Non-Adversarial Justice and The Impact of Lawyers On Recovery From Compensable Injury-Arno-Akkermans ACHRF 2011

The impact of lawyers on recovery of injury
1st Australasian Compensation Health Research Forum Melbourne Oct 2011
Non-Adversarial Justice and the Impact of Lawyers on

Recovery from Compensable Injury
Arno Akkermans
Nieke Elbers
Kiliaan van Wees
Amsterdam Interdisciplinary Centre for Law and Health
Presentation outline
The compensation process causes unintentional harm

Qualitative and quantitative data
Explanatory theories and possible anti-therapeutic factors
Implications. Model of relevant factors
Focus on victims lawyer. Fundamental shortcoming of lawyers
Theoretical frameworks for improving lawyer-client interaction
Investigating lawyer-client interaction from the victims perspective
Results from a small qualitative study in the Netherlands
Five important lawyer characteristics. Discussion
Compensation is bad for health
Patients
Slachtoffers
Welzijn
en
Recovery
herstel
Patients
receiving
Slachtoffers
in een
letselschadeafwikkeling
compensation
Time
Tijd
Qualitative studies: the experience of PI

victims
Complex interaction between personal-, health care-, workplace- and
compensation systems obstructs recovery and return to work
Claims and settlement process particularly frustrating
The more adversarial, the more aggravating
Power imbalance and stigmatization
Dependency on legal representative assisting with claims process
Qualitative studies: the experience of PI

victims
Sense of entitlement and injustice
Need for acknowledgment and other non-pecuniary needs
Perceived lack of trust about having to prove an injury or disability
Strong dislike of medico-legal assessments
Inability to move on with life during the claims process
It takes too long !
Quantitative studies
Poorer health and vocational outcomes of all kinds of injury
E.g. meta-analysis of outcomes after surgery of 211 studies: odds of
unsatisfactory outcome 3.79 time higher (Harris et al. 2005)
Compensation often found to be the strongest predictor of poor
health outcomes
Compensation a significant predictor of health care utilisation
(e.g. Harris et al. 2009)
Quantitative studies
Long term outcomes (functional outcome, return to work) up to 2 times
worse (Gabbe et al. 2007)
Lawyer involvement strong predictor of longer duration, poor
outcomes, higher costs and health care utilisation (injury severity controlled for)
(e.g. Bernacki & Tao, 2008)
Legislative change can have significant impact on health outcomes

(Cameron et al 2008, Cassidy et al. 2000)
Caveat: although the weight of the evidence points clearly in the same direction, not all studies find
these effects, almost all are observational, their quality and evidential power varies (e.g. Grant &
Studdert, 2010), more research is needed, and in particular: more sophisticated designs.
Explanatory theories
Secondary Gain
Being involved in compensation creates a (generally unconscious) incentive to
remain unwell
Secondary Victimisation
Being involved in compensation is a stressful and aggravating experience,
giving rise to renewed victimisation
These two theories refer to overlapping phenomena
Possible anti-therapeutic factors

Focus on financial compensation vs rehabilitation and re-integration
Necessity of asserting eligibility => increased perception of symptoms
Adversarial interactions => power imbalance, experience of injustice,
loss of sense of control
Medical assessments => promotion of sickness behaviour,
identification with diagnoses, repetition of message of inability
Possible anti-therapeutic factors

Creation of focus on impairment and past, vs on abilities and future
Complexity of interactions => dependency on others, loss of sense of
control, demoralization, loss of ability to cope
Negative experience of treatment by other party (impersonal, mistrust,
disrespect, cynicism) => indignation, digging in, demoralization about
getting well
Unresolved sense of injustice => anger, frustration, demoralization
Delay => habituation of all these negative factors
Implications at all levels, and for all parties

Public perception (culture)
Check the immense disempowerment of stigmatization
Compensation system design
Probably the more adversarial, the more anti-therapeutic

Although adversarial confrontations can also be psychologically beneficial,
especially when someones fault caused the initial injury
Even tort law procedure has some potential for addressing non-pecuniary needs
Lump sum vs periodic payments, non-economic loss in- or excluded
The importance of tempo can probably be hardly overestimated
Improvements within given system
Factors that can influence well-being of PI victims
Why focus on the victims lawyer?

Victims lawyers perceive themselves as the good guys => relatively
unreceptive to inconvenient truth that they share responsibility for a
harm causing system
Victims lawyers have:
- direct relationship of trust with their clients
- direct influence regarding adequate communication,
information, client involvement and expectation management
- ample opportunities to steer events and take initiatives
=> within given system, victims lawyers are often more in a position to
make the difference than any other party
Fundamental shortcoming of lawyers in PI process:

Lawyers focus solely or primarily on financial outcome
(where applicable, contingency fees even create direct conflict of interest with
client)
Implicit encouragement of disability and sickness behaviour
Prioritizing as a matter of course of steps beneficial to financial recovery yet

detrimental to health and reintegration (e.g. medical assessments, any tactic
involving delay and stagnation)
Neglect of non-pecuniary needs. Attorneys often treat what plaintiffs describe as

their aims as something ephemeral, and regularly urge clients not to pursue such
goals as emotional or moral vindication (Relis 2007)
Lose perspective of the whole person who is their client
(Schatman 2009)
Theoretical frameworks for improving lawyerclient interaction

Procedural justice theory (Interactional justice, Informational justice)
Perception of justice is more determined by procedural aspects and the way a
decision is reached, than by the outcome itself
Therapeutic jurisprudence
Study of therapeutic and anti-therapeutic effects of law, legal procedure and roles
of legal professionals
Procedural justice
Information (explanations need to be reasonable, timely and specific)

Opportunity to tell ones side of the story
Participation in process
Voice
Being treated with dignity and respect
Therapeutic jurisprudence
Aiming to enhance clients internal, psychological, emotional, moral, relational,

and spiritual state during legal procedure
Lawyers should not only look at legal soft spots (areas that can lead to future
legal trouble) but should also consider psycho-legal soft spots (areas in which
legal interventions or procedures may lead to anxiety, distress, depression, hard
and hurt feelings, etc.)
Teaching lawyers basic principles of psychology, interpersonal skills, listening,

interviewing and counseling techniques and approaches for dealing with
emotional issues
Client-centered lawyering: involving the client in decision making
Investigating lawyer-client interaction from

the victims perspective
Qualitative semi-structured interviews of PI victims
Both satisfied and unsatisfied (switched lawyers) with their lawyer
Saturation reached at n=21
Analysis in duplicate through open- axial- and selective coding
Context: PI compensation in the Netherlands

Pop. 16,5 mil. Land 33,883 km2
487 inh. per km2 one of the most
densely populated countries in Europe
General health insurance
Hybrid system of PI compensation
Level of protection of no fault system
quite limited in various ways
Tort system always amounts to a very
substantive addition of compensation;
and often constitutes the only source of
compensation (e.g. non-employees,
other loss than loss of income)
Results: 5 important lawyer characteristics

1. Communication
2. Empathy
3. Decisiveness
4. Independence
5. Expertise
1 & 2 correspond with aspects discussed in literature
3 - 5 had only marginally been addressed in literature
Communication
(Includes information and involvement)
Positive:
Being listened to, taken seriously, responding to issues client has put
forward
Information about what was going to happen and what to expect
Negative:
Communication one-sided, comments ignored
Being left in the dark, not having a step-by-step overview
Clear preference for face-to-face contact
Forwarded letters should be accompanied by explanation
Even when nothing was happening, a call once in two months was
considered proper frequency of contact
Empathy
(Includes respect and dignity)
Participants used words such as compassionate, understanding,

interested, involved, human, accessible, personal, friendly and nice
Appreciated being treated as a human beings rather than just a
number, lawyer showing genuine interest, giving the feeling of being
there for his client, and put the clients mind at rest
Being acknowledged, understood, taken seriously
Also corrections in feeling of injustice were appreciated
Empathy
Empathy appeared to be more important in the beginning of claims

settlement process than later on:
It was a very nice person, so I always felt very comfortable. When
I look at my new lawyer, then the first lawyer was very humane. At
that time I wasnt ready for a businesslike person, now I am. I think
that Im ready for it now, because he [i.e. first lawyer] has been
there. At that time, I got plenty of space. I could tell my story, which
was very pleasant
Empathy
Participants did not expect lawyers to be psychologists

Some participants had psychological problems as a result of the
accident, injury and/or claims settlement, but they did not expect the
lawyer to help them with psychological problems
For psychological help, they went to a social worker, psychologist,
rehabilitation centre, or a victim support organization
Decisiveness
Interviewees valued an active, decisive lawyer, so that they could part
with their claim, being confident that their interests were represented
Many participants were burdened by the fact that they had to keep
their lawyer on his toes
For several participants, lack of decisiveness was the reason that their
case stagnated for an unacceptably long time. For some of them, lack
of decisiveness was a reason to switch lawyer
Some lawyers were not only passive, the even put (too) much work in
the clients hands
Decisiveness
Some complained that their lawyer was only active in sending bills:
He was a money-grabber. (...) He was a profiteer that did little or
nothing. () [The lawyer] asked whether the letters that I wrote in
response to the letters of <the insurance company> could be
forwarded in entirety, because they were satisfactory and were
good enough. In the beginning, it felt like an honour of course.
Meanwhile, I thought he was building a case, but he was doing
nothing. He only sent the letters back and forth and billed his hours
on this.
They just want money, money, money (...) You became a source
of income for the lawyer, and they dont like to lose that. They take
the longest road and not the shortest road.
Decisiveness
However, when it came to the actual settlement of the claim, some
participants were of the opinion that their lawyer acted too decisively
A couple of participants grew suspicious when their lawyer advised to

accept the compensation offer, which seemed to be caused by a lack
of information or communication
Independence
Lawyers who seemed to be too friendly and even dependent upon
the insurance company, were an important source of frustration
[up to 98% of all personal injury cases are settled out of court, and PI
lawyers are repeat players in negotiations with the same insurance
companies]
Some participants were very enraged that their lawyer did not want to
rub up the insurance company in the wrong way. They found that
their lawyer did not put himself enough in the service of the client
Independence
() he was not willing to really tackle the opposite party. The

lawyers probably think that if they sacrifice one case, then they can
win a few others. For the client, this is impossible, of course. I have
nothing to do with what he does with other cases. I am dealing with
my own case. (...) He [i.e. the lawyer] encounters the opposite
party in many other cases of course, and he didnt want to cast a
cloud upon the relationship and contacts with the opposite party.
Independence
I cannot prove it, but I am one-hundred percent sure that an
agreement was already been made between <lawyer> and <the
insurance company>. That was obvious. An agreement had just been
made: we will go for that amount, and thats done. That is being told
to me on the phone, literally. Otherwise, it will take very long. (...) The
interests of the insurance company were taken care of. They wanted
to pay as little as possible, so that both insurers could hold money in
the pockets. One time <the lawyer> helps <the insurance company>
and the other time they help in reverse. As simple as that. It was as
plain as a pikestaff. Therefore, I am not prepared to settle anymore.
(...) The whole personal injury is one big boil of corruption. Its a big
corrupt nightmare.
Expertise
Experience as a lawyer in general or as a PI lawyer in specific was
found to be a topic of discussion
A client who's lawyer had failed to explain what costs were taken into
account in the calculation of the compensation, had lost his confidence
in his lawyers expertise
Some participants noted that their lawyer did not have enough legal
experience and organizational skills to bring the claims settlement to a
successful conclusion
Expertise
Every time, I got lawyers who had just graduated. Thats no

advantage, because it means that they have to consult a lot with other
lawyers who are already seasoned. That costs a lot of money because
all those consultations have all been charged. A lawyer goes on
maternity leave and then you get another lawyer, again one straight
from university
Expertise
He surprised us one day before the trial. He said that the court might
say something about rehabilitation. That is our weakness, he said.
Then I thought to myself: why did not you say that earlier? Then
maybe we could have worked on that. No, we heard one day in
advance that this is the case. We did not stand a chance of course.
Expertise
Accuracy was also an element on which lawyers were judged whether
they were capable lawyers or not
Some participants lost the confidence that the lawyer was able to
settle the case, because the lawyer was a terrible scatterbrain who
made an incredible mess of his paperwork, or because the lawyer
made careless mistakes in the correspondence
Expertise
Same letters with different dates. Whats that? Then you get a bit
annoyed. (...) At some point, we lost confidence. We were not
really taken seriously in that respect. (...) The calculations he had
made, we really thought: how dare you! Even I can see that it is
wrong. Then I am ashamed.
Discussion
Communication: also mode (face-to-face) and frequency are important
Involvement: some do not want to be involved to much, but prefer the
lawyer to be in control => involving should be tailor-made
Empathy: appears to be more important in the beginning of claims
settlement process than later on. Probably:
- victims are psychologically vulnerable especially in the first months after
the accident, a period in which they need practical help, information and
support, and they want to talk about their experience in an attempt to
reconstruct the event and to regain a sense of control
- some victims first need to recover from the psychological and physical
trauma before they will be able to cope with the claim settlement process
Discussion
Decisiveness: fact that decisiveness has not been mentioned in literature
seems remarkable. Long duration is one of the largest burdens.
According to participants, the lawyer can contribute significantly in
delaying or progressing the compensation process
Enhancing decisiveness and better communication about what is going
on and time frames, seem to be important strategies
Independence: has hardly been discussed in lawyer-client literature, yet
was of significant importance to participants. Lawyers should find
convincing ways to deal with this issue
Discussion
Expertise: surprising finding.
Never discussed in lawyer-client literature, and we did not expect that
clients would be able to estimate legal skills of their lawyer
Through aspects like accuracy, explanation and decisiveness, some
clients were able to get what appeared to be quite an accurate picture of
the expertise of their lawyer
Perceived expertise strongly influenced client satisfaction
Discussion
Modest study confirming existing theories and finding new points of
interest for attention in the domain of client-centered lawyering
Limited generalizability: adversarial tort system, traffic accidents
Relevant for legal education, skill training, lawyer evaluation mechanisms,
PR efforts of PI lawyers (e.g. get the maximum award)
Discussion
Further research: use of established doctor-patient research methods to
gain similar insights in patient satisfaction, recall of information,
compliance to advice, quality of life, and of health, develop models of
empathic communication and construct a reliable measure of quality of
care
Client-empowerment. So far, interventions for enhancing lawyer-client
relationship have focussed on the lawyer. Interventions could also be
focussed on the client. Empowerment interventions, increasingly via the
Internet (e-Health) are found to enhance self efficacy and mastery,
improve knowledge and behavioural outcomes, reduce health problems,
and diminish depression and anxiety
Study results are to be published:

Nieke A. Elbers, Kiliaan A.P.C. van Wees, Arno J. Akkermans, Pim
Cuijpers, David J. Bruinvels, Exploring Lawyer-Client Interaction:
Towards Improving Well-being of Personal Injury Victims (submitted)
Nieke A. Elbers, Liesbeth Hulst, Pim Cuijpers, Arno J. Akkermans,
David J. Bruinvels, Do Compensation Processes Impair Mental
Health? A Meta-Analysis (submitted)

Non-Adversarial Justice and The Impact of Lawyers On Recovery From Compensable Injury-Arno-Akkermans ACHRF 2011

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The impact of lawyers on recovery of injury

1st Australasian Compensation Health Research Forum Melbourne Oct 2011