Confessions of an Empathic Attorney

I took part in a mediation process last month on behalf of a client who was being sued by her former attorney for costs incurred after losing an underlying medical malpractice case -- my client was shocked because her former lawyer didn't communicate for several years & suddenly filed a claim alleging thousands of dollars in costs. Indeed, the former attorney hadn't made any attempts to mediate or diffuse the escalating conflict, since I was retained several weeks before Trial with the hopes of achieving a miraculous resolution.

By way of context, the client is a disabled retired women who is on fixed income & still suffers from the underlying botched medical procedure. Currently, she has been healing from a recent cancer diagnosis, which the former attorney knew about.

My client presumed since her former attorney had lost the underlying medical malpractice case & from her perspective mishandled the case that the attorney was acting in bad faith for waiting so long to pursue recovering his costs -- I entered the process explaining to my client the benefit of doubt that the other attorney did his best possible and for us to enter a mediation process optimistically.

As I dug thru the file, it became obvious that her former attorney had poor bedside manner & lack of emotional awareness. For instance, he dismissed the clients many attempts to be involved in her own case, even sitting her in audience during trial. Prior to Trial, he seldom met with the client and had minimal contact with her throughout the lengthy process.

I initiated contact with her former attorney presenting the idea that miscommunication & strained relations between them had resulted in this escalated mess, with the possibility of hosting an informal mediation between us to discuss how we could all co-create a fair settlement. When presented with possibility that there was room for improvement, the attorney's dissonance kicked in & he project blame onto the client, even though he blatantly acknowledging communication had broken down with the client.

Bear in mind this attorney told me in 46 years of practice, he never had to sue a client -- to which I asked him, "why then this time?" He said "it's not about the money it's the principle." When I then gently probed, "what's the principle," he didn't answer nor did he answer the question of what he has learned from this process.

Despite it "not being about the money," the attorney made minimal monetary concessions during our mediation session. He didn't heed my advice that empathic listening & candid conversation between both sides will bring clarity and allow his former client to feel heard. Likewise, the former attorney failed to rationalize his emotions to see that a practical problem of limited ability to repay was also precluding the client from agreeing to any amounts that exceeded what she could afford.

Even worse, her former attorney brought a seasoned appellate attorney friend as "backup" to our mediation session despite it being a confidential process with no risk of reprisal -- both colleagues were behaving as though they were at trial or deposition, not making eye contact, refusing to answer candid questions in the spirit of communication & clarification, hurling inflammatory statements of blame, and even making technical remarks to excuse their lack of qualitative skillset.

I felt a sense of sadness & frustration.

Sadness that this attorney wasn't seeing his role in the conflict or acknowledging all the constructive feedback I gave him in preparation for our time together -- he was continuing to stand on principle despite missing key lessons on client management & bedside manner:

When your client has a language barrier, you take extra care to make sure they understand each step of the process, not simply mailing them technical correspondences they don't understand. When your client asks whether you should take a settlement offer, your responses shouldn't be predicated on how much your office will make or mislead the client with fear so they are misguided by your interests.

Leaving your client on the sidelines without any involvement or communication will undermine their satisfaction with the process.

Frustration that this colleague was hurting, not helping -- he was refusing to speak candidly out of unreasonable fear despite it being a confidential mediation process. Had he offered an empathic ear so the client felt heard, the client would've addressed the payment earlier. What gets us into trouble won't get us out & this colleague's stubbornness, lack of self awareness & empathy and insistence to pursue monetary damages against someone who is still suffering was frustrating to observe.

In sum, the client still didn't feel heard, her questions about the underlying case & his strategy remained unanswered, there was no realistic conversation about what she could afford to pay, nor was there any semblance of heartfelt communication between two human beings that had been on the same side of a case together.

Our industry is at a crossroads, as the old paradigm has been uprooted and if we grasp at the vestiges of the old system instead of embracing change & growth, we will be resisting based on outmoded beliefs & tactics.

The answer is staring us in the face, we adopt a revived role of the Law: to empower, not victimize. To serve and help as a guide & counselor, bringing both quantitative & qualitative skills to our cases -- approaching our Craft with creativity, compassion, love & humility.

Here's a shout-out to all the Legal Warriors with Heart out there!

EPILOGUE: After some patient persistence, her former attorney began to appreciate the wisdom of making some empathic overtures & reasonable concessions, such that through some heartfelt communication both sides were able to co-create a fair settlement on the eve of Trial :-)