I came across a New York Times article that stated what, to most, would appear obvious – that litigation is stressful! While the author, a physician, oriented her thoughts towards physicians sued in medical malpractice matters, the premise holds true for any defendant dragged unwillingly into litigation. While we as litigators are comfortable ‘operating’ in an adverse environment, litigation to a physician can be as foreign as an operating room is to an attorney. The key to alleviating this angst, is communication. Any individual defendant, be it physician or layperson, would naturally be upset by being named in a lawsuit. The visceral reaction is to question “what did I do wrong?” In many instances the answer is “absolutely nothing.” Unfortunately, this provides little solace to the individual who now has to expand time and resources defending the action. Superimposed on these obligations is the emotional toll that litigation can create.
For this reason it is of utmost importance that legal counsel be cognizant of this ‘emotional factor’ and be prepared to deal with it. In many instances, individuals who maintain professional/general liability insurance are assigned counsel by their carrier; they have little to no input into this decision and likely have never met or spoken with counsel until the action is commenced. It should suffice to say that this dynamic only serves to heightens anxiety.
Accordingly, and as is the practice of our firm, it is imperative that assigned counsel reach out to their new clients as early after assignment as possible. Further, calling a client is not enough. As counsel, we must make sure that our clients are comfortable with their representation. This occurs by counsel making themselves available 24/7 (as a practice I provide both cell and home telephone numbers to my clients) and physically meeting with their clients to sit and discuss the case. It is also imperative to be honest with your clients. While the first contact may be an inappropriate time to do so, if there are recognized problems with the defense they must be discussed early on. First addressing problems with the defense well into the litigation, that were obvious early on, only increases a defendant’s anxiety and may led to a defendant questioning their counsel’s future assessments and recommendations.
At the end of day, what all defendants want (especially when they have no say in selecting the assigned insurance panel counsel) are lawyers and law firms that are zealous advocates, are accessible and are honest in their assessments and recommendations. Putting a client at ease about their lawyers’ competence and focus on their concerns goes a long way to alleviate the stress and anxiety discussed by the author of the above New York Time article.