Simple Questions in Complex Situations

How many lawyers consistently use a checklist of questions to ask clients at the beginning of a personal legal matter? Many customize the checklists published by provincial Law Societies for a particular practice area, client service style or matter management process. The focus is often on quality assurance, risk mitigation and scope of work. Is there a way to include the human element too?

I attended a lecture by Atul Gawande in New York a few weeks ago. Gawande is a surgeon who teaches at Harvard Medical School, writes for The New Yorker and leads two health care organizations. He is also the author of bestselling books about public health systems, including The Checklist Manifesto and, recently, Being Mortal: Medicine and What Matters in the End.

At the lecture, Gawande discussed a checklist of questions that he and other health care professionals can ask patients facing serious, life-threatening illness. The purpose is to ensure that patients’ points of view are taken into account by the medical experts who will treat them.

Gawande said that earlier in his career, he was so focused on developing expertise and competence that he wouldn’t have thought to ask these questions (although subconsciously, he knew they mattered):

1. Do you understand the situation you’re in?
2. Do you understand what it means?
3. What are your goals, not just for your medical treatment, but for your life?
4. What are your fears if the situation gets worse?
5. What are you willing to sacrifice or trade-off in order to reach your goals?

When a patient is facing mortality, these questions seem obvious. And yet they aren’t always asked.

I wondered if lawyers helping clients in tough predicaments could modify these questions to ensure that client objectives are understood. Legal problems obviously rank lower than medical issues on the scale of tough issues a person will face. Although, some legal problems are terrifyingly stressful with life altering implications. Contentious wills, estates and family matters were the ones that immediately came to my mind while listening to the lecture. Others, such as civil litigation and Charter issues would probably benefit too.

The research for Being Mortal shows that patient outcomes are actually improved when these questions become a regular part of health care provision. Patients feel they have been fairly treated. Physicians are given an opportunity to be straightforward and to express empathy.

Many of the experienced lawyers I work with already include similar questions as part of their intake process. They know the answers matter – clients are more satisfied and the ‘right’ work is done, not just the best work. I suspect that the lawyers themselves find a greater sense of meaning in the work done. Perhaps this is a function of life experience combined with practice experience. Perhaps it is a function of focusing on communication as a means of earning trust. Perhaps it is simply a function of remembering to “be human” in an increasingly complex business and legal environment.