Yesterday, I had a bone marrow biopsy, as part of my ongoing medical care dealing with bone marrow cancer. That biopsy is not my favorite thing, but let me tell you, as often at Hopkins, you are reminded just what a difference a skilled and sensitive person doing the procedure can make.
The thing that has never happened before to me in all my dealings with the medical system, and that really set me thinking, was that, during the consent process, after briefly describing each risk, the nurse explicitly told me what she would be doing to minimize that risk.
It turned the formal consent process, often treated as a meaningless imposition on all involved, into an opportunity for making the two of us into a team. The nurse communicated her concern for me, I could have pointed to any risks I was worried about, or had reason to believe might have been greater than usual, and the document had a purpose.
In contrast, I could not but help recall how, decades ago, I learned of an institutional public defender in which the lawyers considered it their task, in obtaining the consent of their clients to a guilty plea to, and directly quoting here, to “break the client.” In other words, as the justification went, they were so certain that the client would be convicted if he went to trial, so certain of the terrible sentencing consequences, and so sure that the reluctance to plead came from irrelevant considerations like a refusal to admit guilt to the family, that they felt a moral obligation to “break the client.” When I was telling a doctor friend about this, he said it reminded him of Guantanamo.
Now, I trust that most advocates do not see their relationship with their clients that way, but it would be good to think about ways that courts, lawyers, nonlawyer advocates and others could see the benefits of full transparency, including the communication and discussion or risks and how to avoid them, as something that would strengthen the trust of the client or litigant in the system, rather than the opposite.
For example, judges, in explaining the possible consequences of failing to obey a court order, could do this in a way that suggested it was about helping the person being ordered, rather than just frightening them, maybe compliance would be greater. Maybe we need to be even more sensitive to how a discussion between lawyer and client, in both the civil and criminal areas, should include more of a discussion of risks and benefits of different choices, and of what the lawyer and client could do together to minimize those risks.
In the plea example above, would it not be better for the lawyer to think of how to communicate a deep concern for the client’s interests, rather than how to terrorize him. (And, surely, just the use of that language can only color the interaction.)
Please share your thoughts.