the florida bar trial lawyers section advocate the
TRANSCRIPT
THE FLORIDA BAR TRIAL LAWYERS SECTION
Vol. XXXVII, No. 2 November 2007www.flatls.org
Chair’s Message By Bradley E. Powers, Chair, Trial Lawyers Section
The Executive Council of the Trial Lawyers Section continues its efforts to provide high level and timely Continu-ing Legal Education for its members and others. We also con-tinue to keep our eye on the legisla-
tive arena to promote the interests of trial lawyers and judges and to insure that every citizen’s right to access to the courts is protected. I am honored to be associated with the volunteers that
make up your Executive Council, and I pledge to you that we will continue to work hard to uphold the fine tradition of the Trial Lawyers Section. The legislature will be in session by the time you read this column, however, your Executive Council has been tak-ing the pulse of the various legislative bodies for months now. Friday morn-ing conference calls with the Section’s extraordinary lobbyist, Arthur “Buddy” Jacobs, keeps the Council abreast of any potential issues that effect the Section or access to the courts. To date, it appears that the legislature has
See “Proper Care,” page 15
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AdvocateThe
THE PROPER CARE AND FEEDING OF CLIENTSby Stephen Hayne*
Practicing law must be the best job in the world. Why else are so many best selling books, movies, and television shows devoted to our profession? And where else could we get paid so much for essentially, well, standing around talking? No wonder everybody hates us but wants to be us at the same time! Despite its obvious benefits, it is a tough business. To keep the wolves at bay, you have to get clients in the door. Then you have to sign them up. Then you have to get them to pay a lot of money. Then you have to tell them bad news. Then you have to make sure they leave pleased with what you did for them. Doing all that ain’t easy. Every once in a while I hear friends complain, “You know, the practice of law would be great if it weren’t for the clients.” It’s sometimes true: Client relations can be the hardest part of the business. But there are some basic steps you can take to make it a lot easier and more gratifying for both yourself and your clients. First: recognize that clients usually come to us in terrible distress – afraid, confused, ashamed, defiant, and an-gry. Many lawyers are uncomfortable dealing with their distress. After all, it’s really quite irrelevant to the legal problem, isn’t it? No, it’s not, and it is also critical to
what kind of relationship the lawyer and client are going to have, from begin-ning to end. The failure to appreciate and empathize with the client’s psycho-logical struggle will be a barrier to good client relations, no matter how brilliant the lawyer or fantastic the result, if there is a single prerequisite, a single key to keeping clients happy, it is seeing them as someone who is suffering first, and as someone with a legal problem second. Doing so offers the client the
most fundamental component of a good lawyer/client relationship: trust. Trust that the lawyer is on the client’s side no matter what the client did, no matter how worthless the client feels. Trust that no matter how ugly it gets, the lawyer won’t cut and run. Consider what the client is expe-riencing when he walks in your door: “There’s a monster trying to break down my door, it wants to destroy me and I’m
Parental Alienation Syndrome - junk science or legitimate excuse? .......................................................3The four theories holding defense counsel liable to insurers for malpractice are all problematic ...........4Do apologies really work? .......................................................................................................................8Is the modern day, technologically proficient lawyer better for clients? .............................................................10
INSIDE:
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been primarily focused on property insurance and tax issues, however, I can almost guarantee you that the session will not pass without a number of proposed bills that potentially effect your life as a trial lawyer. Many thanks to Buddy for keeping the Executive Council informed of the goings-on in Tallahassee. The CLE Committee, chaired by Robert E. Mansbach, Jr., of Orlando, has done an excellent job with updating the courses historically put on by the Section. Education of our members and future trial lawyers is of primary im-portance to the Section, and we all need to thank the experienced trial lawyers and judges that volunteer their time to educate the rest of us. Many thanks to John W. Salmon of Miami and John Pankauski of West Palm Beach for
chairing the ADR Seminar held in January and Edward K. Cheffy of Naples for his hard work on the Civil Trial Certification and Review Course held in February. The Medi-cal Malpractice Seminar was held in March under the direction of Glenn Burton of Tampa and Tom Master-son of St. Petersburg. I highly recom-mend the Florida Medical Malpractice Handbook published by The Florida Bar and the brain child of Glenn and Tim. Robert C. Palmer, Ill of Pen-sacola and Glenn Burton of Tampa are ready to roll with the Advanced Trial Advocacy Program held at the University of Florida College of Law on May 8 – 12, 2007. The faculty for this interactive trial seminar is made up of state and federal trial court judges in addition to excellent trial lawyers from around the state. The course has been approved as a trial credit for re-certification purposes by the Board of
Legal Specialization and Education in addition to providing excellent training for those who have had some difficulty getting their cases to trial. The Section is particularly proud of our partnership with the Chester Bedell Memorial Foundation. The 2007 Chester Bedell Memorial Mock Trial Competition was held in Miami in January. This program provides law students from throughout the State of Florida with experience in developing and utilizing trial skills in a trial set-ting before federal, circuit and county court judges with practicing attorneys providing feedback to the participants and scoring each round. I assure you that nothing feels better than giving back to law students and budding trial lawyers, and I encourage you to par-ticipate. Jonathan Proctor Lynn and Eileen Tilghman Moss of Miami ran another great competition this year. The Section also partners with the Foundation putting on the Trial Lawyers/Chester Bedell Foundation Luncheon at the Florida Bar Conven-tion. The luncheon focuses on the inde-pendence of the American lawyer, and we look forward to hearing this year’s luncheon speaker, Lt. Commander Charles D. Swift. Lt. Commander Swift is assigned in the Office of the Chief Defense Counsel in the Depart-ment of Defense Office of Military Com-missions and is currently detailed to represent Salim Ahmed Hamdan who is facing trial by military commission. The Section continues with its an-nual update of the ‘Handbook on Dis-covery Practice” and the “Guidelines for Professional Conduct” which should be required reading for all Florida trial lawyers. Both of these useful resourc-es can be found at the Trial Lawyers Section website ( maintained under the watchful eye of Frank Bedell of Orlando. Many thanks to Professor Michael Flynn for his hard work in coordinating and editing this newslet-ter, The Advocate. The Trial Lawyers Section continues to be one of the strongest and most re-spected sections of the Bar. That would not be possible without the work of our Section Administrator, Connie Stew-art, and our tremendous volunteers. I thank you on behalf of the Executive Council for the opportunity to be of service.
— Bradley E. Powers, Chair
CHAIR’S MESSAGEfrom page 1
The Advocate is prepared and published by the Trial Lawyers Section of The Florida Bar.
Bradley E. Powers, Tampa ............................................................................ChairRobert C. Palmer III, Pensacola ..........................................................Chair-electRobert C. Palmer III, Pensacola ............................................................ SecretaryMark P. Buell, Tampa ........................................................ Immediate Past ChairMichael Flynn, Ft. Lauderdale ................................................................... EditorConnie Stewart, Tallahassee ..........................................Program AdministratorClay Shaw ........................................................................ Graphic Design/Layout
Statement or expressions of opinion are those of the editor and contributors and not of The Floida Bar or the Section.
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JUNK SCIENCE OR TRUTH?‘Parental Alienation Syndrome’ Increasingly Cited in Child Custody Fightsby: Amy Hetzner*
The last time the Delafield salesman saw his three younger children out from under the eye of court-appointed super-visors was for an after-school goodbye nearly a year ago. He has never seen the 27-page report that he says took them away from him. Sealed in the file for his divorce case, he has only heard of the accusation it whispers about him: parental alienation syndrome. And ever since it was writ-ten by a court-appointed therapist and given to a family court judge, the father has struggled to fight an accusation that some say is becoming more common in custody cases, that of alienating a child against a parent. “I’ve been tried, convicted and thrown away,” said the father, who is not being named to protect his children’s identi-ties. Similar scenes are playing out in courtrooms across the country, drawing attention to a psychological phenom-enon that some call a real aspect of cus-tody battles and others call a potentially dangerous excuse for child abusers. Parental alienation syndrome con-tends that children can be manipulated by one parent into rejecting and falsely accusing another parent. The concept has not undergone enough scientific testing to be listed in the Diagnostic and Statistical Manual of Mental Disorders used by mental health professionals. But that hasn’t stopped its use in courtrooms or its support from some therapists. Critics say that parental alienating syndrome capitalizes on the difficulty inherent in proving abuse, especially among very young and non-verbal chil-dren. “PAS is an evil device used by immor-al lawyers, psychologists and judges,” said Jim Shields, executive director of Houston-based Justice for Children, which has intervened in court in opposi-tion to parental alienation arguments. “This syndrome is bogus.” Physical evidence is rare in children who have been sexually abused, said Lynn K. Sheets, medical director of the
Child Protection Center at Children’s Hospital of Wisconsin. She estimated that, even with penetration, 95% of girls who have been sexually assaulted would have normal physical examinations. Without that sort of evidence, abuse claims are greeted with some skepti-cism, especially when there’s a whiff that they could be used to gain the upper hand in a custody dispute, law enforce-ment officials say. But Douglas Darnall, an Ohio psy-chologist and a specialist in parental alienation, called claims that parental alienation syndrome is nothing more than junk science a “diversion.” “The issue is not really the label,” Darnall said. “The issue is the pattern of behavior.” A parent who denigrates a former partner, schedules activities to interfere with the other parent’s plans, listens in on phone calls and acts like a child’s rescuer from the other parent could be guilty of alienating behavior, he said. If the parent is successful, the child will develop an irrational hatred for the oth-er parent and an inability to forgive. “Anybody who has dealt in any depth with custody cases will have seen alien-ation,” Darnall said. The first time Randi Erickson, a Hud-son psychologist, presented a report to a family court judge diagnosing a case of parental alienation syndrome was about six years ago. Of the judge’s response, she said, “I can’t remember the exact statement, but it had to do with the fact that that was exactly what he was see-ing.” The American Psychological Asso-ciation has no official position on the syndrome. But those involved in cases in which alienation has been alleged have different takes on its use and its acceptance by the courts. Even though two psychologists have issued reports citing parental alienation syndrome by his ex-wife and recom-mended he gain full custody of their two daughters, one Webster parent said of-ficials in Burnett County have not taken it seriously.
“They think it’s a big joke and it’s a made-up thing,” said the father, who has been acquitted of battery and whose child-molestation charges have been dismissed, part of what he thinks is his ex-wife’s campaign against him. If the psychologists had not men-tioned the syndrome “and just said my ex-wife was psychotic, delusional and all this and needs help – never once men-tioned this disease – it would have to-tally probably been different,” he said. But an Oconomowoc mother, who said her older daughter first disclosed when she was 2 that she had been assaulted by her father, expressed frustration in a system that has not charged her ex-husband with a crime and has accused her of alienating their children against him. She acknowledges that some of what has transpired over her four-year cus-tody battle looks bad for her. Several witnesses hear her tell her former hus-band that he would not see his children again the day before she said her daugh-ter reported abuse. She also is on her sixth attorney and has switched her daughter’s therapist several times. The mother said her actions have been misinterpreted by officials. “Every single thing that I’ve done is to protect these girls, because (the courts are) not doing it,” she said. “And, instead of looking to protect them, I look in (the court’s) eyes, as more vengeful.” As for the Delafield father, he said he continues to be blamed for the bad relationship between his children and their mother even though he has been allowed only supervised visits with his children over the past year. “They want me to control the kids when I don’t have control of the kids,” he said. “I can’t do that. And it’s just maddening, is what it is. . . .This whole theory that the psychologist should have that much power is unbelievable.”______________________________ *Amy Hetzner is a staff member of the Milwau-kee Journal Sentinel. This article is reprinted from the October 2, 2006 edition of the Milwau-kee Journal Sentinel(c)
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LEGAL BASES FOR CLAIMS BY LIABILITY INSURERS AGAINST DEFENSE COUNSEL FOR MALPRACTICEBy William H. Black, Jr. And Sean O’Mahoney*
Although the issue is relatively new to American jurisprudence, the major-ity of states permit a liability insurer to sue defense counsel for negligent representation in an underlying action. The theories under which the insur-er may assert such a claim, however, vary substantially. Four theories have emerged: the tripartite relationship theory, the third-party beneficiary the-ory, the equitable subrogation theory, and the Restatement theory. Whether a court will allow a claim of negligent representation and under what theory depends largely on its characterization of the relationship between the insurer, its insured, and the insured’s attorney and the circumstances under which the attorney was retained. Courts that have disallowed an insurer’s suit against an insured’s at-torney generally have rejected one or more of these theories by construing the attorney-client relationship nar-rowly. These courts have also taken the position that public policy con-cerns–protecting the legal profession and the sacrosanct relationship be-tween attorney and client–outweigh considerations of equity in transferring the loss an insurer may have suffered as a result of attorney malpractice to a potentially negligent attorney.
The Four Theories
The tripartite relationship theory. Courts that recognize the “tripartite relationship” between the insurer, the insured, and counsel consider the in-surer and the insured to be co-clients of the firm in the absence of a conflict of interest.1 Under this approach, the attorney hired by an insurer to defend an action against the insured owes fiduciary duties to two clients: the in-surer and the insured.2 Consequently, when, in accordance with its contrac-tual obligation, an insurer hires coun-sel to defend its insured, the retained attorney owes a duty of care to the insurer that will support an indepen-
dent right on the part of the insurer to bring a legal malpractice action for acts committed in the representation of the insured, provided that the interests of the insured and the insurer are not in conflict.3
Courts have, however, employed varying approaches to determining whether such a relationship between the insurer and defense counsel ex-ists. For example, when determining whether a law firm represented both an insurer and its insured, in Marten Transport, Ltd. v. Hartford Specialty Co.,4 the Wisconsin Supreme Court based its analysis on agency princi-ples derived from the Restatement (Second) of Agency and held that the relationship between the law firm and insurer depended upon the intention of the parties.5 By contrast, the Su-preme Court of Minnesota rejected the application of Minnesota’s general rules regarding formation of an attor-ney-client relationship under contract and tort theories in this context in Pine Island Farmers Co-Op v. Erstad & Riemer, P.A.6 because of the unique circumstances of the defense counsel’s “dual representation.”7 The court in Pine Island Farmers explained that “in light of the insurer’s right to control the defense of claims, exchanges of infor-mation between defense counsel and insurer–including exchanges in which the insurer seeks, receives, and relies on legal advice from defense counsel–are bound to occur.”8 To hold that these exchanges were sufficient to create an attorney-client relationship between defense counsel and the insurer, the court concluded, would result in a rule that defense counsel represents the insurer in virtually every insurance case and would allow dual represen-tation without the insured’s consent or knowledge of the risks inherent in such a situation.9 Accordingly, the Min-nesota court opted to supplement the general rules governing the formation of an attorney-client relationship with the following additional requirements:
(1) the absence of a conflict of interest between the insured and the insurer, and (2) the express consent of the in-sured, after consultation with counsel, to dual representation.10 Without the consultation and express consent of the insured, the court explained, defense counsel represents only the insured, and the insurer does not have standing to maintain a malpractice suit against defense counsel on the basis of an al-leged attorney-client relationship.11
The third-party beneficiary theory. A few courts have based their hold-ings that an insurer has a right of action against defense counsel on the conclusion that the insurer was an intended third-party beneficiary of the relationship between the insured and the attorney.12 A third-party beneficia-ry contract typically arises when two parties enter into an agreement with the intent to confer a direct benefit on a third party, allowing the third party to sue on the contract despite a lack of privity.13 This theory is an especially useful vehicle for a primary insurer that asserts a claim against counsel for the insured whom it did not retain.14
The principal point of disagreement among the courts applying this doctrine is the question of the degree of intent required to invoke the doctrine. Most courts require the purported third-par-ty beneficiary to allege and prove that the actual intent of the client to benefit the nonclient was a direct purpose of the transaction.15 For example, in Na-tional Union Insurance Co. v Dowd & Dowd, P.C.,16the court rejected the ap-plication of the third-party beneficiary rule to find an alleged attorney-client relationship between defense counsel retained by the insured and an excess insurer because the record contained no clear indication that the attorney was retained to benefit the excess insurer.17 In Grinnell Mutual Reinsurance Co. v. Franks, Gerkin & McKenna,18 however, the same court later determined that an insurer’s mere allegation that its
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insured retained the defendant law firm to contest a default judgment for which the insurer had been subject to a garnishment action was a sufficient allegation of third-party beneficiary status, such that the insurer’s mal-practice claim could survive a motion to dismiss for failure to state a claim upon which relief could be granted, pursuant to Federal Rule of Civil Procedure 12 (b)(6).19 The court held that it was suf-ficient for the insurer to have alleged only that if the attorney retained by the insured had set forth a successful defense in the underlying litigation, the insured would not have been found liable and the insurer would not have had any indemnity obligations.20
The equitable subrogation theory Under the theory of equitable sub-rogation, an insurer may assert its in-sured’s claims for malpractice against counsel retained to defend the insured. Subrogation is predicated, generally, on the equitable doctrine that one who has indemnified another in pursuance of the indemnitor’s obligation to do so is entitled to the means of redress held by the party indemnified against the person causing the loss.21 The rationale is that injustice should be prevented and the economic burden of tortious conduct should be shifted to those re-sponsible for the loss.22 Accordingly, courts permitting an insurer to sue the insured’s counsel under this theory hold that it would be inequitable to place the burden of legal malpractice on the insurer, “allowing a negligent attorney to escape the consequences of his misconduct, merely because the insured lacks the economic incentive to sue.”23
The doctrine of equitable subroga-tion has been employed as a middle course between outright recognition of dual representation and permit-ting negligent attorneys to escape the consequences of their conduct merely because no person has both the motive and standing to sue them. As explained by the Supreme Court of Michigan:
To hold that an attorney-client rela-tionship exists between insurer and defense counsel could indeed work mischief, yet to hold that a mere com-mercial relationship exists would work obfuscation and injustice. The
gap is best bridged by resort to the doctrine of equitable subrogation to allow recovery by the insurer. Eq-uitable subrogation best vindicates the attorney-client relationship and the interests of the insured, properly imposing the social costs of malprac-tice where they belong. Allowing the insurer to stand in the shoes of the insured under the doctrine of equitable subrogation best serves the public policy underlying the at-torney-client relationship.24
The Restatement theory. Some courts have adopted the theory set forth in the Restatement (Third) of the Law Governing Lawyers to support holdings that a lawyer designated by an insurer to defend an insured owes a duty of care to the insurer with respect to matters as to which the interests of the insurer and the insured are not in conflict, whether or not the insured is a co-client of the lawyer.25 It should be noted that this theory closely re-sembles the third-party beneficiary analysis, which arises out of common law, and courts have employed it to al-low an insurer’s malpractice claim to proceed in lieu of determining whether the third-party beneficiary rule is ap-plicable.26
Disallowing Malpractice Suits Courts holding that an insurer may not maintain a malpractice suit against
defense counsel in an underlying ac-tion commonly rely on one or both of the following theories to support that result. First, courts have held that no attorney-client relationship exists be-tween defense counsel and the insurer. Second, the courts frequently cite a prohibition against assignment of legal malpractice claims to others.
No attorney-client relationship exists between defense counsel and insurer. Jurisdictions that recognize an at-torney-client relationship in the third-party insurance context only between the insured and the insured’s attorney generally refuse to apply the tripartite relationship theory and the third-party beneficiary theory.27
Courts refusing to recognize an at-torney-client relationship between the insurer and defense counsel typically note the potential for conflict of inter-est in, for example, cases in which an insured’s exposure exceeds the avail-able insurance coverage, in which the insurer provides a defense subject to a reservation of rights, or in which an insurer may not have an obligation to indemnify its insured because of a policy defense.28 As the Supreme Court of Minnesota explained in Pine Island Farmers, “[e)ven the most optimistic view of human nature requires us to realize that an attorney employed by an insurance company will slant his
LEGAL BASESfrom previous page
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LEGAL BASESfrom previous page
efforts, perhaps unconsciously, in the interests of his real client-the one who is paying his fee and from whom he hopes to receive future business the insurance company.29
Pubic policy prohibits assignment of legal malpractice claims Courts that do not recognize an at-torney-client relationship between the insurer and the insured’s counsel are frequently forced to address the related issue of whether attorney malpractice claims are assignable in order to per-mit the insurer’s assertion of the claim through equitable subrogation. Be-cause many jurisdictions prohibit as-signment of legal malpractice claims on public policy grounds, such as the risk of jeopardizing “the highly confiden-tial and fiduciary relationship existing between attorney and client,”30 these courts usually reject the insurer’s as-serted standing as equitable subrogee to assert a legal malpractice claim.31
Conclusion Central to the issue of whether an insurer may sue counsel retained to defend its insured is the court’s view of the significance and scope of the tripartite relationship. Determining the effects of the interplay of attorney, insured, and insurer in the third-party liability insurance context requires balancing the risk of conflict of inter-est against the potential social cost of insulating negligent attorneys from accountability because the insured “client,” who is often not ultimately responsible for the judgment entered against it, generally lacks a fiscal in-centive to challenge the attorney’s con-duct. As illustrated above, courts that have already defined the tripartite relationship to recognize counsel’s fidu-ciary duties to both the insured and the insurer appear to have little trouble allowing the insurer, as coclient, to pursue a claim against defense counsel. These courts have already determined that the overarching ethical and public policy concerns in the tripartite rela-tionship permit the insurer, as a mat-ter of law, to stand on virtually equal footing with the insured vis-a-vis the
attorney. The tripartite relationship theory and the third-party beneficiary theory are accordingly appropriate bases upon which insurers may assert direct rights to relief against defense counsel. Courts that construe the attorney-client relationship narrowly to exclude the insurer, having rejected the legal bases for a remedy, have been forced to find other bases as they weigh the sanctity of the attorney-client relation-ship against the prospect of foreclosing compensation for tortious conduct. The resulting theories, equitable subro-gation and the Restatement theory, provide limited methods of ensuring the accountability of the attorney after termination of representation while preventing the insurer’s interference during the representation. However their holdings are ulti-mately articulated, most courts agree that the tripartite relationship be-tween insured, insurer, and defense counsel provides a basis for a claim by an insurer against defense counsel. In-surers need to recognize, however, that this is not universally acknowledged and that they must take care in their pleading to state a claim that contains all of the elements required in the ju-risdiction in which they seek relief.
_________________________________* William Black, Jr. Is a partner in Philadelphia office of the Gibbons Law Firm. Sean P. Mahoney is an associate in the same firm. This article is reprinted with permission from The Brief (Winter 2006)©
Endnotes1. See generally Gen. Sec. Ins. Co. v. Jordan, Coyne & Savits LLP, 357 E Supp. 2d 951, 956 (E.D. Va. 2005); Nationwide Mut. Fire Ins. Co. v. Bourlon, 617 S.E.2d 40, 45-46 (N.C. 2005).2. See Gulf Ins. Co. v. Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone, 93 Cal. Rptr. 2d 534 (2000), rev. denied, No. S087090, 2000 Cal. LEXIS 4323 (Cal. May 17, 2000).3. See id. at 544. But cf. Grinnell Mut. Reins. Co. v. Franks, Gerkin & McKenna, No. 98-C-6876, 2000 U.S. Dist. LEXIS 12636, at *12-13 (N.D.111. Aug. 24, 2000) (recognizing tripartite relationship but holding that insurer did not plead direct duty of care supporting legal malpractice claim against insured’s counsel because insurer did not plead that it had retained the attorneys to defend the insured).4. 533 N.W2d 452 (Wis. 1995).5. Id. at 455-58.6. 649 N.W2d 444 (Minn. 2002).7. Id. at 450.8. Id. at 4519. Id.10. Id.11. Id. at 451-52.
12. See generally Grinnell Mut. Reins. Co. v. Franks, Gerkin & McKenna, No. 98-C-6876, 2000 U.S. Dist. LEXIS 12636 (N.D. 111. Aug. 24, 2000).13. See, e.g., Dixon v. Royal Cab, Inc., 1988 R.1. Super. LEXIS 53, at *8-9 (1988).14. See Grinned, 2000 U.S. Dist. LEXIS 12636, at *13-14.15. See, e.g., Dixon, 1988 R.I. Super. LEXIS 53, at *9.16. 2 E Supp. 2d 1013 (N.D.111.1998).17. Id. at 1019.18. No. 98-C-6876, 2000 U.S. Dist. 18.LEXIS 12636 (N.D. Ill. Aug. 24, 2000).19. Id. at * 13-1420. Id.21. See, e.g., Nat’l Union Ins., 2 E Supp. 2d 1013, at 1020.22. See id. at 1021.23. Id. at 1024; see also St. Paul Fire & Marine Ins. Co. v. Birch, Stewart, Kolasch & Birch, LLP, 379 E Supp. 2d 183 (D. Mass. 2005); see also Harleysville Worcester Ins. Co. v. Silverstein & Hurwitz, P.C., No. 02-7612, 2005 U.S. Dist. LEXIS 5721, at *14-15 (S.D.N.Y. Apr. 6, 2005).24. Atlanta Int’1 Ins. Co. v. Bell, 475 N.W.2d 294, 298 (Mich. 1991).25. See generally GEIC0 v. Forbes, No. 99-CV-881, 1999 U.S. Dist. LEXIS 8446 (E.D. Pa. Jun. 2, 1999); Gen. Sec. Ins. Co. v. Jordan, Coyne & Savits LLP, 357 F Supp. 2d 951, 958 (E.D. Va. 2005) (citing RE-STATEMENT (THIRD) OF THE LAW GOVERN-ING LAVVYERs § 51 (c) cmt. g); Spratley v. State Farm Mut. Auto. Ins. Co., 78 Pad 603, 607 (Utah 2003) (following Paradigm Ins. Co. v. Langerman Law Offices, PA., 24 Pad 593 (Ariz. 2001) ).26. Gen. Sec. Ins. Co., 357 F Supp. 2d at 958.27. See generally Essex Ins. Co. v. Tyler, 309 F Supp. 2d 1270 (D. Colo. 2004); Cont’1 Cas. Co. v. Pullman, Comley, Bradley & Reeves, 929 F .2d 103 (2d Cir. 1991) (applying Connecticut law); Am. Employers’ Ins. Co. v. Med. Protective Co., 419 N.W 2d 447 (1988) (rejecting equitable subrogation argument under Michigan law by excess insurer to assert legal malpractice claim because “to hold otherwise would . . . acknowledge a direct duty owed by the insured’s attorney to the excess insurer and would be tantamount to saying that insurance attorneys do not owe their duty of loyalty and zeal-ous representation to the insured client alone”).28. E.g., In re Ugrin, Alexander, Zadick & Higgins, P.C., 2 P.3d 806, 813 (Mont. 2000).29. Pine Island Farmers Co-op v. Erstad & Riemer, PA., 649 N.W 2d 444, 450-51 (Minn. 2002) (quoting U.S. Fid. & Guar. Co. v. Louis A. Roser Co., 585 E2d 932, 938 n.5 (8th Cir. 1978)).30. Essex Ins. Co., 309 F. Supp. 2d at 1273 (quoting Roberts v. Holland & Hart, 857 P2d 492, 496 (Colo. App. 1993) ).31. See, e.g., Am. Employers’ Ins. Co., 419 N.W 2d at 448-49 (rejecting equitable subrogation argu-ment because “[s]uch a holding would... encour-age excess insurers to sue defense attorneys for malpractice whenever they are disgruntled by having to pay within limits of policies to which they contracted and for which they received premiums. . . [wlere this to occur, we believe that defense attorneys would come to fear such at-tacks, and the attorney-client relationship would be put in jeopardy”); see also Swiss Reins. Am. Corp., Inc. v. Roetzel & Andress, No. 22523, 2005 Ohio App. LEXIS 4332 (Ohio App. Sept. 14, 2005) (“ This Court is persuaded that Ohio’s zealous guarding of the attorney-client relationship compels a holding that equitable subrogation is not available to [the primary insurer seeking to assert a legal malpractice claim]”).
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WILL ‘MEA CULPA’ WORK FOR HEALTH PLANS TOO?By Maureen Glabman*
A few years ago, Kaiser Permanente ex-ecutives approved a daring pilot program at six medical centers in three states. When patients had disappointing outcomes, doc-tors who took a communication course delivered heartfelt, empathetic apologies. If the situation warranted, representatives were dispatched later to follow up with compensation offers. “We were thinking we needed a year or two to understand the efficacy, but within six months, we knew it was a win-win,” says Douglas Bonacum, Kaiser’s vice president for safety management. An “I’m Sorry” policy spread rapidly to all 31 hospitals as well as some clinics. “Doctors sang its praises; patients loved it. It topped our expectations,” Bonacum adds. The HMO now has a culture of apol-ogy permeating all levels of the organiza-tion, he says. That was evident when the Los Angeles Times reported that Kaiser’s Northern California region president pub-licly apologized to patients who felt their complaints about dangerous delays in care with the company’s new kidney transplant program had fallen on deaf ears. To make amends, Kaiser offered to pay for trans-plants at outside hospitals.
Transparency is the issue Kaiser is engaged in what has become known nationally as the nascent “apology movement,” an effort by some doctors, hospitals, and payers to offer empathy, explanation, and - if necessary - restitution when an adverse incident occurs, or when patients are unhappy about denials or delays in care. It is sometimes called “full disclosure, early offer.” Recent published articles indicate that apologies salvage relationships and reduce defense costs. “Initial evidence now suggests that ad-mission of harm and apologies strengthen, rather than jeopardize, relationships and diminish punitive responses,” writes Aar-on Lazare, MD, Chancellor and Dean at the University of Massachusetts Medical School in the September 20, 2006 issue of the Journal of the American Medical Association. Further, academic research suggests that leaders overestimate the costs of apologies and underestimate the
benefits, reports Harvard lecturer Barbara Kellerman, PhD, in the April 1, 2006 issue of Harvard Business Review. The apology movement contrasts sharp-ly with “deny and defend” policies in many organizations that discourage plan execu-tives and others from even speaking with harmed patients for fear it may fuel law-suits. Apology proponents say that such measures perpetuate the perception that HMO leaders are arrogant and callous. Managed care defense lawyer Steven Ziegler, JD, recommends apologies to HMO clients under certain conditions. In one recent case, a man whose wife had suffered a stroke asked for special home treatments for her. When the treatments were denied by a regional HMO, the couple hired a lawyer and threatened to take the issue to the press. Plan executives believed they had com-plied with the terms of the patient’s policy. Nonetheless, the medical director and Ziegler traveled to the home of the patient, apologized, and made an accommodation within the contract. “If the medical di-rector had not done that, it would have escalated,” Ziegler says. “The apology went a long way toward resolving the case quickly. No one was involved in protracted litigation. The hus-band was so appreciative someone was willing to acknowledge and take responsi-bility. Most people want to know they are being treated fairly. The best way to do that is to explain things and accept responsibil-ity when things go wrong,” Ziegler says, Apologies tend to prevent cases from going to trial, where verdicts can be un-predictable. In his 11 years filing lawsuits against HMOs, Theodore Leopold, JD, says he hasn’t lost a single case. “They are wonderful cases in front of a jury because every juror has experience dealing with a managed care company and understands how difficult it can be.” Some lawyers representing large na-tional payers are opposed to apologies. “I would not suggest it unless there was solid, empirical evidence that an apology reduces the number of overall claims and the cost of handling the claims,” says Denver law-yer Theodore Laszlo, JD. The movement is still so new, and hard
data has come from hospitals and medical liability carriers alone. For example, the University of Michigan Health System has had an apology/full disclosure program since 2001. UMHS’s risk manager, Richard Boothman, has reported that the program saved $2.2 million in its first year. In testimony before the U.S. Senate Committee on Health, Education, Labor, and Pensions, Boothman stated that claims against the institution have dropped every year since the program has been in place despite a considerable increase in clinical activity over the same period. Average claim processing time dropped from 20 months to nine months. Total reserves for medical malpractice claims declined by more than two thirds, and average litiga-tion costs have been more than halved.
Reduction in Legal Costs “The University of Michigan and our institution have seen steep reductions in legal costs following adoption of dis-closure policies,” writes Albert Wu, MD, MPh, a Johns Hopkins University profes-sor of health and policy management, in the Agency for Healthcare Research and Quality’s February 2006 report titled “Perspectives on Safety.” Wu asserts that apologies also go along way to advancing the patient safety movement, since part of a prescribed apology is typically a promise that steps will be taken to prevent the er-ror from recurring.Some Initiatives Some of America’s most venerated in-stitutions have adopted apology policies. They include 14 teaching hospitals af-filiated with the Harvard Medical School, such as the Dana Farber Cancer Institute in Boston. Others with established poli-cies are at Catholic Healthcare West, San Francisco (42 hospitals), Allina Hospitals and Clinics, (11 hospitals and 66 clinics), and Children’s Hospitals and Clinics of Minnesota (2 hospitals). Providers are in the forefront, but carriers such as Copic (formerly Colo-rado Physicians Insurance Company, and Northwest Physicians Mutual also support apology programs. Apology programs got a huge boost from legislative protections enacted mostly in
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the last six years. Twenty-nine states and the District of Columbia now have “I’m Sorry” laws that shield contrition from lawsuits. The language typically reads: “Any statement or conduct expressing apol-ogy, responsibility, or sympathy made by a health care provider to a patient or patient’s relative relating to injury is in-admissible as evidence of admission of liability or against interest.” Lawyers say “health care provider” may apply to HMOs, depending on how individual states define terms. There remain a variety of opposing opinions on apologies, “It could encourage a plaintiff to reconsider a lawsuit or settle more quickly,” says Jeffrey Liggio, JD, a plaintiffs’ lawyer. “But if an insurer leaves someone with a permanent problem, what is an apology going to do? It doesn’t replace a breadwinner who can no longer work.” Another plaintiffs’ lawyer, Theodore Leopold, JD, says, “I would have deep con-cerns that an apology is a veiled attempt at appeasement while someone in the company is engaged in the same outra-geous conduct.” There is a middle ground, suggests Thomas Morrow, MD, immediate past president of the National Association of Managed Care Physicians and a mem-ber of Managed Care’s editorial advisory board. “What I see plan executives saying is, ‘I’m sorry you have to pay more for your care, but that’s what your employer bought,”’ he says. “It’s a form of empathy and it doesn’t implicate you. If you didn’t say anything, I’m not sure where that leaves you on the humanity scale.” Carole Houk, JD, a lawyer specializing in conflict resolution who helped draft Kaiser’s full disclosure program, says, “Any time there is a conflict, there is a need for an apology policy.” The focus of Kaiser’s program is on ombudsman/me-diators trained in dispute resolution to resolve patient issues equitably to avoid escalation to litigation. Houk claims that of potentially compensable events man-aged by an ombudsman, 90 percent to 98 percent will be resolved without legal action. “Participant organizations should see a reduction in malpractice claims in the first year,” according to Houk. Contrarily, a deny-and-defend policy makes providers and, by extension, HMOs vulnerable to litigation since patients per-ceive it as a cover-up, according to Sorry
Works, a coalition of doctors, lawyers, pa-tient advocates, and insurers that pushes the apology movement. The coalition’s mantra is that admissions of error have a powerful ability to diffuse anger, a lead-ing reason that patients file lawsuits. The group devised its own apology program, which became a pilot program in Illinois and Vermont.
Customer service Sorry Works “is nothing more than a good customer service program that saves your bacon,” says the group’s col-orful founder and spokesman, Douglas Wojcieszak. Apologies fall into two categories: ex-pressions of sympathy, as in, “I’m sorry you are hurt,” and expressions of account-ability and remorse, as in “I’m sorry I hurt you.” While the former can be given im-mediately, the latter should not trip lightly off the tongue until there is a full inves-tigation, experts warn. If it is discovered the institution is not at fault and patients still want to file suit, meritorious cases are defended vigorously. How an apology is delivered is tricky. An insincere apology may incite patients, according to “Apology in Medical Practice: An Emerging Clinical Skill” in AMA, September 20, 2006. “I apologize for whatever happened” doesn’t acknowledge the offense, writes Aaron Lazare, MD. Using the passive voice, “Mistakes were made,” is incorrect too. Worse are unacceptable apologies, as in “The alcohol made me do it,” or arrogant apologies, such as “These things happen to the best of people.”
“Mistakes Were Made” Who delivers the apology is equally important. “A corporate tailored apology could seem like a corporate Hallmark card,” says Michail Hack, JD, a plaintiffs’ lawyer. If the offense is institutional rather than individual, the top leader (the CEO, for example) is not necessarily the best person to extend the apology. Sometimes the institution is better served if someone further down the organizational ladder acknowledges the problem and expresses regret, according to Harvard lecturer Kell-erman.
Be Quick about it For apologies to be effective, they must be delivered swiftly after the incident. Ste-phen Ziegler, JD, a defense lawyer, recalls a case from a time when apologies were less common. A patient was denied a CAT scan and later found to have a brain tumor.
Two years later at a mediation session, plan executives told Ziegler they wanted to apologize, but by then it was too late. “The plaintiff was very angry that no one accepted responsibility. It’s very difficult to come in and apologize at that point,” he says. “The defendants - the health plan and the doctors - paid more than they would have if they had acknowledged responsibil-ity earlier.” The apology movement started to gain steam because of the perfect storm: a burgeoning quality movement, a medi-cal liability crisis, and a spate of books and articles suggesting that apologies are cheap, they are ethical, and they save money. The origin of the apology move-ment can be traced to 1987, when Steve Kraman, MD, then chief of staff of the Veterans Affairs Hospital in Lexington, Ky., introduced the seminal disclosure program. He offered apologies on behalf of the entire medical center, explained the er-ror sensitively, offered to make restitution involving subsequent corrective medical or surgical treatments, and then handed off the veteran and/or his family to a VA lawyer (along with the patient’s lawyer) to calculate loss and settlement. After the program was instituted, there was a swell in the number of settlements, but a steep drop in total payments, according to reports published in the Annals of Internal Medicine and elsewhere. “When the Lexington VA published their data in the 1990s, it was written off in the health care world because it was a tightly controlled government institution,” says author Michael Woods, MD, of “Heal-ing Words” (Joint Commission Resources, 2004). “People said, ‘You will never repro-duce those results in the for-profit sector,’ Copic and the University of Michigan showed you can.”
Copic calls its program the 3R’s:(R) recognize that an unanticipated
event occurred,(R) respond soon after the event,
and(R) resolve with risk management
early intervention. The program began in 2000 for claims valued at less than $30,000. Not a single incident handled with the 3R concept pro-ceeded to full litigation in five years. The company is studying how to implement a program for all cases. A typical incident recently involved a 40-year-old woman who underwent a vagi-nal hysterectomy and suffered a ureter in-jury, requiring a stent. She was reimbursed
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$7,000 for unpaid medical expenses and loss of time. Institutions that promote full dis-closure allege that they make apolo-gies because it is the ethical and the humane thing to do. However, hard fi-nancial data demonstrating reductions in defense costs constitute a compelling incentive. “I have no doubt we are better off financially, but we are driven by doing the right thing for our patients,” says Bruce Merl, MD, Kaiser’s medical-legal director.
Erisa Means Never Having to Say You’re Sorry? Claims against HMOs are going up or down, depending on the lawyer you speak with. Denver health insurance defense lawyer Theodore Laszlo, JD, says that claims have risen over the course of his 25 years in practice, indi-cating that apology programs are not working. Steven Ziegler, JD, another health insurance defense lawyer, says a combination of apology programs, open access, new appeals processes, and fresh approaches to medical necessity have reduced his litigation load by half. “In the last five years, health plans have taken a friendlier approach to member
complaints,” he says. Jeffrey Liggio, JD, a plaintiffs’ law-yer, says that the conduct of HMOs has worsened over the years, increasing the number of cases. What warring lawyers agree on is that lawsuits by patients against HMOs are not so common as malpractice suits against doctors and hospitals, since MCOs derive substantial immunity from prosecution for negligence from ERISA - the Employee Retirement In-come Security Act of 1974, which is administered by the U.S. Department of Labor. Of 162 million employees cov-ered under employer-sponsored health plans, 128 million are in ERISA-covered private health plans. Employees covered under ERISA may sue HMOs on the federal level but recover only the amount of benefits wrongly denied. So if a CAT scan is denied, patients can sue only for the amount of the ser-vice, not for pain and suffering, bad faith, lost wages, permanent injury, or medical complications arising from the denial - items that can increase the amount of a judgment. “Not many attorneys take ERISA cases because the process is long and you might get attorney’s fees and that’s all,” says Mi-chail Hack, JD, a plaintiffs’ lawyer. There remains a significant pool of
litigants not covered by ERISA who keep HMO lawyers hopping. The pool includes any employee covered under a government plan -federal, state, mu-nicipal, Medicare and Medicaid, the self-employed and others. Many attempts have been made in the last decade to pass legislation that would allow employees covered under ERISA plans to sue carriers for mal-practice, forcing them to bear responsi-bility for how decisions affect outcomes and reversing ERISA preemptions. These effort have not succeeded.
For further reading:“Wall of Silence, Rosemary Gibson
and Janardan Prasad Singh (Life-line Press, 2003)
On Apology, Aaron Lazare, MD (Ox-ford University Press, 2004)
Healing Words, Michael Woods, MD (Joint Commission Resources, 2004)
Medical Errors and Medical Narcis-sism, John Banja, PhD, (Jones and Bartlett Publishers Inc., 2005)
_________________________________*Maureen Glabman is the 2000 Columbia Uni-versity Reuters Fellow in Medical Journalism. This edited version of the article is reprinted with permission Managed Care Magazine, Janu-ary 2007.
THE MODERN LAWYER’S TESTBy Jeff Tolman*
The new millennium is in full swing, and all the legal visionaries say our pro-fession is destined to mutate. The old days of client relations and traditional forms of billing will soon disappear. In their place will be MDPs (Multi-Dis-ciplinary Practice Groups), officeless, paperless lawyers who meet clients over the Internet; and transitory client who will negotiate the best deal each time they need legal services. The days of lawyers like me will go the way of the dinosaur and passenger pigeon. To see how prepared you are for these changes, the Modern Lawyer’s Test fol-lows. Will you end up like me, a pau-per surrounded by long-term, valued clients? Or will you be one of the new
generation of cyberprofessionals, who, according to the prophets, will excel in our new professional world?1. Why Did You Become a Lawyer?□ I always dreamed of dividing my work-day into six-minute increments.□ A longtime goal has been to have a student loan debt bigger than the aver-age annual NBA salary.□ To help people.□ I thought Atticus Finch was cool.□ I thought Atticus Finch was rich.2. A Tenth of an Hour Is:□ A unit for measuring a lawyer’s bill-ings.□ A unit for measuring a lawyer’s life.□ An outdated unit of measurement. New instruments can divide time ac-
curately into thousandths of an hour.3. Billable Time Differs from Real Time in the Following Ways:□ None.□ There are in excess of 30 billable hours in a day, only 24 clock hours.□ One is precise, the other only an estimate.□ There is no leap year in billable time.4. You Know You are Spending Too Much Time at the Office When:□ You tell your child to be home at three-tenths of an hour after five.□ You are agitated by the inaccuracy of the stove clock that measures the roast you are cooking only in minutes.
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□ Your conversation during your family dinner sounds like you are dictating.□ You greet your child with, “Good eve-ning, Scott, it’s always nice to see you. Please follow me back to the conference room.”5. The proper balance between time at your office and time with your fam-ily is:□ 2,000 hours to bill at the office; 1,000 hours to chart as a parent.□ 2,000 hours to bill at the office; do what you can at home.□ Bill what you have to so you won’t get fired; coach at last two of your kid’s teams each year.□ If you get a standing ovation when you enter the house, you aren’t home enough.6. Lawyers Should Be Leaders in the Community and Active in the Bar As-sociation:□ When?□ How?□ Why?□ Yeah, right!!7. Why Would a Lawyer Want to be a Judge?□ Judges work 40-hour weeks and get six weeks a year off.□ Judges don’t have billing quotas.□ Judges make $120,000 a year and recognize their kids.□ Judges get the last word in and law-yers say “Thank you, Your Honor” even when they think the jurist is an idiot.□ You’ve always want to send someone to prison.8. When Multi-Disciplinary Practice is Allowed, You Want to be Partners with the Following People:□ Mortician. Probates are good work.□ Doctor. Dad always said, “Only be partners with people who make more money than you.”□ Financial planner. You’d be rich if you didn’t have to pay a commission on every stock trade.□ Police officer. They know all the people in legal trouble.9. You Know You Have a Good Client When:□ They are the third generation of a family you have represented.□ They don’t bring in Internet print-outs from the online law sites to their appointment.□ They don’t threaten to go to another law firm unless you lower your rates from the last matter you represented them on.
□ They say thank you after the ap-pointment, and ask where the book-keeper is so they can pay their bill.10. The Best Reason to Have Staff is:□ Someone to blame mistakes on.□ Someone to check the voicemail while you are playing golf.□ Someone to visit with between ap-pointments.□ With voicemail and computers, there is none.11. The Main Advantage of Voicemail is:□ Clients can leave detailed messag-es.□ You can screen your calls and talk only to the clients you want.□ You can tell people: “I am temporar-ily away from the office or with a client” when you aren’t and no one will know.□ You have more control of your time without client interruptions.12. The Best Reward a Lawyer Can Get is:□ Having the bill paid.□ Receiving a thank you from a cli-ent.□ Becoming a partner so you will get some of the money the associates are billing.□ Twenty-two percent a year return on your 401(k).13. You Have a Webpage Because:□ You can’t snag local clients.□ The old lawyer down the street will never get the third generation of most families. The kids are too young and too cybersmart.□ You succumbed to the constant sales pitches of invading webmasters.□ Who needs to see clients face-to-face? You don’t have to feel their pain if you don’t see them.□ You want to appear more computer literate than you are.14. Clients Who Expect Their Calls to
be Returned:□ Are behind the times. Don’t they have e-mail?□ Are unreasonable. Doctors don’t re-turn their calls; why should lawyers?□ Are usually calling to complain about something.□ Are obviously obsessing too much about their problems.15. Client Service is:□ Old news. No one does it except the lawyer down the street with all the clients.□ The major difference between law-yers who will be successful and not.□ For lawyers who don’t have enough work.□ Overemphasized. Most clients’ prob-lems will work themselves out over time. If you answered the questions in a way that emphasized the importance of technology, you are ready for the great evolution of our profession. If you an-swered the questions emphasizing cli-ent relationships, you have a satisfying practice. If you answered the questions in a way that emphasized spending time with your family, find a work situation that will allow that. If you answered the questions emphasizing the negatives of our profession, good luck. The new millennium is in full swing, and all the legal visionaries say our pro-fession is destined to mutate. But don’t tell my clients. They still think that having someone they know, who cares about them and returns their calls, and who assists them through their legal troubles is the wave of the future.
_________________________________* Jeff Tolman practices law in Poulsbo, Wash-ington. He has served on the Washington State Bar Association Board of Governors, and is a frequent speaker and writing on law-related topics. This article is reprinted with permis-
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helpless to stop it. And it’s my fault it’s there. I feel worthless and ashamed. I’ve failed every one who cares about me. Oh, how I wish I could go back and start over!” I don’t care how stoic the client ap-pears. When he shows up at a lawyer’s office, something like that is usually going on inside. It must feel pretty aw-ful. So what is the client looking for? What does he need and want from you? He needs someone capable and strong to join him in the fight, someone who knows the monster, someone who has fought it before and is not afraid of it, someone who will protect him. And he needs someone who will resist the temp-tation to judge him, who won’t align himself with his enemies. In short, someone he can trust. That is the foundation of a good at-torney/client relationship. This kind of trust can only develop when the lawyer pays attention, really hears the client, tries to understand the client’s pain, and does so without even a hint of judgment. Being on the client’s side doesn’t mean you approve of what he or she did. It means you’re going to help your client deal with it, to begin the process of putting his life back together, and to help him forgive himself. It also means resisting the temptation to join the self-righteous legions surrounding him, whose disapproval haunts him day and night. The client already has more than enough people judging him – what he needs is an unwavering ally. It doesn’t mean you tell him what he wants to hear. It means telling him
PROPER CAREfrom page 1
the truth. Trust allows him to hear it, because he knows you are on his side. Many lawyers don’t understand or are uncomfortable with our role as counselor to our clients, describing it as time-wasting “hand-holding.” But it is a vital part of what your clients need, and if you’re not wiling to give it to them, who will? If they can’t count on you being on their side, who else in the system can they count on? Recognizing the importance of this role is the key to satisfied clients. I’ve learned a lot about dealing with clients and keeping them happy, starting with my first job with legendary icono-clast Alva Long. Alva did everything his own way. Calling Alva a lawyer was like calling Ozzy Osbourne a suburban dad. He practiced out of a small storefront office in downtown Auburn. On the huge picture window facing the street, he painted “Alva the Lawyer” in letters six feet high. He was partial to garish suits, wild ties, and fluorescent socks. His battered briefcase was covered with peace symbols and “Free the Chicago Seven” and “Legalize Pot” stickers. He spoke in disjointed parables, arguing points of law so esoteric no one in the courtroom had any idea what he was talking about. During an opponent’s direct examination of a key witness, he’d often take out a deck of X-rated cards and play a noisy game of solitaire. He drove prosecutors nuts, motivating at least one to actually file a “Motion to Make Mr. Long Leave Me Alone.” De-spite his flaming eccentricities, every Saturday morning clients lined up on
his sidewalk for their turn to implore him to take their case. Alva certainly was never a candidate for Super Lawyer status, yet he had more clients than he could hope to handle. Why? Well, Alva demonstrated the first lesson in the business of practicing law. Let’s call it Lesson Number One: to be successful in the practice of law, you may not need a good reputation, but you do need a reputation. In other words, while you don’t need to be eccentric, you do need to stand out from the pack, to take some risks, to do some extraordi-nary things. It means working harder than the lawyer down the street, trying cases you don’t think you can win, tak-ing on a case pro bono because it’s the right thing to do, appealing a case for nothing because you know the judge was wrong. Over time, your efforts will impress those around you. In law, your developing reputation is by far the most effective means of attracting clients. My second job was with another re-nowned character of the bar, Irving Paul. Irv was a Harvard-educated law-yer from old Boston money who could have made millions working for his uncle’s Wall Street firm. Instead, he packed his bags and headed west. Irv had a heart as big as an arena and, in t he days preceding public defenders, founded what was essentially a poverty law center in Pioneer Square. Our firm “specialized” in representing clients no one else wanted, those folks Irv proudly called “The Great Unwashed.” They
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were the legions of poor and down-and-out, with nowhere else to turn. They called him “Lawyer Paul” and would appear at our doorstep unannounced – summons in hand, wallet empty, eyes filled with hope. As far as I recall, no one was ever turned away. Irv asked only one question of pro-spective associates: “Will you work for peanuts and do so until you drop?” Those of us desperate or idealistic enough to say “yes” were rewarded with massive caseloads, little support, missed pay-checks, and lost causes. We represented many wonderful, decent folks with ter-rible facts and predictable results. What surprised me was how appreciative my clients were despite losing, simply be-cause I cared enough to try my hardest for them. My experience working for Irv taught me Lesson Number Two: When it comes to making clients happy, it isn’t about winning or losing. It’s about how you treat the clients in the process. I can’t count the number of times folks were effusively grateful after I lost their case. They appreciated the fact that I was on their side, that I cared, and that I treated them with dignity and respect when no one else would. When I left to begin private prac-tice, I shared space with an established lawyer known for his take-no-prisoners attitude. Through the thick brick wall separating our offices, I winced as he loudly berated clients, demanding they follow his advice and not ask stupid questions. He ended up fighting a se-ries of bar complaints and eventually gave up on the practice of law. I was not surprised. We lawyers operate in a world that is mysterious and frighten-ing to our clients. We speak to judges and each other in a language they don’t understand. We assume that if we know something is in the client’s best inter-ests, they will, too. We would be wrong. Explaining com-plicated legal principles and tactical decisions is a pain, requiring patience, empathy, good listening skills, and a lot of time. But it must be done. It presents Lesson Number Three: It doesn’t mat-ter that the lawyer knows what’s best for the client - what matters is that the client knows and agrees. Otherwise, clients can’t move on; they are tortured with uncertainty; wondering whether
they made the right decision. And they will blame the lawyer for the anxiety they feel. We owe it to our clients to remove the confusion as well as we can at every stage of the proceedings, by making sure they understand and approve of the decision before we ask them to make it. As I learned how to practice law, every once in a while a client would get mad at me. The complaints usually seemed trivial; I didn’t return calls promptly or failed to follow up, or was late to court, or sent another lawyer in my place, or contradicted myself on some minor point. I’d often respond defensively, without much genuine concern. That just made `em madder. Eventually I came to realize what I was doing: creat-ing molehills, then challenging clients to make them into mountains. I learned there is no such thing as a “trivial” client complaint. This led me to Lesson Number Four: Always return calls promptly, encour-age questions from clients, respond immediately to complaints with sincere concern, keep them informed, explain your advice, be on time to court, and never promise something you’re not positive you can deliver. Attention to these details goes a long way toward calming nervous clients. I occasionally receive calls from other lawyers’ clients who want to fire them and hire me. The complaints are rarely about the lawyer’s competence or the results attained. It’s almost always over frustration with the lawyer’s inability or unwillingness to explain the lawyer’s actions or advice. I hear them out, then almost always suggest that they go back to their lawyer, discuss the problem, and give her or him a chance to resolve it. I rarely hear from them again. Which brings me to Lesson Number Five: If you have an unhappy client and are lucky enough to hear from her before some other lawyer or the Bar Association does, for gosh sakes take it seriously. Sit down, shut up, listen attentively, explain without a bunch of excuses, and apologize when appropri-ate. Figure out what the client needs to feel okay about it and move on. In such cases, the warning “act in haste, repent at leisure” is dead on. The worst thing a lawyer can do in response to a client’s complaint is to blow it off, even if the client is wrong. Yes, client complaints often seem frivolous, unfair, or mis-guided. They are sometimes exagger-
ated or distort the facts. In reality, they are often manifestations of the client’s unresolved fear, guilt, or shame. But they are real to the client and must be treated as such by the lawyer. In doing so, you are providing the client with what all clients need - the means to let go of all that emotion and move on. Occasionally, we all run into clients who want their money back. This some-times seems patently unreasonable. You feel you earned it twice over. The client was very demanding, even ir-rational. You achieved a terrific result. Maybe you had a bad month and need the money. It feels like a complicated question. Should you return all of the client’s money? Should you return any of it? Isn’t it unfair to you? Didn’t the client sign the fee agreement freely and voluntarily? However you answer these questions, there is only one appropriate response. Let’s call it Lesson Number Six: Give it back. And if necessary to make the client happy, give it all back. I don’t care why the client wants it back I don’t care how much it is, or how hard you worked on the case, or what a great job you did. I don’t care if the client is crazy, a complete jerk, or a con artist. I know it hurts, but give it back anyway. Suffice to say; I’ve known a lot of lawyers who didn’t, and every one eventually really wished they had. It is simply not worth the hassle. By the time the complaint reaches the Bar Associa-tion, the client will likely be complain-ing about everything you did and a lot you didn’t. It will expand into a general indictment of your competence and eth-ics. It will require massive amounts of time, money, and effort to defend. It will not be worth it. So, just give it back and move on, sadder but wiser.
Over the many years of your career, you will likely repeat many of the same mistakes I’ve made. None of us is per-fect. All we can ask of ourselves is to do our best and learn from our experiences. I hope you can benefit from mine. Yes, this can be a tough job, but even after 30 years, I still think it’s the best job in the world. Not despite the clients, but because of them._________________________________* Stephen Hayne practices law in Bellevue, Washington.
This article is reprinted with permission from Washington State Bar Association newsletter the Washington State Bar News.
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