to start a process of internalization of the cost of safety. And I believe that when they have to actually pay the costs of their dangerous platforms, they’ ll change their behavior.”
What Real Accountability Looks Like
Bergman painted a clear picture of how he envisions real accountability for cases of social media addiction.
“ I see it as me not having to speak to any more parents who’ ve lost kids. No longer hearing parents describe their kids killing themselves with their cell phones in their hands. It’ s me not having to worry about my granddaughter getting sexually abused on Roblox,” he said.
“ We’ re never going to have a world where adolescence is an easy time for kids,” he added,“ but we might have a time when adolescence is just the normal frog, like it was when I grew up, and not this Circus Maximus that kids have to surmount today.”
Bergman noted that in his 30 years of law practice, he’ s never had clients less concerned about money and more concerned about justice than the parents of the victims in these social media addiction cases. Early on, Bergman explained to his clients that although he was going to take their cases, nobody had won this type of case before, and it was likely they would not be successful from a legal perspective.“ Every single one said the same thing,” he said.“‘ If one child is saved, then it’ s all worth it. If one family is spared the horror we’ ve gone through, then it’ s worth it. And if we don’ t win, we don’ t win.’”
As a lawyer who teaches legal strategy to law students, Bergman found those words to be liberating. In his classes, Bergman shares insights from Sun Tzu, an ancient Chinese military strategist, general, philosopher, and author of The Art of War.“ Sun Tzu says that when you fight with courage of despair, you can be a very effective fighting force,” he explained.“ So, we were fighting with courage of despair, and we were also fighting with the sense that this was a noble effort that superseded any pecuniary interests.”
But he added that we can’ t underestimate the importance of compensation as a cudgel to incentivize responsible corporate behavior.“ Nothing else has worked. This is truly the civil justice system performing its important role and incentivizing responsible corporate behavior. This is basic conservative Milton Friedman, classical economics. That’ s all we’ re trying to do.”
Bergman’ s dedication to the effort is crystal clear. He funded the SMVLC firm himself, spending everything he earned as an asbestos lawyer on social media addiction litigation.“ It may or may not work out. If it does great, if it doesn’ t, also great,” he said. Either way, he considers it the most important thing he’ s done as a lawyer.“ I’ m honored, really, to have been in a position to have done it, and just to represent people like these parents, against these malign companies. It’ s why I went to law school.”
Affecting Policy
Bergman has taken this fight beyond the courtroom and 72 The Trial Lawyer into Congress, including his testimony on Section 230. He sees a three-prong solution for translating litigation into what needs to change at a policy level: one in the courts of law, another in the halls of Congress, and the third in the court of public opinion.“ All three are necessary within the congressional realm,” he said.“ Imposing some accountability and standards of conduct on these companies is essential. That said, you can only regulate what you know about.
“ The beauty of product liability litigation is that it places the duty of care in the hands of the company to think proactively about design changes that will make the platform safer, whereas Congress can only identify things that have been previously determined to be deleterious and regulate those things.”
At the same time, Bergman thinks it’ s important to have legislation that is sufficiently goal-oriented and less focused on specific technological developments. For example, the Kids Online Safety Act is a federal bill designed to protect minors online by imposing a“ duty of care” on platforms to prevent harmful content and addictive design features. When Bergman started that two-and-a-half-year-long fight, online chatbots didn’ t exist. Now they do.
“ The other thing that, of course, Congress can do, and I wish it would do, is revoke the statutory immunity that companies have when it comes to kids. Every other company in America operates under a duty of reasonable care— not perfect care, not clairvoyance, but just reasonable care— the exception to social media,” Bergman said.“ There have been bipartisan attempts to either scale back or repeal the Section 230 immunity that these companies enjoy, and I would like to see those efforts continue.”
A Cautionary Note
Bergman has learned“ through bitter experience” that lawyers who choose to practice in the area of social media addiction need to be able to handle and develop support mechanisms for the vicarious trauma that they’ re going to experience.“ I thought I was pretty tough because I’ d represented mesothelioma victims for 30 years, and certainly that helped, but as a father and a grandfather, working so closely with families that have lost children was psychologically devastating and emotionally fraught.
“ This is extremely important, noble work, but as lawyers, we often don’ t appreciate the vicarious trauma that we’ re going to experience and think we can tough it out. And I’ m here to tell you, you can’ t.” How did Bergman handle that vicarious trauma?“ My marriage came apart, and I moved to New York,” he said.“ I’ m being a little flip, but I try to get enough sleep. That’ s one of the main things. I get therapy, though not often enough, and I am cognizant about my alcohol consumption and am selfaware whether I’ m having a cocktail to unwind after a tough day, or whether I’ m having a cocktail to take the pain away. One is okay, and one is not.”