By Maria Cudowska
This article builds upon a qualitative empirical study relative to compassionate counselling practices in personal injury disputes in Michigan, with an emphasis on tangible and intangible interests of personal injury clients. The article intends to draw attention to observations made by Michigan Lawyers on account of communication in personal injury disputes.[i]
Maya Angelou once famously said that people will forget what you said and did, but they will never forget how you made them feel. Taking a life of its own and possibly being Angelou’s best quote ever, I took the opportunity to reflect on Angelou’s timeless wisdom through the perspective of personal injury (“PI”) lawyers in Michigan. A personal injury lawyer’s perspective is important for two reasons: (1) dealing with repetitive claims may or may not challenge a lawyer’s emotional responses and significantly impact the client’s perception of the case, and (2) PI cases are mostly settled in the presence of a third-party neutral. Mediators are thus incentivized and assist lawyers in settling PI disputes out of court; such disputes are often the bread and butter of many mediators’ practices in Michigan.
Moreover, under the court rules, parties are given numerous opportunities to settle. As of January 1, 2022, courts removed all sanctions associated with rejection of case evaluation award, which has now resulted in many lawyers seeking mediation in lieu of case evaluation, thereby further incentivizing settling out of court.
In my study, given the need for a mediator’s assistance in PI cases, I assumed that communication breakdowns must be navigated and managed by the lawyers first. Between gathering medical bills and heated discussions with opposing counsel, PI lawyers are also constantly communicating with their clients and making sure they are up to speed and are being taken care of. Thus, personal injury lawyers have an acute interest in utilizing soft skills in practice, not only for their client’s sake, but also for their own mental well-being. One lawyer in the study identified anger as the primary emotion present on the plaintiff side:
“…Rarely will emotion come into play on the defense side. You may get somebody how was represented by a lawyer who is being paid by the insurance company that vehemently denies that they are at fault for the accident, and they will be angry about it, so the emotion on the defense side is going to be anger. How could this person ran the red light? How dare they sue me and that type of thing. On the plaintiff side, emotion is all over the place, for the simple reason that you’ll get an injured person.”
I talked to 22 lawyers who operated across the state and asked them if they distinguished tangible and intangible interests of their clients and if that made a difference on how they handled their cases. However, what I really wanted to know was whether lawyers demonstrated an advanced level of soft skills such as emotional management and whether there was any evidence of such skills having a positive influence on the relationship with the client. To clarify, tangible interests are more oriented towards monetary considerations and intangible interests are those associated with pain and suffering. Non-monetary considerations reflect on a client’s a deeper need such as the need of an apology or other forms of compassionate communication, be it from their own lawyer or opposing counsel.
From the conversations I had it seemed that in most personal injury cases the client’s overriding non-monetary interests are wishes to receive recognition or an affirmation that they have been wronged. It seems that pursuing client’s intangible goals and interests demonstrates a compassionate practice. Some lawyers in the study believed that perspective taking can have little or no effect on the settlement, while others saw great benefits to active listening and honest communication, which helps manage expectations and delivers better results for clients.
My reflection began in 2021 when nationalists were storming the United States Capitol in Washington and the pandemic was still in full swing. During the pandemic, lawyers across the state were witnessing changes in personal injury practice and began experiencing shifts in their professional relationships, which impacted settlement negotiations of personal injury disputes. With courts in Michigan operating fully remote, there seemed to be more incentives to some litigants to withhold settlement efforts.
Some lawyers were waiting out for their cases to go to trial to get a more favorable outcome, preferably in front of a jury.
However, streamlining those cases was imperative to prevent deadlock and complete paralysis of the judicial system. Mediation and out of court settlement processes helped lawyers and clients reach better and long-lasting agreements in personal injury cases. Therefore, my main goal in this note is to share insights and stories of Michigan lawyers and acknowledge their service to their clients and legal community.
Story #1: “Lawyer’s don’t share their stories with each other.”
Establishing a good channel of communication with your counterparts is essential to a successful resolution of a personal injury dispute. However, I came to learn that some lawyers believe that there is not enough open and honest communication between opposing counsel, and the presence of a “middle man” helps to streamline communication:
(…) There was a time when lawyers would call each other, right, and you would talk the other lawyer you would have a relationship with them …I think we're don't talk to each other anymore; they [the parties] have to have a middle person and one of the great things that lawyers do has always been to speak to each other for their clients so I think they've lost that a little bit. But facilitation helps because it puts a person in the middle (…),” [Interview A10].
Story #2: “Lawyer’s share stories about how their own bias could have had an impact on their case.”
Lawyers shared the their views on bias and its role in settling disputes, which shed some light on the struggles and moral dilemmas PI lawyers’ face:
(…) but I do suspect sometimes that, and maybe my own inherent systemic bias factors into this. That sometimes if it’s an old white lady crying versus a young black man crying, I might have a different reception to the claim (…). I am ashamed to say it, but I wonder sometimes whether I am being objective or if I have some sort of social systemic bias that is impacting my objectivity. I think more people from socioeconomically depressed areas are more likely to engage in insurance fraud because there's a necessity and economic necessity. The history of our country has resulted in more people of color have ended up in more socioeconomically depressed situations. So, then you start to wonder, am I being objective?” [Interview A9].
Story # 3: “Lawyers’ share stories about how clients cannot handle guilt.”
What stood out to me was a testimony from a former defense counsel who talked about the nuances present in establishing a successful relationship with clients, and the true meaning of being a counsellor:
(…) there are different kinds of relationships, both of them involve trust-building, both of them involve getting to know the clients. But I think one so the one where the insurance company hires me, at least initially, the clients don't have the same stake in the outcome of the litigation because if let's say your insurance company to say it's a wrongful death case. They killed someone in a car accident, and they have a $1 million insurance policy. The insurance company essentially decides whether or not the case get settled. So, from that standpoint, the client a lot of them aren't invested. They go well, you know, whatever the insurance company wants to do, I don't care. So, there was a lot of that, but then there were some who wanted the kind of non-monetary relief about they were sued for causing somebody's death. That was very traumatic to them from a standpoint, I didn't do anything wrong. Why should why should my insurance company pay them a million dollars to settle this case? So, there were those kinds of clients who you really had the handhold because the process of did something wrong, but somebody else gets to decide how it comes out was just very foreign to them. It was an anathema. They didn't know how to deal with that. So, it's a lot of, you know, I mean, if you hearken back to what were called when we graduate from law school, you call it an attorney and a counselor. And really a lot of it if you're any good at [what] counts is the counselling aspect of it. You know, you can tell them about the mechanics of a jury trial. You can tell them about the mechanics of litigation, but there's a whole lot more to it than that.” [Interview, A5].
Maya Angelou’s profound and timeless wisdom rings true to both personal injury lawyers and clients. Personal injury clients wish their harms to be recognized and affirmed and often the best way to achieve such goals is using a third-party neutral.
Though lawyers may, for the sake of their case, move past grievances and set feelings for the opposing counsel aside, clients rarely, if ever, move on and forget how their lawyers made them feel.
The stories suggest that the presence of feelings and emotions in legal disputes can make lawyers uncomfortable. As a result, clients may feel misunderstood, unheard and urge their lawyers to resolve the dispute through trial rather than an out-of-court process. There is a need to perform more research in the realm of lawyer client communication as the data can demonstrate where the blind spots are and can help determine new pathways of professional development for PI lawyers, specifically pathways that involve compassionate communication. Just like everything in life, the thing with feelings and clients is that it all about balance. Achieving balance is possible when compassionate communication is present.
About the Author
Dr Maria Cudowska, LL.M is a Polish lawyer and a Fellow at the Institute of Security Policy and Law at Syracuse University College of Law. She is a civil facilitative mediator in the State of Michigan and holds an LL.M degree in the American Legal System from Michigan State University. She also serves on the board of Southeastern Dispute Resolution Services, a Community Dispute Resolution Center based in Jackson Michigan. Dr Cudowska can be reached at firstname.lastname@example.org
[i] The author acknowledges the generous support and sponsorship of the Polish - American Kościuszko Foundation (https://www.thekf.org/kf/) of the project: “Mediation in Action. Personal Injury as a pathway to teaching compassion and ADR in the academia” researched at Michigan State College of Law in January through May 2021 under the supervision of Prof. Mary Bedikian, Prof. Daniel D. Barnhizer and Prof. E. Hartfield to whom I am most grateful for. I am also especially thankful for the kind assistance of the former Chair of the ADR Section of the State Bar, Mrs. Betty Widgeon for her support and time. The semi structured interview protocol was supervised by Prof. John Lande with additional guidance and mentorship from Prof. Donna Shestovsky and Roselle Wissler. I would like to thank and acknowledge the kind assistance of Mr. Marc Stanley, the Director of the Southeastern Dispute Resolution Services in his assistance in the research process, which helped me to understand DR customs and traditions in Michigan better. Also, many thanks to Michigan State Students, Melonie Lumpkin and Stephanie Kane. The contribution is one of a three part series of papers on the subject of compassionate practices in personal injury work, see: “A Compassionate State of Mind: How Michigan Personal Injury Lawyers Think about Non-Monetary Goals and Interests available at:https://journals.umcs.pl/sil/article/view/13042/pdf and forthcoming: “The Language of Compassion. A few lessons from Michigan lawyers on how to communicate compassionately with personal injury clients”, International Journal for the Semiotics of Law – Revue international de Sémiotique Juridique.