April 2015 Bar Bulletin
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April 2015 Bar Bulletin

Counseling Our Clients: Lessons from the Medical Field

By Joseph Shaub


In his wonderful new book, Being Mortal, physician and best-selling author, Atul Gawande, discusses the impotence doctors experience when faced with the unfixable challenge of patients' mortality. Its 261 pages contain a beautifully written, and very affecting, portrait of our current "medicalization" of a personal and decidedly non-medical (and universal) transition.

Yet, what is perhaps most striking about his account may be the similarity between attorneys and physicians in the way we see our professional roles. Certain tasks are easy. Others are beyond our ken (well, for most of us, I'm afraid).

I recall back in the 1970s my law school compatriots frequently commented that we were being trained to become "high-speed legal tools." Indeed, that is an apt description, confirmed by studies of lawyers' personalities, which consistently rate competence as the highest professional goal. This value has become so ingrained in our professional psyches that it is rather common to scoff at other, more interpersonal skills or values that are frequently dismissed as "touchy-feely."

Again, we are not alone. Note what Gawande says about today's doctor who is faced with the unsolvable puzzle of the patient who is surely dying from disease or advanced age:

You become a doctor for what you imagine to be the satisfaction of the work, and that turns out to be the satisfaction of competence.... It comes partly from being helpful to others. But it also comes from being technically skilled and able to solve difficult, intricate problems. Your competence gives you a secure sense of identity. For a clinician, therefore, nothing is more threatening to who you think you are than a patient with a problem you cannot solve.

There's no escaping the tragedy of life, which is that we are all aging from the day we are born. One may even come to understand and accept this fact. My dead and dying patients don't haunt my dreams anymore. But that's not the same as saying one knows how to cope with what cannot be mended. I am in a profession that has succeeded because of its ability to fix. If your problem is fixable, we know just what to do. But if it's not? ... This experiment of making mortality a medical experience is just decades old. It is young. And the evidence is it is failing.

Like the doctor, flailing at an opponent that is dimly understood and more powerful than all the tools and techniques that are the gift of professional training, the attorney is left to struggle with the inadequacy of her prodigal skills. Exceptionally well-tried cases are lost; the sophisticated legal solution doesn't extinguish a conflict (which may still blow the deal); clients seem driven by irrationality in an arena requiring firm rationality; the creative, elegant solution is dismissed by the client, seemingly without reason. All of our training, experience and competence seem for naught.

As Gawande observes, in the realm of the human experience, competence may feel like an often inadequate tool. Despite our best and most earnest efforts, our client may still express indecision or confusion as to goal and method. What to do? Gawande responds by citing a piece on medical ethics written by Ezekiel and Linda Emanuel (yes, he of the Rahm, Ari and Ezekiel power brotherhood).

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