A Word About Lawyer Civility and Points of View
A few weeks ago I had a workers comp case come up for hearing. It involved a painter that had fallen when a makeshift scaffolding gave way. My client broke one leg and shattered the other. He needed reconstructive surgery and spent about 7 days in the hospital. The employer was unemployed and we had to file against the workers comp insurance of the subcontractor who had hired my client’s employer. In workers comp talk this is an upstream or statutory employer. Pretty standard stuff. But the case was denied. Because the subcontractor contended that he hadn’t hired the guy. The law is crystal clear on this, but it was still denied.
It took us about 7 months to get to a hearing. During this time, my client did not have any doctor’s bills paid and was not getting a paycheck. Well, he first lost his apartment and lived with one relative after another, he then lost his car. After about 4–5 months, his relatives (primarily their spouses) got tired of him sleeping on the couch and one by one their doors started closing. Eventually, he was living in a homeless shelter. All because the insurance company denied his claim.
The hearing was coming up and I was talking to the defense attorney. (We’ll call him ‘Dan the Defense Attorney’). My guy had not been to the doctor lately and I wanted to get a determination from the doctor of any further medical treatment that was necessary. Dan wanted to wrap the case up. The conversation went something like this:
Dan: “Let’s finish this thing.”
Me: “He hasn’t been to the doctor for 4 months and he really needs further medical treatment. Let’s get him to the doctor and see what follow up treatment he needs.”
Dan: “If he hasn’t gone to the doctor in 4 months, he must be finished.”
Me: “Because the insurance company denied this claim, he’s lost his home, he’s lost his car, his doctor’s bills haven’t been paid and he hasn’t been able to get the treatment he needs.”
Dan: “He went to the first three doctor’s visits. If he could get to those three, why couldn’t he get to any of the others?? This doesn’t work for me. You got anything else?”
Me: ….silence… [okay. angry silence for about 2 minutes]. “Dan, you’re a nice guy. I’d probably buy you a beer if I saw you out and about. But this is a road that you really don’t want to go down. We don’t need to have this conversation. Trust me, this is not a conversation you want to have with me. We have to different points of view and we’ve got a hearing come up in two days, we’ll just let the Commissioner decide. That’s what they do.”
I have two thoughts about this conversation.
1. Lawyer civility – There’s a story making the rounds of the internet lately about two lawyers getting into a tussle (see Notes from the Legal Underground or Ernie the Attorney for more). But you know what, regardless of how reprehensible the opposing attorneys behavior is it takes two to tango. When I was a younger lawyer, I thought that lawyering thing would be much more fun if it wasn’t for the lying and obfuscation of defense counsel. But that’s what defense attorneys do. They don’t have facts on their side, so they have to rely on hiding the facts. Don’t get mad. Okay, get mad but getting mad isn’t a strategy. Don’t fall into the trap, draft better interrogatories, use requests for admission, use the rules of procedure to your advantage. In this case, my guy had waited 7 months and I had a hearing in 2 days. I could safely ignore the attorney and rely on the Commissioner. We have a choice on whether we raise to take their bait.
2. Points of View – ‘Dan’ was a young attorney practicing for about 2–3 years. He was either a good attorney or on his way to getting there. Throughout the matter he had always been accommodating about schedules, timing and rescheduling depositions. While waiting for a deponent, we had chatted about 10–15 minutes discussing general things and he was a very likeable guy. What could have possessed such a nice person to utter a sentence like “So he lost his house and car and is living in a homeless shelter because of my client’s actions. How does that keep him from going to the doctor?” What kind of person says that?
I think it all comes down to framing, or a point of view. Being a young attorney, he is in the ‘zealous advocate of his client’ stage. It didn’t occur to him that his client was just plain ole fashioned wrong. It didn’t occur to him that his client being wrong created serious consequences for my guy. It didn’t occur to him that an arbitrary decision that was clearly against the statute had for over half a year wreaked havoc on my client’s life and also caused him considerable more pain and permanent injury because he couldn’t get the doctoring he needed.
His job was to represent the insurance company and facts just bounced off of him. His framing or storyline if you will was ‘protect the insurance company’. It didn’t even occur to him that his client was wrong. The reason I bring this up is that if it happened with ‘Dan’, what storylines are our potential jurors coming in to the courtroom with?
The more social scientists learn about the decision making process, the more they learn that framing and storylines are more important than the facts. Once the frames have been set, people will ignore facts that don’t fit the story they have set. As jurors become more and more hostile to awarding fair verdicts, we need to be very careful of the hidden storylines of our cases.
