Document Type

Article

Publication Date

2007

Abstract

This Article examines from a new angle a long-standing debate on a central question of the legal system: why plaintiffs sue and what they seek from litigation. Legal research has documented various extra-legal aims or non-economic agendas of plaintiffs who commence legal proceedings for various case-types. However, current debates have failed to address this issue in depth from the perspectives of plaintiffs themselves, subsequent to lawyers conditioning them on legal system realities and translating their disputes into legally cognizable compartments. Nor have understandings of plaintiffs' aims been examined from the perspectives of defense lawyers. These are significant gaps in the knowledge, as plaintiffs' objectives directly impact upon their experiences in litigation and litigation-linked processes such as mediation. Likewise, attorneys' approaches and conduct throughout litigation and mediation processes are premised upon their basic understandings of what those who commenced these suits want.

In providing new empirical research, I offer disconcerting evidence of the surprising degree to which disparate perceptions of claimants' litigation aims exist as between plaintiffs and attorneys - at times even between lawyers and their own clients. As such, this Article presents a picture of discontinuity where there appears to be little understanding of plaintiffs' motivations amongst the lawyers involved in their cases. Employing a novel angle of juxtaposing all sides' views within the same or similar medical malpractice cases, I show that regardless of allegiances the bulk of attorneys understand that plaintiffs sue solely or predominantly for money. Even many plaintiff lawyers, who are more aware of their clients' extra-legal aspirations, swiftly translate these objectives into finance alone, as that is all the legal system can provide. Yet simultaneously, virtually all plaintiffs vehemently insist, it is not about the money! with only a minority saying financial compensation was even a secondary aim. Instead, plaintiffs' articulations of why they sued and what they sought from the legal system - regardless of whether their cases had been litigating for months or years - were thickly composed of extra-legal aims of principle. Yet plaintiffs' objectives of obtaining admissions of fault, prevention of recurrences, retribution for defendant conduct, answers, apologies and acknowledgments of harm remained invisible to virtually all lawyers throughout the duration of their cases' processing.

To explain this phenomenon, I present a theory that argues that these parallel worlds of understanding occur largely due to the institutional framework of the civil justice system coupled with the practical and economic realities of legal practice that result in dispute transformation. In offering two proposals to increase attorneys' understanding of plaintiffs' extra-legal agendas and needs within litigation processes, this Article implicitly argues that the operating economic premises of the civil justice system require urgent and serious re-evaluation.

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