementation. It is in this context that insurers, routinely appeal arbitrations and invest sums to retain expert witnesses for cases of modest value that would seem irrational outside of this broader context where they seek to burden the system and generate a “chilling” effect on claims and willingness of counsel to undertake them.

In this context, the only guarantor of “fair value” is the jury trial. Jurors provide a sense of community value for a loss that is largely independent of the “market place” established by settlement “values.” Not only does this provide hope for the recovery of fair value in the modest case, but combined with the fee-shifting provisions available under the rules governing mandatory arbitration, plaintiff’s costs and expenses can be awarded if the defendant appeals from an arbitration award and fails to improve upon it. [See April 2013, “Mandatory Arbitration in Washington”)

Priceless is NOT Worthless. (Part III.)

In the last two entries, appropriately named Parts I and II, we explored several important ideas, including: (i) the idea that the things we hold most dear often do not come with a price tag; (ii) the conclusion that both the compensatory and deterrence aspects of tort law require that we compensate the loss of priceless things, both to make the victim whole and to deter future misconduct so as to protect all of us; (iii) the recognition that in our work-life we often place a dollar value on one of the most priceless things of all: time; (iv) the notion that by thinking of non-economic damages, such as loss of life, peace of mind, pain and suffering, diminished quality and joy of life, as a job, we can “monetize” priceless losses. We must recognize that some losses, some grief, is so intense that even to regard it as a “job” is painful and seems to lack sufficient dignity for the loss. The loss of a loved one for whom we would give our lives, for instance, is literally a “job” where no wage would ever be sufficient. We will conclude this section with ways to think about grief and loss.

This analysis of valuing priceless things is important because, when members of our society are injured (sometimes we, ourselves), jurors (sometimes we, ourselves) are asked to place value on losses that are difficult to value. Juries are routinely asked to award money as compensation for both economic and non-economic losses. The former, we remember, are things like medical bills, lost wages, damage to property, while the latter are things like pain, disability, suffering, damage to parent-child and marital relationships, disfigurement, and loss of joy of life, and the loss of life, itself.

In this third entry, I would like to invite you to review Parts I and II and reflect on some of the practical implications of this idea of “monetizing non-economic losses,” that is, changing “priceless” losses into dollar awards. I would like to start this process by remembering that even economic losses, such a lost wages, have an important non-economic component. Jobs, although we get paid for our time, also give us other satisfactions, particularly if they are good jobs.

It helps in our reflections on this subject to keep in mind that injured individuals seldom, if ever, are glad that they had the injury for which compensation is sought. I have never met an injured individual who felt that being unable to work, feeling less than the person they had been before, being disfigured, disabled, or in pain, was a good way to make money. We are left with financial compensation for losses, not because these are what injured people want, but because we are limited to such remedies as part of the human condition. (We cannot, for instance, go back in time and avoid injury – as earnestly as most injured and disabled people may pray for such a remedy.) As we have noted, personal injury plaintiffs (those seeking compensation from the allegedly negligent defendant) have been unwillingly, recklessly, or negligently been placed in this position not as a matter of their own choice.

Sometimes insurance companies make much of the idea of “secondary gain” – that is, the notion that the injured person gets something out of their injury or disability and, therefore, is not only not motivated to recover, but gains by prolonging and exaggerating their disability. It is always more important to think first of the primary loss before concerning ourselves with the possibility of secondary gain. For example, being disabled means that you can no longer work. Is this a good thing? While most of us in thoughtless moments may entertain the notion that not having to work is a positive thing, the truth for most is that work is not only about money; being sidelined from work is not an unalloyed “blessing.” Is injury that prevents us from working a “secondary gain?” Almost never. Work is not only pay, but also about the satisfaction of making one’s way in the world, being an “adult,” about productive labor, about social interactions with our co-workers, colleagues, supervisors, and others, about contributing to one’s household, community and nation, and filling one’s day and life with meaning. A good day’s work, followed by time with co-workers, friends, neighbors, and family, some rest and recreation is, well, a very good day indeed. No one who experiences the worry of losing their job or the disorientation of being unable to work fails to recognize that work is one of the main organizing principles of our lives. The key to successful retirement is often said to be “keeping busy” and “having things of interest” with which to occupy one’s time. One has to plan for retirement. Yet, an injured person may lose this organizing principle of life against his or her wishes and without the benefit of any planning. This primary loss overwhelms the slim benefits of any secondary gain.

So, let’s remember that treating pain and disability as a job for the purposes of valuing time requires that we recognize it as a truly rotten job: one forced upon us, lacking in benefits, lacking in pay, vacation, or time off, lacking in social interactions or sense of satisfaction, and disruptive of every other aspect of our life. Although treating pain as a job helps us value time, it is sometimes unfair to treat all losses as a job. Further, let’s keep in mind that even the loss of a job, which may seem to be an economic damage (i.e. loss of salary) also has non-economic components. Jobs, after all, are not only about money.

Dealing with the shock and trauma of injury, disability or death, particularly if the traumatic event involves the loss of a loved one, cannot properly be regarded as a job. We must attempt to value the very worst day in a person’s life and consider how much a person might pay to not have lived that day. No amount of pay would suffice to compensate for the grief a parent feels for loss of a child. Let us acknowledge that and explore the process of grieving together.

I would propose that such terrible losses have various levels of grief – long recognized in the traditions of grieving.

We are told in the Bible: “Jacob tore his clothes, he put sackcloth on his loins and mourned his son for many days, All his sons and daughters arose to comfort him, but he refused to be comforted. He said: No, I will go down to my son in mourning, to the grave.” (Genesis 37:34-35)

When someone is severely injured or killed, the regular rhythms of our life cease. Death comes in many forms, but the traumatic, unanticipated death, presents challenges that are distinct from those of a death that is anticipated by long illness or old age. Such losses leave the survivors to remember with deep regret that last words were hastily spoken or inadequate to express the depth of their caring for the person. Loss of life can also reflect the loss of a chance to right things that had gone awry. Unanticipated losses can also leave us feeling incomplete or that things that ought to have been said have gone unsaid. To recognize this type of pain is to recognize that it deserves compensation when such a loss is the product of the avoidable carelessness or negligence or another. Grief is an intense loss which must be honored and which, like other priceless losses, is difficult to value in dollars, difficult to monetize.

When reflecting upon the “priceless” loss of being able to say “goodbye” or “I love you” it is helpful to think about the stages of grief recognized by Jewish tradition.

Traditionally these are:

1. Aninut: the time between death and burial,
2. Shivah: the seven days following burial (shivah means “seven”),
3. Shloshim: the first thirty days after burial (shloshim means “thirty”),
4. The first year following the death,
5. Anniversaries (yahrzeit) or community remembrances (yizkor) thereafter.

These traditional stages of grieving parallel the intensity of losses we see in serious death and injury cases. In attempting to lend dignity to loss and to monetize the non-economic components of loss, we must understand the loss.

We see in serious injury five stages of loss:

1. Shock: the individual is not fully aware or accepting of the loss; normal life ceases;
2. Early recognition of loss: the individual is still numb, but tries to comprehend the extent of their injury or loss and fearfully begins to contemplate the idea that life must go on; if the person starts moving forward with rehabilitation, they may still often remain in denial and repress feelings;
3. Confronting loss and recovery: the individual moves forward with rehabilitation and begins to confront disability and limitation, feeling pain and grief that was too intense to acknowledge before; this period is often characterized by depression, despair, slow progress and setbacks, and, hopefully, a commitment to move forward;
4. Rehabilitation and planning: the individual begins to engage a new reality circumscribed by limitation and loss; social interactions are vitally important; anger may surface; a challenging period characterized by exacerbations and setbacks as slow progress in made toward returning to life activities as able; the painful recognition of the shape of the future emerges;
5. Acceptance and remembrance: the individual accepts and embraces a new reality of limitation and loss, often letting go of anger as unproductive, and, in the best cases, moving forward to a productive life appreciating the things that remain while acknowledging the things lost OR sinks into a quagmire of despair and recrimination, or a combination of the two.

When valuing injury, it is appropriate to recognize each of these stages. How was the day of the traumatic event? How does one compensate someone for the worst day of their life? In an injury case, surely, we recognize, medical bills, even when they reach into the tens of thousands of dollars, cannot suffice. The intense pain of that initial period must be separately acknowledged and valued. Each time period thereafter has a different duration and intensity and each must be valued. Recurring to our metaphor of pain and loss as a “job,” we might give a special “signing bonus” for entering into the “job of loss” during Stage 1, perhaps a multiple of the emergency room bills. Thereafter, we would give hazard pay and double time 24-7 for the intense period of Stage 2. Stage 3 would establish a new “norm” of double time for long days. Stage 4 would be a prolonged period of daily compensation at a high base rate. Stage 5 would be the rate through the duration of the disability, perhaps through the individual’s life expectancy in the case of permanent injury or disability. Each of these “chunks” of time must be valued in accordance with the evidence of the case.

Using the idea that pain, loss and disability exist over time, we recognize both duration AND intensity as components of the loss. A “Pain Graph” can readily demonstrate the difference between intense but short-lived pain and less intense but long-term pain. Such a careful analysis is important to the proper compensation required for general damages or non-economic losses.

Priceless is Not Worthless. (Part II.)

The last entry noted that, in the absence of fixed standards by which to measure non-economic damages, jurors were left to their own devices. I suggested that there were some tools that lawyers and jurors could use to consider valuation of things such as pain, suffering, disability, disfigurement, and grief that were both principled and helpful. This entry will explore some of those tools.

We are accustomed to measuring certain things in dollars and cents. No one has any difficulty determining lost wages or medical expenses; these sorts of economic losses are customarily measured in dollars. The value of a life may be difficult to measure, but the cost of saving a life at a trauma center can be known to the penny! The last words of Queen Elizabeth I, probably apocryphal, have been reported to be: “All my possessions for just a moment of time.” This would lead us to conclude that life, even a few moments of time, are priceless.

It is my contention that both life and time are, indeed, priceless, but that they are not worthless! It is possible to place a value of such things so as to lend dignity to the loss.

A beloved pet or companion animal is worth more than its purchase price or veterinary bills. I am reminded of the plaque in front of a bench along the Seattle waterfront’s Centennial Park my wife and I noticed during our walks through the Sculpture Park that we believe to be in honor of a beloved pet, “Eddie.” (If not, we sincerely apologize to the bereaved, but there was only a single name given.) Many a loving owner willingly spends hundreds of dollars for the care of a pet rescued from the pound or, as with Eddie, in remembrance of good times past. If a villain were to kill your pet on purpose and hand over a fistful of dollars equal to the purchase price or initial vaccinations from the pet store or pound, few of us would regard that as an even trade. Beyond the money, we would find the conduct outrageous!

Few of us would regard it as an “even trade” to suffer an injury through the negligence of another and be paid the medical bills alone. Although the death of a loved one cannot be reversed, it does not follow that the wrongdoer should pay nothing as legal damages. Priceless is not worthless and tort principles of deterrence require that human life be given a value greater than the car totaled in the collision!

What we are really saying is that we are uncomfortable with placing a value on life, time, or quality of life, because it is not a marketplace in which we customarily deal. We find the idea of receiving money for the death of a loved one to demean the ineffable value of that heartfelt loss. The solution, however, is to find a principled method of calculation that lends dignity to the loss, not simply refusing the challenge of valuation by setting the value of human life, human pain, or human dignity at zero!

Michael Sandel, in his recent best seller, “What Money Can’t Buy: The Moral Limits of Free Markets,” explains that there is a robust and burgeoning marketplace for both life and time. Want to attend a Congressional hearing or a Supreme Court argument? It is common practice for some to hire professional “line standers” to wait in line for you. Time is money! Likewise, when it comes to traffic flow, commuters can (increasingly) pay tolls to use “Hot Lanes.” Here in Washington State, the use of SR 520 (Evergreen Point Floating Bridge) and Hot Lanes on SR 167 already allow drivers to pay to save time in their commute in just this way and Hot Lanes are expected to be expanded to I-405 and other freeways.

In the viatical industry, however, author-philosopher Michael J. Sandel explains that investors purchase life insurance policies from the terminally ill, providing the dying with cash for medical care and receiving the proceeds of the insurance upon death. This seems a bit ghoulish since the investor profits from the early demise of the insured, having bought the policy payout at a discount. Increasingly, Sandel notes that the democratic and democratizing ideal of “first come, first served” is yielding to “you get what you pay for!” All human beings have their allotted time and, as Queen Elizabeth I noted, all the possessions in the world cannot cheat death. (I would be remiss in failing to note that money also yields superior medical care which may be able to extend one’s time somewhat, but in the end death is a certainty for all.) Like Sandel, I am concerned that our society is equating willingness to spend one’s wealth to the highest and best use of social resources. A small child spending a day at the ballpark may be more valuable and meaningful for all then a corporation being able to buy skyboxes at the stadium which remain empty. The fact that one can save time by paying for line standers or Hot Lanes or that one can afford superior medical services or better seats in the ballpark may not be the best allocation of social resources. A wealthy person’s time with his family is not necessarily more important than the time of a struggling worker, student, or person looking for work spent with loved ones.

Juries and juries alone can recognize the importance of determining the value of lost health, time, life. I propose that, despite the unusual aspects of setting values to such things, that we do so all the time. When? Whenever we get a paycheck! We are selling our time hour by hour, week by week, year by year and declaring that the compensation we receive is “worth our time.” Commuters in Hot Lanes or choosing a toll bridge over another bridge that is untolled (but more crowded) are saying that even a few moments of time are worth a hefty toll. So, if we can measure time, we can measure life lost or shortened or a loss in quality of time!

So, this is our first tool: thinking of pain as a time-consuming job. We have all had a job that “was a pain.” I am asking you to consider what if your job was “feeling pain.” Suppose I offered to pay you minimum wage in Washington of $9.19 an hour for each hour of pain you received. Remember that this is a bad job: no time off, no benefits, bad hours, interferes with your family time, no weekends, evenings, holidays, time off, or vacations. Oh yes, and you can’t quit, although you can get some relief from the pain with injections, surgery (maybe), or pain-killers that leave you unable to focus or be your best self. Let’s say your work day is 16 hours a day. That is, you have a few good hours in the day and are not aware of pain for 4 hours at night when you are only able to enjoy a fitful sleep. Although the pain disrupts your usual 8-hour sleep, you can get about 4 hours of rest. This means that your “pain”-job is going to pay you $147.04 a day, $1029.28 a week, $53,522.56 a year. If you will experience this pain for the rest of your life, we will want to know your life expectancy and whether the pain will get worse (the job harder) as you get older. A person of twenty might have this job for sixty years, “earning over $300,000.00; a person of sixty might have this job for twenty years or more, “earning over $100,000.00.” Although there is no marketplace for pain, there is definitely a marketplace for time. The fact is that with these hours, lack of benefits, and work conditions, few people would believe that minimum wage was sufficient. It wouldn’t be worth it. Perhaps one’s time “off” – which is what pain takes away – should be valued as much as your work-time. Perhaps, time and a half, double time, hazard pay, or more would be appropriate!

Using this tool, however, lawyers and jurors can think about such things as the intensity of the pain, its disruptive impact on the rest of their life, and its duration. What should the hourly rate be? Should a person be paid time and a half or double time on holidays, evenings, weekends, and lost sleep? Is there hazard pay? What about the lost time and pleasure of carefree time with one’s friends and family? What about the lost satisfaction of a productive job that might have been lost due to the injury? No one would want this job of feeling pain. To do this sort of job, one deserves substantial compensation! Consider also that this job was not one that the injured person volunteered for: it was forced upon the injured person against his or her will as a result of the negligence of the defendant. It is a type of involuntary servitude, subjecting the only thing we have in life, time, to forced labor at the beck and call of a cruel master, pain itself.

In the next entry, we will review some other tools available to help jurors give fair value for the loss of priceless things.

Priceless is NOT Worthless. (Part 1.)

What is most important in the world? There is surprising consensus about what it is not!

We have heard light-hearted comments like: “You can’t take it with you.” We have heard the modest words of an older person: “At least I have my health.” Or words to the effect: “No one has engraved on their headstone, “I should have spent more time in the office.”” Shakespeare, in Othello (Act III, Scene 3), wrote these timeless words about damage to reputation:

Good name in man and woman, dear my lord,
Is the immediate jewel of their souls.
Who steals my purse steals trash.
‘Tis something, nothing:
‘Twas mine, ’tis his, and has been slave to thousands.
But he that filches from me my good name
Robs me of that which not enriches him
And makes me poor indeed.

Taken together, we all agree that the most important things in life are not purely monetary. Patrick Henry proclaimed: “Give me Liberty – or give me death!” Many brave men and women have given their lives for others – for freedom! There are things greater than ourselves that are worth more than life itself. Things like health, reputation, time with loved ones, family, friendship, a kind word from a mentor, teacher, parent, co-worker, sibling, child, time with a beloved pet or companion animal, a sense of achievement or accomplishment, service to the public, service to others, productive labor, peace of mind, peace, freedom, justice, for example, are priceless. We all know this to be true. Yet when it comes time to put dollar values on such priceless things, we all can get confused and stymied. How do we put a price on the priceless?

One thing jurors agree on is this: “Just because something is priceless, does not mean it is worthless!” How do we lend dignity to the loss of priceless things? This is not just a rhetorical question. We ask juries across the country to value the loss of such things every day.

I have spoken to many jurors during the process of jury selection known as voir dire* and explored this very question. I have asked if jurors had ever had a beloved pet. Could the value of this pet be calculated based on purchase price, vet bills, costs of food? Is a pet is rescued from the pound worth less than a show breed in terms of our feelings of loss? Clearly the “economic” value of a pet is different that the “noneconomic” value of a pet. If someone takes a beloved pet from you or your child, does it fully compensate for that loss to pay, say, the purchase price? What about pain or injury you or someone else sustains as a result of someone’s carelessness or negligence? If an injury costs you a hand, a leg, an eye, your peace of mind, is it enough to pay you the cost of medical bills and call it even?

The law says that the jury should compensate for both special (specific) damages and general damages, which correspond to economic and noneconomic damages. Special (economic) damages are all the kinds of losses that have a price tag: medical bills, damage to property, lost wages, loss of future work or business opportunities, breach of contract, failure to pay money owed, financial losses. General (noneconomic) damages are all those things that do not have a price tag: pain, suffering, disability, damage to the marital relationship, damage to the parent-child relationship, emotional distress, humiliation, damage to reputation, loss of peace of mind and enjoyment of life.

Washington law, in RCW 4.56.250(1), defines economic and noneconomic damages in actions for personal injury or death. Economic damages are “objectively verifiable monetary losses, including medical expenses, loss of earnings, burial costs, loss of use of property, cost of replacement or repair, cost of obtaining substitute domestic services, loss of employment, and loss of business or employment opportunities.” RCW 4.56.250(1)(a). Noneconomic damages are “subjective, nonmonetary losses, including, but not limited to pain, suffering, inconvenience, mental anguish, disability or disfigurement incurred by the injured party, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation, and destruction of the parent-child relationship.” RCW 4.56.250(1)(b).

In Washington State, juries are provided with the Washington Pattern Instructions (WPI) through which the Court provides jurors with instructions as to the applicable law. WPI 30.01.01[Measure of Economic and Noneconomic Damages—Personal Injury—No Contributory Negligence] states in pertinent part:

It is the duty of the court to instruct you as to the measure of damages. [By instructing you on damages the court does not mean to suggest for which party your verdict should be rendered.

If your verdict is for the plaintiff, then] you must determine the amount of money that will reasonably and fairly compensate the plaintiff for such damages as you find were proximately caused by the negligence of the defendant.
* * *
The burden of proving damages rests upon the plaintiff. It is for you to determine, based upon the evidence, whether any particular element has been proved by a preponderance of the evidence.

Your award must be based upon evidence and not upon speculation, guess, or conjecture.

The law has not furnished us with any fixed standards by which to measure noneconomic damages. With reference to these matters you must be governed by your own judgment, by the evidence in the case, and by these instructions.

[Emphasis added.]

Although the 1986 Tort Reform Act originally capped the amount of noneconomic damages that may be recovered pursuant to a formula based on a percentage of the average annual wage and the life expectancy of the person incurring the damages, this cap was later struck down as unconstitutional in Sofie v. Fibreboard Corp., 112 Wn.2d 636, 771 P.2d 711, 780 P.2d 260 (1989) (interpreting the constitutional right to a jury trial). So, we know one thing for sure, the Legislature is not going to be able to give the jury a “formula.” Assessing and valuing this special kind of loss is uniquely within the province of the jury. Although it is difficult, it is a job that can – and must – be done.

One answer that is NOT the right answer is the idea that no amount being sufficient to compensate for noneconomic loss, justifies awarding nothing at all. After all, in a wrongful death case, one can always say: “Money won’t bring him/her back.” So, why award anything at all? The answer is in the title of this blog: something being priceless is not worthless; we must lend dignity to the loss. If no amount is enough, it does not follow that awarding nothing is enough.

Why is nothing not enough? One key reason is that tort law, which protects all of us from wrongful conduct, would be undermined by failing to award damages. Tort law (as opposed to criminal law) provides remedies for civil wrongs that injure others (other than those arising out of contractual obligations) including claims for personal injuries or wrongful death arising from negligence, defamation, trespass, invasion of privacy, infliction of emotional distress, and fraud, to name a few. Tort law provides essential protections for our individual rights in two ways: first, it seeks to compensate victims of past wrongs; second, it seeks to deter careless, injury-producing behavior in the future. Through compensation to the victim, the innocent are given means to move on; at the same time, such remuneration also vindicates legal rights and interests and affirms their value in the society at large. By shifting the costs of injury to the person legally responsible for inflicting them, it punishes wrongdoing, both deterring a repetition of the harmful act and providing incentives for improved behavior. Failing to award damages for noneconomic losses means that innocent victims are not fully compensated and that guilty wrongdoers are insufficiently deterred.

A jury is required to award damages for every element of loss. If a person has medical bills that are awarded, it has been held to be error not to award anything for pain and suffering that necessarily accompanied the injury. On relatively rare occasions where a jury has failed to award any noneconomic damages, the court has invoked its power of additur adding to the verdict damage amounts in addition to those awarded by the jury.

Lacking fixed standards, jurors must use their own personal experience and judgment to award noneconomic damages. How may this be done? In my next blog, I will suggest some approaches that may help. So, stay tuned for Part II.

* For those who are interested, voir dire is derived the Norman French; it was William the Conqueror who brought the jury system to England from Normandy during the “Norman Invasion” in 1066. It does not mean, as it might in modern French, “voir” (“to see”) “dire” (“to say”), but comes from the Latin word verum, meaning truth and dictum meaning speech and so is properly translated as “truthful speech.” The same roots lives on in such words as verity, verify, dictate and dictionary. During the voir dire (jury selection) process at the beginning of a case, jurors are sworn to speak truthfully about their qualification to serve. The word “verdict” at the end of trial, completes the neat set of bookends at the beginning and end of a case, since it also means “truthful speech.” In voir dire, the jurors are speaking truthfully about their own fitness to serve; in the final verdict, the jury is speaking truthfully as to the justice of the case.