Wednesday, December 28, 2005

Inflated expectations

It occurs to me that much of the public's love-hate relationship with the legal profession stems from the difference between perception and reality.

Non-lawyers (and even some lawyers, in my experience) have exaggerated opinions of what the law can do -- and diminished regard for lawyers who try and rein in these runaway expectations.

Every personal injury lawyer has a story of a settlement ruined, or at least jeopardized, because the client had a last-minute conversation with a barstool barrister or new acquaintance at the block party (ethanol consumption is almost always a feature of these conversations) who assures the client that the lawyer is selling the client out, or at least short. Somebody else, who had the very same injury (and did you review the medical records in both cases, Doctor?) got twice as much in their case. (Did you see the settlement papers? How do you know? And what were the facts of that case, Mr. Barfly? This case involves an open intersection accident with conflicts among the witnesses. Was your case a rear-ender?)

Of course the client never asks those kinds of questions. Every statement made by the lawyer is viewed with skepticism, but the slurred pronouncements of the drunk guy at the end of the bar who will say anything that will make you buy his next drink are taken as if they were carved in stone.

My oldest daughter (she's 21) has had a series of foot operations over the past year, not all of them successful (which is one reason why additional surgeries have become necessary). In particular, in one of the first operations, a nerve was severed that should not have been. It has caused my daughter pain and discomfort since. A subsequent operation, by a different doctor, in which the nerve was 'tucked into' the muscle, has failed to resolve the problem. Now the second doctor has sent her to a third doctor, who proposes still other surgery.

But was the first doctor guilty of malpractice? My daughter has no doubt: The first doctor was a butcher and must be called to account. I've suggested to her that this unhappy outcome may have been among those possible and that, despite the unhappy outcome, the doctor may have fully complied with the standard of care. I've also told her that malpractice cases are fabulously expensive to handle (in part because they are the least likely to settle without trial). Finally, I've pointed out that, although she continues to have pain, especially if she's too long on her feet, she may not have been injured badly enough to make it economically worthwhile to pursue a case for malpractice, given the costs and uncertainties of such a claim, even if a lawyer specializing in malpractice cases agrees with her unkind assessment of her first doctor.

Well, you can imagine what my daughter thinks of this: I'm obviously a bad lawyer.

My wife is beginning to agree. The mortgage company continues to call my house, at least twice a day, because my December payment has yet to be made. (The $100,000 check continues to reside in my drawer.) On Christmas Day, Sunday, the bank did not call at all -- but on the Christmas holiday, Monday, the Feast of St. Stephen, the bank (or, rather, the bank's computer) called four times. This is excessive and offensive and aggravating in the extreme. But is it actionable?

My wife, a non-lawyer, has no doubt: We should sue. I haven't researched the Fair Debt Collections Practices Act on this issue, I told my wife, but my guess would be that this very large bank has. The bank probably knows where the line is, and stays very carefully on the legal side of it.

Well, my wife thinks I have a bad attitude on this, and she's told me so in no uncertain terms.

I know lawyers are not the only professionals to be second-guessed: Pick up the Sports page in any newspaper. And my late mother doubted the credentials of any doctor who did not prescribe something on every visit. But I think lawyers may be particularly open to second guessing of this sort. Most people realize, when push comes to shove, that they can't hit a curve ball or perform surgery. But everyone can negotiate or argue -- and most of them think they can negotiate or argue better than their lawyer.

In the meantime, speaking of the Feast of St. Stephen, I recall how the good man died. I would like to arrange an historical reenactment, with the bank's computer playing the role of the saint.

1 comment:

cmhl said...

I totally agree with you. At least it is something to consider. Just because the outcome was not what was desired, it doesn't mean that something was done incorrectly. There isn't always someone at fault, and in our profession, we are trained to think someone was at fault. It is a problem.