Tuesday, August 14, 2007

Lawyers and Their Image

The image of lawyers is a complex and peculiar issue. I always say that the ultimate test of what the real image of the lawyer is to see if parents have yet gotten to the point where they weep and hide the pictures of their children when it is announced that the acceptance to law school has arrived or the call to the bar ceremony is to begin. While I know many children who have had their parents denounce them for their choice spouse, sexual orientation, tattoo or career, I have yet to run into anyone who says "my Dad hasn't spoken to me since I went to law school and my Mom has to call me in secret and she always cries."

The standard comments that people make about lawyers though are actually quite understandable. Except for buying a house most people have contact with lawyers at the absolute worse times of their lives: their marriages are falling apart, they have been badly injured and need to sue, they are being sued, they are going broke, their house renovation has gone poorly and so forth. What makes it even worse is that generally the lawyer has to deliver bad news to the ears of the client even when the case is good: "yes Mrs. Smith, you will get half his income, half his house and the Spode China but judge will not have his member cut off for sleeping with the secretary -- the judge doesn't care if he slept with the secretary."

In a sense our image as a profession reminds of an old lady I knew in Newfoundland who refused to go to the (then) new Health Sciences Complex in St. John's. She said, "people die there." Of course they do -- it is a hospital full of sick people.

On top of that we charge for doing all of this.

Even for people who never have to deal with the sharp end of law in all their life these images are reinforced in various ways. In the case of the litigators (who constitute actually a small part of the profession but really establish the image in the minds of most people) the negative impressions that people have are amplified in the retelling. The unhappy spouse who cannot get their lawyer to promise them vengance rather than a share of the property talks to his/her friends about how heartless or unsympathetic their lawyer is when the reality is it just the lawyer doing the job -- telling the client what the law is not what we might wish it to be. The situation is even worse when the story is being told about the lawyer who cross-examined them.

A case in point is my first trial in the Superior Court where I was allowed loose to cross-examine witnesses. We were defending a doctor who had performed back surgery. The surgery had apparently gone well but the patient subsequently developed a complication called cauda equina syndrome (you do not ever want to hear your doctor say, "I am sorry but you have cauda equina syndrome"). The patient described the feeling he went through on a near constant basis as the sensation of having a 'hot poker rammed up' his rectum. Needless to say the patient was not happy and said that either the surgery had been done poorly or he had not be warned of all material risks.

The expert evidence was unequivocal that no flaw in technique or decision could be identified. My leader demolished the Plaintiff's expert in cross-examination and I was left with the job of dealing with consent. The clever idea I had was to ask the Mr. X. if he had been afraid of having the surgery because of the anesthetic and I successfully established (1) that he was terrified of the surgery, (2) that he knew that there was a chance that surgery could kill him or leave him brain damaged, (3) that he thought both those options were worse than the hot poker and (4) that he had the surgery anyway. Given this the judge accepted that even if Mr. X had been told of the distant chance of cauda equina he would have had the surgery anyway so the consent case failed because it would have made no difference if this risk had been explained or not (the Plaintiff failed to prove causation to use the legal lingo).

To the lawyer this is a great story about a clever cross-examination with interesting facts and a happy ending but looked at from the point of view of the two clients this is nothing funny. From Mr. X's point of view he has had a terrible outcome -- he likely still suffers to this day -- and he has to feel that he was tricked by a clever punk kid into sinking his case. Everything that was done to him in that courtroom was legally and logically correct but it defies the intuition that the hot poker is not right. From Dr. Y's point of view he was dragged through a process which took years to establish what he knew from day one -- he had done a good surgery which had had a rare but serious complication that was caused by circumstances not incompetence. Again, what he saw was a lot of time get burned and ultimately no clear vindication because he had to sit through the accusations of incompetence with no personal rebuttal. From Mr. X's point of view we were high paid tricksters who pulled the wool over a judge's eye's; from Dr. Y's point of view we were dalliers who failed to adequately crush this complaining patient with all due dispatch.

These thoughts apply even to lawyers who do happy things -- like help people buy their homes. This is a transaction that occurs every day likely dozens of times a day across Canada. Subject to the effects of title insurance, each of these transactions involves a small piece of legal work which is designed to make sure all aspects of the transaction are properly documented and the documents properly registered. In some jurisdictions the lawyer also has to do a fair bit of work to check title to make sure person selling the house actually owns the house. This little peice of legal work typically adds anywhere from $300-$600 to the cost of buying the home. The problem for the image of lawyers is that if the job is done perfectly then the client sees absolutely nothing happen: that's that whole idea -- the lawyer does the work so that nothing will ever go wrong. Unfortunately for the image of the lawyer this looks to the client like an extra transaction cost that serves no purpose other than to feed the great gods of the legal profession.

In the end lawyers are in the business of managing conflict. Either we manage affairs so as to avoid it, which often involves reminding people of downsides to happy things that they do not want to hear about, or we manage the disputes when they do occur, which puts us in the midst of people's personal hells. Which ever is the case we generally tell people things they do not want to hear and often have to frustrate their dreams, ambitions or hopes. But in doing so we also solve their problems or better still avoid greater problems. We help people understand things that are difficult to grasp, particularly in the heat of moments of emotion, and we steer them clear of the shoals. If you want to see what lawyers do go down someday to the local chambers court and watch a few hours of the unrepresented parties in matrimonial disputes try to deal with their issues in front of the judge without legal assistance. For me at least, the reward is not in the type of image that some professions have but in the challenge that comes from figuring out the problem and devising a solution that works effectively (oh yes, and there is that small matter of the fee, my invoice will follow).

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