What Can Good Doctors Teach Good Lawyers?

Are trial lawyers supposed to have good bedside manners?

The question itself should not be answered uncritically, or too quickly. Packed within it is an analogy between lawyering and doctoring that may well be too facilely drawn.  A recent article by Atul Gawande, a surgeon, in The New Yorker, "The last days of life," The New Yorker, August 2, 2010, pushed me headlong into a lost morning of rumination: How well do I serve the needs of my clients when it comes time to deciding whether to go to trial? Is there an analogy between doctors counseling patients at the end of life and lawyers counseling clients on the eve of trial?

Gawande is a surgeon at the Brigham and Young Hospital in Boston, and an associate professor at the Harvard Medical School. He is among a handful of medical doctors who write convincingly and well about the human dimension of medicine. (My personal favorite is Sherwin Niland.)  No one seems to be writing in this vein among trial lawyers; we favor brash chest-thumping.

Gawande takes us bedside to explore why we spend so many of our health care dollars caring for those in the final few months of life. He notes that 25 percent of all Medicare spending is for the five percent of patients in the final year of their lives.  Why do we throw money at the inevitable? Are there better choices that can be made?

Framing the question in this way pits patient autonomy against social utility. We defer, and rightly so in my view, to autonomy. But Gawande points convincingly to a third way: Shouldn't end of life decisions be governed by an ethic of enhancing the quality of life, rather than mere extension of its duration? Surprisingly, when patients are given a choice between hospice and hospital care in the treatment of end-of life conditions, many choose hospice care. Paradoxically, this may well extend not just the quality of a person's final days, but the number of days themselves.

But doctors, no less than patients, do not want to face the cold reality of a fatal prognosis. It is easier in some instances to avoid the issue by offering bland assessments -- "there is hope" -- than it is to sit cheek by jowl with a patient and family facing death and talking frankly about what the future holds.

What has this to do with lawyering, more specifically with criminal lawyering?

Whatever conduct a client may have engaged in to draw the attention of law enforcement, few clients want to be prosecuted. A prosecution, like cancer, is something that happens to a client against their will. Sure, a smoker brings the odds of cancer down upon himself, just as a drug dealer flirts with prison. But criminal law shares much with medicine: we fight invasions of liberty, just as physicians fight threats to life. Patient and client view things as happening to them; we are supposed to control these things. Many clients "catch" cases, reflecting the same process by which they come down with a common cold.

In both the case of medicine and the law, experienced practitioners develop a sense of what is reasonable to expect; I suppose this is what doctors call a prognosis. In the context of the law, a lawyer looks at the evidence, the law and available defenses when assessing a foreseeable outcome. How different is a lawyer's pretrial work from that of a diagnostician ordering tests? Both aim at the same result: What can be done to meet the crisis at hand?

Despite medicine's hybrid character as art and science, there is a growing body of statistical data that permits some objectivity in forecasting outcomes. Federal regulators, for example, engage in extensive clinical trials to decide whether to approve the use of certain drugs. All physicians have elementary training in statistics, and are trained to consult databases to assess the efficacy and risks of proposed courses of treatment for given diagnoses. Obviously, skill in diagnosis differ greatly among physicians.

Outcomes that are common fall along the middle of a bell-shaped curve, but there are foreseeable cases much worse and much better than the norm. Desperate people always seize the favorable outlier as hope: If there is a one in one thousandth chance of a cure, I want to be the one thousandth person; indeed, I expect to be that person. Medicine and medical costs are driven by the unrealistic hope that each of us will enjoy the miracle rarely dispensed.

Put in terms of a trial lawyer's life: All of our clients expect to be Rod Blagojevich or O.J. Simpson, at least on the criminal side. Sure, there was a mountain of evidence against the governor. But he was convicted, at his first trial at least, of but one count, the flimsiest count of all. O. J. was acquitted. Shouldn't well all go to trial against such hope?

There is glamor, fame and fortune to be made by lawyers riding the outliers. Gerry Spence announces he has never lost a criminal trial. We celebrate Vincent Bugliosi for much the same thing. We praise the winners and shun the losers in the high-stakes world of criminal defense. There is nothing wrong with that, but, I wonder whether the race horses of the bar actually do more damage than good when they hold themselves out as models for young lawyers.

There are times when it is foreseeable that given the facts and the evidence, a client will be convicted at trial. Isn't it a lawyer's responsibility at that time to counsel caution?

Consider the following case:  A businessman facing a white collar prosecution is told by his lawyers that he has a fifty-fifty chance of winning his case at trial. Is that really a candid assessment of the risk going forward, or the sort of evasion a physician might make when asked by a client about whether the client will die? It sounds perilously like telling a person there is hope. (There are no databases in the law to permit a practitioner to consult data on potential outcomes.)  On a plea, the client faces a handful of years in prison; after trial, the number is far higher.) Shouldn't the lawyer do more than dodge the question with a breezy sort of optimism that likens trial to a game of chance?

The client wants to hear hope, but candor may require a bleak assessment of a grim future. In the medical system evasion of difficult truths often  results in wasteful care that actually decreases the quality of life for patients suffering fatal and final illnesses. I suspect in the law there is similar waste: misplaced hope yields extra decades in prison.

Gawande is on the cutting edge of discussions about medical risk, responsibility and quality of life for patients. The law has yet even to begin this discussion in meaningful ways. Instead, we celebrate the law's outliers, lawyers smart enough to pick winners, and good enough to win most cases. (Their losses, when they have them, are rarely discussed.)

I want to meet Dr. Gawande. Better yet, I will be looking for seminars at which physicians speak about counseling patients at the end of life. I suspect trial lawyers can learn a lot from doctors.

Comments: (6)

  • I think your premise is false. If anything, it see...
    I think your premise is false. If anything, it seems that criminal defense lawyers counsel their clients to plead rather than risk the trial tax that accompanies putting the state to its burden in disproportionate numbers. Whether that is due to a lack of confidence in trial, lack of resources to spend the time and money it takes to try cases or a realistic and justified concern about the consequences of sentencing after trial. The macro problem with this is that it allows the state and the bench to continue to increase the trial tax on those few brave souls willing to exercise their right to trial and creates the cyclical course that currently sees the vast majority of prosecutions, even those in which legitimate issues that would be best suited for a jury, resolve by plea.
    Posted on August 21, 2010 at 5:11 am by Lee Stonum
  • Great point, Lee. The trial tax does undermine the...
    Great point, Lee. The trial tax does undermine the use of the analogy. But given the fact it exists what do we do in a discrete case?
    Posted on August 21, 2010 at 5:26 am by Norm Pattis
  • Well where I think the analogy is most poignant is...
    Well where I think the analogy is most poignant is that we both (CDLs and doctors) deal with a situation where we are counseling and educating clients/patients to make a decision that we are likely more equipped to make for them, but that has to be their own. We also have a great deal of power to influence that decision.
    What I always try to do on the close call case is write up a matrix for the client including what they're looking at with a plea, what the most likely outcome at trial is, some worst case scenarios after trial and some best case scenarios (not just complete acquittal, but if we beat a few counts or enhancements, how that changes things). I try to steer away from percentages and just get deeper into the facts of the case and how the evidence will play out at trial and what a jury would need to accept and reject, so long as I have a client intelligent enough to then assign some weight to those various possibilities.
    I try to steer away from hard sells in general, but I try even harder when it comes to a hard sell to accept a plea. Unless its a situation where a client has completely unrealistic expectations about what rejecting a plea may lead to, that's an inclination I am very hesitant to press against particularly if a client is telling me that they did not do what they are charged with.
    I think our duty to our clients is more than minimizing custody time and collateral consequences of their prosecution, but also to let them walk away with some dignity intact and feeling that everything that could be done in their defense was. I had a client who had a 12 year offer and was looking at upwards of 30 after trial. He understood well that nothing short of a miracle would mean less than 12 after trial, but he told me convincingly that he could not do the time if he didn't go down swinging. He ended up with a sentence in the high 20s and his tune didn't change after sentencing, he was glad that he took his swing although obviously disappointed with the results. I've asked myself whether I should have done more to convince him to accept 12 (though, frankly, I did give him the hard sell), but ultimately I think I did my job. He was fully apprised of the situation and he made his call. Right or wrong it was his call to make and all we can do is give somebody every tool we are able to so that they can make that decision in as informed a manner as possible. This seems to me the doctor's job as well.
    Posted on August 21, 2010 at 6:05 am by Lee Stonum
  • Trial tax. You have all convinced me to never pra...
    Trial tax. You have all convinced me to never practice criminal law.
    Posted on August 21, 2010 at 6:42 am by Ray Sipsa
  • Lee:
    sounds like you did all you could. Client ma...
    sounds like you did all you could. Client made informed choice. Gawande points out how often doctors are tempted to duck hard calls. I am still puzzling over the confounding fact of a trial tax. What do you make of following hypo: client faces life but refuses to consider any plea. Is lawyer obliged to bargain anyhow just to present client with options?
    Posted on August 21, 2010 at 6:47 am by Norm Pattis
  • I'd say yes, in that there is no real cost to nego...
    I'd say yes, in that there is no real cost to negotiating the best you can for the client and presenting it. I've had plenty of clients who told me "I'M NOT TAKING SHIT!!!," and then I tell them they have an offer that lets them out of custody tonight and all of a sudden they sing a different tune. Obviously, a life case isn't going to be pled for anything close to credit time served and I can't imagine, as a 20 or 30 year old, pleading to something like 30, 40, 50 years if my case had ANY issues, but life means death. If there's an option other than dying in prison, I suppose it must be considered.
    Also, you use the word obliged, I wouldn't go that far. Let's just say the lawyer should.
    Posted on August 21, 2010 at 5:36 pm by Lee Stonum

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