Bedside Manners and Desktop DistractionsAuthor(s): Peter D. BairdSource: Litigation, Vol. 13, No. 2, MANNERS AND MORALS (Winter 1987), pp. 33-35Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29759145 .

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Bedside Manners

and Desktop Distractions

by Peter I). Baird Read the turgid tabloids that cater to legal gossip and learn about

big deals, big verdicts, big firms, big dollars, and big egos. Listen to litigators' exaggerated war stories about soaring tri?

umphs, cunning strategies, feckless adversaries, and crotch?

ety judges. Litigation is heady stuff. Trial lawyers become preoccupied

with their cases, their strategies, their presentations, and them? selves. But amid all this self-absorption, who writes, worries, teaches, or talks about clients? How many litigators really care about their clients? Nobody really knows, but there are clues all around us ? in the public opinion polls, in unkind articles, in client surveys, in the crowded dockets of bar grievance com?

mittees, and in the flood of legal malpractice claims. For example, lawyers rank below funeral directors in the pub?

lic's esteem. The Gallup Report (No. 238; August, 1985). According to recent surveys, not even the nation's largest cor?

porations, with their megabucks, are entirely satisfied with the services of their outside counsel. "What Clients Want (And Are Not Getting)," The American Lawyer (Nov. 1985); "Com?

plaints Rise Against Lawyers," The National Law Journal (Oct. 27, 1986).

Setting aside all the imponderable, complex, and sometimes inevitable causes of our unpopularity, there is something law?

yers can do ? treat clients more attentively and thoughtfully. Lawyers need better "bedside manners."

The legal vocabulary does not include the words to describe the ongoing act of being thoughtfully attentive to clients. Prob?

ably "counseling" comes closest, but even that word usually connotes more talking than listening. If we lack the legal equiva? lent of bedside manners and all the human virtues those two

words have come to mean, then it is not surprising that clients

get overlooked and become alienated from their own lawyers. Think about the medical profession. Forget about the indiffer?

ence or inadequacies of many physicians today. Recall the old fashioned country doctor who was deeply committed, much beloved, seldom criticized, almost never sued, and usually effective despite limitations in training or resources. Litiga? tors could learn something from the language of the medical

profession. Doctors talk of "care," with the focus directly on the individual

Peter D. Baird is a partner with Lewis and Roca in Phoenix, Arizona.

patient. Litigators speak of "representation," with the focus not on the client but on courts, adversaries, and other audiences for their rhetorical performances. Trained and inclined to rep? resent but not necessarily to care for the client, litigators fre?

quently are swept off to battle and quickly lose touch with the

person or entity whose interests are the reason for the battle in the first place. Litigators should begin to think not only in terms of represen?

tation but also in terms of client care. That care means promptly returning telephone calls; keeping the client completely informed; including the client in every major decision; listen?

ing patiently; preparing the client for the depositions, the trial, and the unforeseeable; being sensitive to the human and finan? cial strains on the client; and creating a strong enough sense of trust so that the client's faults, mistakes, and even misdeeds can be openly discussed.

Of course, it is easy for lawyers to do these things for the client who has the dollars, fame, personality, respectability, and sophistication to make the representation materially and

professionally rewarding. But just as doctors are supposed to treat the sick regardless of their patients' status or finances, so too should lawyers represent and care for those clients who

may be in real trouble, who may have fallen on hard times, whose cases may stir public controversy, or whose problems may be vexatiously difficult. Indeed, the true test of client car?

ing usually comes when the client is under siege. Typically, doctors consider whether a patient is a suitable

"candidate" for a suggested treatment like surgery or chemother?

apy by assessing factors that go far beyond the symptoms of the ailment to be treated. Doctors know that a procedure may successfully cure the original disease but harm the patient in other ways.

Lawyers rarely ask or think about a client's candidacy for

litigation. They should. While trained to analyze the facts, cases, rules, and statutes,

lawyers are usually not in the habit of looking beyond the par? ticular problems presented to them. All too often, major liti?

gation decisions are made simply because a claim satisfies Rule 11, or a defense is justifiable and a fee is assured. Litigators seldom pay enough attention to the proverbial Big Picture. When considering candidacy, litigators should evaluate the

Litigation Winter 1987 Volume 13 Number 2

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potential secondary effects of litigation, beyond the immedi? ate circumstances of the lawsuit. This is very hard to do because

clients, even very sophisticated ones, often fail to present the

litigator with the full context or the complete range of poten? tial ramifications. The litigator should dig into the pertinent facts, rather than relying on the client to know and disclose what is relevant.

Examples abound. When dealing with a personal or family problem, consider the client's health, age, employment, finances, insurance, family circumstances, available time, per? sonal objectives, and emotional stability before recommend?

ing litigation. For instance, it ordinarily does not make sense for an elderly or infirm person to be engaged in protracted litigation. For governmental or public institutions, litigation can have

ramifications that involve budgetary limitations, funding eligi? bility, legislative relations, interdepartmental conflicts, long range policies, and, of course, political considerations. How

many agencies, attorneys general, prosecutors, or public offi? cials have made fools of themselves or shambles of their respon? sibilities by pressing or defending star-crossed litigation?

Candidacy is a concept that applies also to large corpora? tions. After all, lawsuits can affect a complex array of plans, people, and products that have no direct connection with the case at hand. For example, lawsuits may have important con?

sequences for corporate reporting requirements; credit lines;

bonding capacity; supplier, customer, or employee relations; regulatory compliance; personnel availability; stock offerings; and mergers.

Especially with corporations, but also with governmental entities, there is a dangerous tendency to overlook other pend? ing or impending litigation when grappling with the facts and issues of a particular case. Time after time, positions are taken in one lawsuit that conflict with or undermine positions taken in another suit involving the same company or public body. The effect is often disastrous for both.

If litigators are to rise above the seductive immediacy of the

claim, defense, strategy, or tactic at hand, and become sensi? tive to the client's whole situation, then perhaps a new word should be added to the legal lexicon. "Holistic" might be

appropriate. But "candidacy" is my candidate. In medicine, patients are often encouraged to get a second

opinion. In litigation, second opinions are a rare exception to the rule that a client's cause is entrusted to a single trial lawyer. Given this jealous territoriality, lawyers inherently resist

independent review or outside opinions when clients seek their advice on litigation matters. While there may still be some kinds of routine litigation that

one lawyer can competently handle without consultation, our world and the litigation it spawns have become maddeningly complex. What to an unwary litigator may appear to be a

straightforward claim or defense on a promissory note might also be a sophisticated truth-in-lending problem or constitu? tional due-process issue. Litigation over a fast-food stand may be pregnant with Federal Trade Commission issues and fed? eral trademark problems. A seemingly simple domestic case

might be fraught with difficult tax and appraisal issues.

In virtually every area and in almost every case, there is the

potential for the hidden, the subtle, and the complex. Consul? tation with specialists and second opinions are often no longer luxuries but necessities. After all, clients deserve the best possible advice (and care),

and that can rarely come from one lawyer alone. There is hardly a serious case that does not merit consultation with specialists and second opinions at virtually every stage.

Due in large measure to malpractice litigation, product lia?

bility cases, and government regulations, health-care profes? sionals must often disclose contraindications, side effects, and risks. Without giving their patients an opportunity for "informed

consent," doctors, hospitals, and pharmaceutical companies leave themselves open to trouble.

In litigation, cases are almost never what they initially seem. Costs are rarely as low as originally projected. Adversaries seldom behave as one might hope. Delays are usually longer

Nature can solve legal problems as well as cure diseases.

than anticipated. And original objectives are very often sub?

ject to adjustment or outright frustration. People are imper? fect and so is the system. That is reality.

If clients are entering this imperfect system, especially for the first time, they need and deserve risk information. Blunt, honest, realistic information. While not destroying hope or

undermining confidence, litigators should tell their clients about all the bad things that can happen in a lawsuit.

For example, lawyers typically explain their hourly rates; but how often do they make realistic projections about the num? ber of hours that may be required to prosecute a lawsuit and to deal with the unexpected problems that inevitably crop up between the filing of the complaint and the settlement or final

judgment? How frequently do plaintiffs' lawyers take their clients through potential counterclaims that may be triggered by launching the action? How many defense counsel engage in even rudimentary cost-benefit analyses with their clients to determine whether a fiill-scale defense makes any sense? Why do many settlements and plea bargains occur after months or even years of unenlightening and costly pretrial procedures? Many clients get more risk information from a cough-syrup

label than from a legal consultation. Even when risks are bluntly disclosed, the warnings frequently come late in the proceed? ings and only after lawyers realize that they had better cover their derrieres. No wonder so many people like funeral direc? tors better than lawyers. When confronted with illnesses that will go away without

treatment, doctors often let nature take its course. For exam?

ple, apart from the traditional advice to "drink fluids, get plenty of rest, and take aspirin," the proper treatment for the com? mon cold is to do nothing. More than anything else, time will heal.

It is very difficult for lawyers, especially litigators, to tell a troubled client to do nothing, either permanently or temporar? ily. Litigators are kinetic creatures aroused by competition.

When a client consults a litigator, litigation is the predictable result. Disquietingly apropos is the old warning that you do not ask a barber if you need a haircut.

There are many occasions when telling a client to do noth?

ing, either temporarily or permanently, is the best legal advice.

Litigation Winter 1987 Volume 13 Number 2

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Nature can solve legal problems as well as cure diseases. Tem?

pers may cool. Threats may not be carried out. Markets may improve. People may change their minds or die. Compa? nies and governments often alter their policies. Damages may be avoided. Statutes may be amended. Case law may develop. Better facts may surface. Patience may be the right prescription.

Litigators are trained to worry about statutes of limitation and procedural deadlines. But time and patience also can

improve things. Litigators should look for potential non

litigation solutions to their clients' problems, including the pos? sibility of letting events take their course.

Tatrogenesis" is defined as physician-induced illness. And it happens more than health-care professionals like to admit. "Iatro" comes from the Greek word for physician; "genesis," of course, means to create.

Lawyers too can create problems for their clients. Yet there is no word to describe this phenomenon. "Malpractice" is a familiar word, but it does not cover legal problems caused by lawyers who are acting with complete technical proficiency. Many litigators have concluded long, frustrating, and expen?

sive litigation only to hear their clients, even the "winners," express grave doubts about having filed or defended the case in the first place. Litigators frequently make decisions and take

steps that are unimpeachably sound from a technical point of view, but have dreadful consequences for the client or the case.

Examples Are Endless I suggest that we coin a new word to describe lawyer-induced

problems: "barigenesis." Barigenesis would cover those situa? tions in which the client has been hurt, the case has been weakened, or the cost has been multiplied through a lawyer's actions or decisions that may be technically sound and there? fore may not amount to malpractice. For example:

? Seeking immediate equitable relief may be perfectly

proper. However, presenting facts, exposing witnesses, and

bearing steep evidentiary burdens early in the case, when so much is uncertain, can frequently lead to premature reso? lution of important issues on an imperfectly developed rec?

ord, and ultimate failure. ? There certainly are virtues in litigating cautiously. Yet con? servatism may be "barigenetic" if litigators are afraid to take shots that may land wide of the mark or may penetrate the heart of the other side's case. ? Depositions are an indispensable litigation tool. Yet take

too many, take too few, or take the wrong ones and the effects can range from extra expense to calamity. How many times would a simple telephone call have made all the difference in preparing, defending, or completely avoiding a deposi? tion? How often are depositions taken too early

? before the documents and facts have fully developed

? or too late ? after the witnesses have forgotten the facts or lost the interest or the fervor that would have made their testimony far more effective? ? Being tough, hard-nosed, and aggressive is sometimes necessary, often impressive to clients, and normally ethi? cal. But push usually begets shove. Discovery disputes spring up and get out of hand. Jurors and judges react poorly to intemperate behavior. Costs explode. And substantive

strengths and settlement prospects get lost in a cloud of law

yerly rancor. ? Punitive damages are warranted in some situations, but not nearly as often as they are requested in claims and coun

terclaims. Unwarranted punitive damage claims can

unrealistically inflate clients' expectations, personalize the

litigation, heighten tempers, prolong trials, and escalate costs. ? Under the Federal Rules of Civil Procedure, it is perfectly proper to write pleadings using simple allegations of the basic elements of each claim, or general denials. Overly complex or wordy pleadings may contain what later turn out to be damaging admissions, sources of embarrassing impeachment, and untenable positions. These vices are

compounded if the pleading denials are verified or affirmed

by the client in a deposition. No matter how many subse?

quent amendments are made to change, delete, or clarify the pleadings, loosely constructed pleadings can create inconsistencies or establish positions from which there may not be any clean retreat. Such is the stuff of barigenesis. The examples are endless.

With the word barigenesis may come the concept. And with the concept may come sensitivity to the ever-present potential for harmf?l repercussions that result not necessarily from mal?

practice but rather from overlawyering or underlawyering. Clients pay lawyers to achieve the most desirable result as

quickly and cheaply as possible, not to get caught up in the

sport of litigation. In recent years, the concept of peer review has gained accep?

tance in the medical profession. Typically, hospitals establish

peer review committees that oversee the performance of phy? sicians in a variety of medical as well as surgical areas. While the quality and effectiveness of these review mechanisms vary, they generally enhance the prospects for competent professional care.

In the law, quality control is most often left to vague cus? toms or standards within firms, law departments, or govern?

ment agencies; to malpractice actions; to grievance commit? tees and, in some states, to loose certification or oversight procedures administered by courts or bar associations. Often these review mechanisms are triggered only when clients com?

plain. Almost never are lawyers reviewed routinely to improve the service they render to clients and to enhance the justice system.

Litigators and their clients would benefit from institutional? ized peer review procedures within law firms, corporate law

departments, and government legal staffs, and even among cooperating solo practitioners. If litigators are not motivated to establish peer review procedures on their own, then per? haps malpractice insurance carriers, with their skyrocketing rates, will eventually insist upon them as a condition to

coverage.

New Concepts A seasoned trial lawyer once observed that the perfect cli?

ent is rich, angry, and wrong. This quip captures a cynicism far too common among trial lawyers. But, slowly, times are

changing. Fewer and fewer clients uncritically turn over litiga? tion to their lawyers without accountability. The patients' rights

movement may one day have its counterpart in the law.

Litigators must do more than simply avoid malpractice; they must learn to care about their clients, even at the expense of

ego gratification or bigger fees. That takes work. But it also

may require new concepts. Some lessons from our counter?

parts in the medical profession may be just what the old juris doctor ordered. D

Litigation Winter 1987 Volume 13 Number 2

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