Fastest way to malpractice case? Don't listen

Galina Davidoff, BridgeTower Media Newswires

Surveys of public opinions about lawyers consistently show pretty depressing results. However, surveys and polls cannot possibly capture the depth and variations of people’s attitudes toward lawyers. The general survey questions gloss over all the important nuances and are not helpful to any individual attorney.

Surveys cannot explain, for example, why the people who report low opinions of lawyers also want their children to join the profession. Nor do these surveys shed any light on why most people who take them claim to have neutral attitudes toward lawyers but also agree that an attorney would not hesitate to lie or to destroy an innocent person’s reputation if doing so would serve his or her client.

A much deeper understanding of people’s complex feelings about lawyers can be gleaned through an analysis of deliberations in legal malpractice cases.

Below are four lessons I have learned from conducting jury research in cases in which jurors are asked to focus on and pick apart a lawyer’s behavior:

1. A lawyer’s conduct is always judged through the prism of his service to his clients.

The single most important quality that jurors mention in assessments of their lawyers is dedication to the client.

As a lawyer, being dedicated means being thorough in investigation and analysis on the one hand and, on the other, being willing to push the boundaries — of the law, of the truth and of human decency — on behalf of the client.

Jurors are perfectly willing to accept rudeness, flamboyance and even deception, if these behaviors are employed on behalf of the client. Once these same behaviors appear to hurt the client, they are seen as deplorable.

2. It can go either way, but lawyers mostly make terrible witnesses.

The problem usually involves too much strategic thinking. Instead of straight answers, jurors hear pauses and clarifications that sound defensive and evasive. A perfect example is Bill Clinton’s famous answer, “It depends on what the meaning of the word ‘is’ is.”

3. Lawyers truly cannot direct their own defense.

The worst trial strategies ever suggested have come from successful attorneys who thought they should participate in their own defense.

For example: “There was nothing wrong with what my team did, and in any event it was not my fault because I was playing golf in California at the time.”

4. Communication problems are at the heart of nearly every legal malpractice case, and jurors tend to side with the clients when they hear about them.

These problems come in two forms:

• The client is unhappy because she feels that her lawyer never really listened to her concerns and/or failed to tell her story as she thought it must be told.

• The client feels that the lawyer kept her in the dark about what was going on, her best options, and the bills that were about to come.


Common complaints

It is clear that attorneys can actually do quite a lot to improve communication with their clients.

Lawyers are supposed to be superb communicators, and in many respects they are. But handling a client is the trickiest part of the job, and usually no training is provided on how to do that and what to avoid.

As a result, when we ask our surrogate jurors about their experiences with their own lawyers, we hear two major complaints: One, I could not get my lawyer’s attention; and two, I did not understand what was going on with my case.

These complaints come from people who did not sue their own lawyers, but they correspond perfectly to the complaints brought in legal malpractice lawsuits.

For jurors and clients, the lawyer’s role is not just to be a fighter in a legal arena but also to be a facilitator in telling his client’s story to both the lawyer and the other side. If the lawyer fails in this role and if, on top of that, the lawyer fails to communicate what is going on with the case, jurors have no mercy.


Let clients tell their stories

It turns out that enabling clients to tell their own stories is really important. Studies show that people who get to tell their own stories during disputes are more willing to accept defeat than those who did not have that same opportunity. Even people who have won a dispute but did not get to tell their stories often remain unsatisfied.

In my experience, clients who feel that their attorneys did a satisfactory job telling their stories are more willing to accept both positive and negative results than those who do not.

An attorney once complained to me, “I got [my three clients] a million-dollar settlement, and now they will not return my calls. Yet they would likely have lost the case if it had gone to trial.
Why are they unhappy?”

I would guess that the clients were unhappy because their attorney agreed with the other side to forgo the opening statements during the mediation and, as a result, the clients never had the satisfaction of hearing their story told to the offending party. They were left feeling that, if only their story had been told, it would have had a larger impact and possibly would have led to a larger settlement.


Above all else, listen

In legal malpractice cases, we never hear former clients say that their lawyer was a good listener. Instead, we hear about instances of unreturned phone calls and cryptic, unsatisfying communications.

Listening to a client is the kind of billable time that would never be disputed, but it appears that the attorneys who get sued much prefer to do the work without their clients’ meddling interference.

Sometimes, in witness preparation sessions, I spend much of the time waiting for an attorney to stop lecturing the witness. Everything that the attorney says is correct, yet it feels like a waste of time because the witness is barely retaining any of it.

As a psychologist, I know that a lecture is much less effective than a dialogue in which information is delivered in small bites in response to the listener’s unique concerns. I am always surprised by how much new information comes out once I get the witness to talk, even though these sessions are typically held late in the litigation process.

The new information rarely includes key facts but often includes nuanced feelings and details about relationships that are important to the way we want to tell the story at trial.

Clients rarely, if ever, manage to tell their lawyer everything at the initial meetings, so as an attorney it is important to continue to listen right until the very end and to work on your story with your client.

Your job in the beginning is mostly analytical: You need to break down the narrative into verifiable facts and elements that you can work with and address in your legal motions and strategies.

But toward the end, it is important to work with your client on synthesizing the story again and bringing back the emotional elements, which both make the story more powerful and also result in a more content client who is less likely to blame you for the outcome.


Boston-based Galina Davidoff is a litigation consultant. She can be contacted at