Recently, I went through the pre-operative procedure for very minor surgery (cataract removal) at Johns Hopkins.  Two fascinating things happened.

First,, the person told me to expect on the day of the procedure that the nurse would ask me just before surgery to describe what surgery I was there for, and on which eye.  I realized this is just what access advocates urge judges to do, to ask litigants to describe in their own words what has been ordered.  There is then much less chance of error. (The goal is slightly different in the two contexts; in the medical system they are trying to avoid the one with the doctor getting the procedure wrong; in the courtroom, we want to make sure than the litigant really does understand what they are expected to do.  But the issue in both cases is working to remove errors in communication.)

Secondly, and this raises some interesting possibilities, I was told that if the nurse were to fail to ask the question that way — i.e. that the nurse were to ask “are you having cataract surgery in you left eye”, I should in any event explicitly reply with the actual detailed information stated by me.

I loved the acknowledgement that the protocol might not be perfectly followed by the staff, and that, if it was not, it was in my interest to follow it correctly myself — thus also hopefully educating the nurse.  This makes me both a partner in my care, and a partner in ensuring that the best practices are followed.

I am not sure I am comfortable telling litigants to tell judges that when they are asked “do you understand what you are supposed to do,” or “did you understand me,” that the litigants should say “well judge, it is better if you ask me to repeat what you ordered with its details so that you can see if I got it right.”  But maybe it is going to become OK if litigants are suggested that there is the value in saying something like “Judge, can I tell you what I think I am meant to do, so that you can tell me if I have it right?”  It certainly suggests good faith, as well as reducing the risk of error.  And, actually, it is roughly what I do when doctors give me instructions.

Moreover, at a minimum, the litigant might later have a better defense if they failed to understand the order right, the judge failed to catch it and then the order were violated.  On the other hard it would be harder in the future for a litigant to claim lack of understanding as a defense for non-compliance.

There’s a lot to learn from comparing the two systems,