Saturday, August 21, 2010

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.