Trial Magazine

Over the last few years, in my role with the Arkansas Trial Lawyers Association, I have had the opportunity to speak with hundreds of people of different ages, races, religious and political viewpoints, and education and income levels. Some of these conversations were framed around one tragic event with others around broader community issues such as guns or immigration. These conversations boil down to one simple question: What is justice?

Our founders gave us two important tools to help guard against wrongdoing, corruption, and injustice. First and ¬foremost, they gave us a government of the people, by the people, and for the people. By simply casting our ballots, we can change the course of our nation. Second, they gave us the Bill of Rights—including the Seventh Amendment right to trial by jury. We and our fellow citizens have the right and responsibility to hold our government and corporations accountable for misconduct.

We often see profit-driven corporations make decisions that place Americans in harm’s way, sometimes with reckless disregard, and then they don’t want to remedy the damage they have caused. What would happen if the civil justice system did not exist? How would they be held accountable? That thought is what gets me out of bed every day, and it is why I fight to protect the civil justice system and a citizen jury.

We have a duty to protect the Seventh Amendment when corporations and politicians try to strip away the people’s power. As a collective group, trial lawyers are the people’s lawyer and stand up for the Seventh Amendment every day.
Here are some of the insights that I have learned while advocating for the Seventh Amendment and a strong civil justice system.

A Snapshot of Voters’ Opinions
In a 2017 national survey of 1,000 registered voters 18 and older from both sides of theparty aisle, AAJ asked participants about their impressions of civil justice in America.

70%
said protecting constitutional rights was a very important goal of the civil justice system.

67%
said protecting public health and safety was a very important goal of the civil justice system.

60%
said they trust juries to hold corporations accountable, and 79% said they have little trust in the government to hold corporations accountable.

58%
think the system is biased in favor of big corporations.

81%
opposed forced arbitration in nursing home cases.

1 Believe. To be a successful advocate, you must truly believe in that for which you are advocating. You cannot fake sincerity. When I meet candidates running for elected office, I ask them why they are running, what drives them, and what they believe. After listening to their answer, I share my thoughts on the civil justice system with them. I often share a deeply personal story of the injustice I have witnessed loved ones suffer in my own life, and sometimes they share a personal story in response. It seems that almost everyone has experienced some form of injustice, and these real-life experiences viewed through our own belief systems allow us to connect the abstract idea of justice to the tangible world in which we live.

2 Listen. As my grandma would say, “There is a reason we have two ears and one mouth.” You can’t hope to lead someone with a different viewpoint to where you stand without first understanding where he or she is coming from. The first step in directing someone to your position is actively listening to understand not only what that person believes but, more important, why he or she believes it. Once you know the person’s starting point, then you can provide him or her with a roadmap to your point of view.

Listening also means that you might learn something valuable from the other person—and by understanding your audience, you can tailor your argument to that perspective. I recently spoke to a group of rural Southern voters who favored a damages cap. I tried to describe the tax-shifting burden caused when a tortfeasor does not make full restitution and an injured person must rely on some form of government assistance—with little to no success. One woman said, “I don’t think it’s fair that I have to pay for their mistake,” followed by a gentleman in strong agreement who said, “I shouldn’t be forced to pay for their bad choices.” After that conversation, I simplified my explanation of how a tortfeasor shifts costs to taxpayers when arguing against damages caps based on those responses.

3 Simplify. Never use two words when one will do, and lead with the “why.” When I started working as an advocate in public policy, I was told that everyone needed an elevator speech—everything you wanted to tell a lawmaker boiled down to the two minutes it takes to ride the elevator up or down a couple of floors.

Today, when policy is debated 280 characters at a time, I would argue that you need an escalator speech—the time it takes to pass one another going up or down on an escalator. I challenge myself to state my entire point of view in 27 words or nine seconds. When time allows, you can always expound, but if time is limited, it is hard to cut down a 30-minute presentation to five minutes.

4 Choose your words carefully. I am fond of saying that words get in the way of communication. Every word has at least one definition but also a different connotation or meaning attached to it for every person. We must be aware of how the audience interprets the words that we choose to use.
For example, people who believe that all lawsuits are frivolous may interpret legal jargon such as the phrase “pain and suffering” to mean “fake injury” even though they can give an excellent definition of the individual words that clearly mean otherwise. Once we understand what “pain” and “suffering” really mean to them, we can show that “pain and suffering” is intended to mean just that.

5 What is justice? I have found that most people have a hard time answering such a simple question with a simple answer. Sometimes you get variations of the golden rule (do unto others as you would have them do unto you), but most of the time, you get an example of injustice—a personal story of something that has happened to them or a loved one. It seems that justice is the natural state of the universe, and we can only sense it when it is disturbed.

Once, after a long pause, a man answered the question “what is justice” with “that is like asking a fish what is water.” When advocating for the civil justice system, I find it best to tell the stories of injustice. After hearing all the facts and both sides of the story, challenge people to come up with a fairer way to apply the law to that situation than to have a group of randomly selected citizens hear the evidence and collectively decide what is just.

Almost everyone can give an example of injustice, but it is our ability to connect those acts of injustice with the ideal of what the civil justice system is meant to do that will direct people toward a deeper understanding and appreciation of the Seventh Amendment.

Report Highlights Economic Role of Civil Justice

A report from the Center for Progressive Reform—“Civil Justice in the United States: How Citizen Access to the Courts Is Essential to a Fair Economy”—presents four civil justice case studies that demonstrate how the ability to hold wrongdoers accountable ensures socioeconomic balance by equalizing powerful, wealthy corporations with injured people who should not bear the financial burden of those corporations’ misconduct. Tort “reform” efforts from forced arbitration to damages caps unfairly shift that balance in favor of defendants, and the courts are essential for correcting it, especially when regulatory agencies and legislation fail to do so. To read the full report, visit https://tinyurl.com/y8hd8wk9.

Matthew Hass is the chief executive officer of the Arkansas Trial Lawyers Association. He can be reached at mhass@arktla.org.