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Trial Lawyers Are Public Safety AttorneysPosted July 31, 2017
By Jonathan A. Karon
I spent a good chunk of last week at the annual convention of the American Association for Justice, usually known as “AAJ”. When I told my friends where I was most people had no idea what I was talking about and thought the “American Association for Justice” sounds like where Batman, Superman and Wonder Women hang out. I always feel a little silly having to explain that the American Association for Justice is not the Justice League of America or the Superfriends, but is a national organization of plaintiff’s personal injury attorneys.
Years ago, AAJ used to be called “the Association of Trial Lawyers of America” and I never had to explain what it was. But, back when George W. Bush was President, the powers that be decided that “trial lawyer” had such bad connotations for most people that they needed to change the name to the American Association for Justice. Like many of my colleagues, I hated the name change. It made us look like we were ashamed of being identified as trial lawyers or personal injury attorneys. It certainly didn’t effectively re-brand the organization as news stories still refer to it as “the American Association for Justice, formerly the Association of Trial Lawyers of America.”
At the same time, some state trial lawyer organizations also changed their names. Some incorporated the “Justice” label others adopted names with “Consumer Attorneys” in it. For example, in California, the state organization for personal injury attorneys is called “the Consumer Attorneys of California.” All of these names miss the boat. “Justice” is a vague concept and there are lots of forms of injustice that trial lawyers don’t address. Similarly, although our cases frequently involve consumers, many do not. There are many preventable injuries that don’t arise out of a consumer transaction, such as car crashes or failure to keep property in safe repair.
So what do personal injury attorneys really do? The answer came to me last week, during the convention. We are “public safety attorneys”. When someone chooses to engage in unsafe behavior that causes a preventable injury, we attempt to hold them accountable. Ultimately, if they will not accept responsibility, we ask twelve people from the community to decide if the defendant’s behavior met the community’s standards for safety. As trial lawyers we get to petition the community to deter dangerous conduct.
Yes, I know the above description sounds a little pompous and self-serving. Certainly we get paid, sometimes handsomely, for our efforts (on the other hand, if we lose, we don’t get paid at all, which gives us a strong incentive to only pursue meritorious cases). It’s also true that most civil cases settle before trial. But good trial lawyers have to be ready and willing to try their case if the defendant or their insurance company isn’t willing to accept full responsibility for the harms the defendant caused.
These days, being public safety attorneys is more important than ever. In the 1980’s and 1990’s business schools began teaching that the only ethical way to run a corporation was to maximize returns for the owners (i.e. the shareholders). The interests of other people, like employees and customers, were not important. So, if you could maximize profits by reducing salaries and benefits or laying off workers that was the “ethical” thing to do. Similarly, if you could maximize profits by selling a less safe (or unsafe) product that was also the ethical thing to do. At the same time, this “profits over everything” mind set also resulted in less government regulation of corporate behavior. By holding corporations and others responsible financially for the full cost of the harms they choose to inflict on others, trial lawyers promote safety.
This is the way the tort system was intended to work. We inherited it from the law of England, where it was felt that it was better to have disputes resolved in a court of law, than by duels (no doubt to the disappointment of Game of Thrones fans). It is well accepted, though juries are rarely told this, that a major purpose of negligence law is to deter unsafe behavior by making people (and corporations) pay the full cost of the injuries they cause.
Other countries have different systems for accomplishing this. Instead of a tort system, many European countries have much stricter government regulation to deter unsafe conduct, like selling a dangerous product and more generous government benefits for people who’ve been injured. Rather than choose more government regulation, in the U.S. we’ve chosen a tort system that relies on trial lawyers.
I presently have the honor to serve as President of the “Massachusetts Academy of Trial Attorneys”. I know what the stereotypes are of my profession and how they got that way. But I’m proud to be a Trial Lawyer, a Personal Injury Attorney and a Public Safety Attorney.
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