In my last blog post, I kicked off a series on the role of a medical malpractice defense lawyer and the relationship that you, as a physician-defendant, might develop with your medical malpractice defense attorney. Today, I want to continue that series by laying out three roles that your lawyer might play for you.
Before we dive into those three roles, I need to disclose that when I was in the midst of my own litigation, I learned something very interesting and useful about myself. In that situation where the chips were down for me, my default response was to try to do what I do at work when the chips are down for my patient. Namely, I tried to step up and lead.
The truth is, however, that I was in unfamiliar surroundings confronted with unfamiliar circumstances. Turns out that I was not the person best equipped to lead. I needed to follow.
What I learned about myself as a result was that I wasn't a very good follower under stress; I suffered from a “follower-ship deficit”! I had to make an active effort to follow my med mal defense lawyers' lead. And once I did, I benefited enormously. So, today I want to look at three ways in which your med mal defense lawyer can lead.
Let me be clear that I'm not suggesting you abdicate full participation. Complete engagement will be to your benefit. Rather, I think it may benefit you to invite your counsel to provide certain kinds of leadership. It may help alleviate some of your stress and anxiety. And, in the long run, it may provide you with a better, high-integrity outcome than you otherwise might have had.
The first way in which your medical malpractice defense lawyer might lead is as your guide. Medical malpractice litigation is unfamiliar territory for most physicians. The presence of the unknown can be very stressful. While your defense attorney can’t predict or control the future any better than we can, at least for them, the territory is NOT unknown.
The guide who comes to my mind in this instance is Virgil in Dante's Inferno. For those of you who don't know much about that classic work of literature, in it, the poet Virgil guides our hero, Dante. He leads Dante into the seven circles of hell, each one hotter and more miserable than the last, gives him a little tour, and most importantly, leads him right back out again.
In hindsight, what Virgil does for Dante is not so far removed from what my med mal defense lawyer did for me. He led me through the situation at each stage, no matter how heated and miserable it got, described what we were seeing and what was happening, and importantly, got me back out again!
Like a great high school athletic coach, many med mal defense attorneys embody the sort of leadership that blends some teaching, some cheerleading, some support, and some helpful correction. When might they need to play that role? For starters, in any situation in which your testimony may be required.
Words and word choice really matter in legal processes. Allow your attorney to work long and hard training you for situations like deposition or testimony at trial. Let them direct you as to what to review in advance and, equally important, what NOT to review in advance. And then, let them work with you on crafting the language that allows you to tell your story truthfully, with high integrity, but in the way least inflammatory to the legal process.
The plaintiff's attorney may want nothing more than for things to become increasingly inflamed. One of your aims ought to be not to throw fuel on their fire.
Your attorney can coach you for that.
Teammate and Captain
All along, my medical malpractice defense lawyer was my teammate and captain. Only at trial did I clearly see things in those terms, though..
Imagine for a moment that you are a freshman athlete on a high school or college team where there are more advanced players, players with greater experience. One teammate in particular is a senior and has been selected as the team's captain.
You may know some of the rules of the game, you may even know what your role is. But the captain will have the whole team and the entire situation in mind. In fact, they may have previously confronted the particular adversaries that the team faces today. They may have prior knowledge of the other team’s tendencies -- their strengths, their weaknesses, the ways their coaches operate. That insight will help bring your team to the best possible outcome if you work together to use it to your advantage.
Great big caveat: Your team captain cannot win the game alone. Without the complete participation and full effort of every teammate, including YOU, there will be no winning. So, go in prepared to bring them everything you've got. They need everything you know about the case, everything you know about the medicine that applies to your case. Bring them your fears, your anxieties, and your concerns, your strengths as well as your weaknesses, all in the interest of finding the best possible outcome for your case, whatever that may be.
Please reach out to me in the comments below or by e-mail here to let me know your thoughts. I'd love to hear about your experiences or your fears regarding your relationship with an attorney. Then subscribe to the blog to join me in a couple of weeks for the next installment in this series.