Alesia S. Sulock, Marshall Dennehey Warner Coleman & Goggin

Alesia S. Sulock is an associate in the Professional Liability Department in the Philadelphia office of Marshall Dennehey Warner Coleman & Goggin. She has significant experience in legal malpractice matters, including those arising from underlying commercial litigation, criminal matters, professional liability matters, medical malpractice matters, personal injury matters, transactional matters and others. She also routinely represents attorneys in defense of Dragonetti and abuse of process claims, as well as in disciplinary matters.  She may be reached at assulock@mdwcg.com.

Practicing law in these times brings unique challenges and increased risks for attorneys, many of whom must adapt to working from home and all of whom must find new ways to provide exceptional client service.  These ten tips can help attorneys avoid malpractice concerns and provide the best representation possible, even during a pandemic.

1. Calendar. Using a diary system is a recommendation we routinely make in presentations covering attorney best practices.  Missed deadlines are a primary allegation in many malpractice claims, and for good reason.  Courts do not hesitate to dismiss claims or disregard arguments which are not timely brought.  Now more than ever, it is imperative to keep track of deadlines.  If you are used to relying on the paper calendar that hangs in your office, consider recreating one at home.  If you rely on your assistant to keep track of your schedule, work out a way that can continue outside of the office.  Setting frequent reminders on a phone or computer may assist with avoiding missed deadlines.
2. Plan Ahead and Leave Extra Time. CDC guidelines, state recommendations, and local mandates are constantly changing in these unprecedented times. One simply cannot rely on the ability to operate in the way you are accustomed.  It is important to plan ahead for the possibility that the office may close, you may be tied up with homeschooling children, or you may have to quarantine with your beloved (but perhaps distracting) family for two weeks.  It’s best to endeavor to have work in a position where things will not fall to pieces if you have to step away for a day or otherwise adapt.  Similarly, to the extent possible, do not leave time-sensitive matters until the last minute.  Plan as if you may not be able to work all night to finish that brief the day before it is due, because that may very well be the case.  Likewise, technical difficulties or delays in mail delivery may cause filing to take longer than you expect.
3. Practice Civility. Keep in mind that there are bound to be times when you or your opponent truly do need extra time or other accommodations.  Be civil and even kind to your colleagues.  Grant extensions when reasonably requested and when they will not prejudice your client, not only because it is the right thing to do, but also because you may need the accommodation next time.
4. Remain in Contact. Constant communication with clients is another “must-do” in normal times, and it is even more important now.  If your client is away from the computer and less responsive to email now, pick up the phone and then document the  conversation in writing.  Courts may be closed or operating on extended deadlines, but your client will be wondering what is happening with his or her case.  Keep clients informed, even if the update is simply that there is no update but you are working the case to the best of your ability.
5. Protect Attorney-Client Privilege. Communications with your client are only privileged if they are between you and your client.  If you are working from home, find a quiet and private place where you can have confidential conversations, outside of the earshot of family members or roommates. It would be wise to instruct your clients to do the same.
6. Put It in Writing. This is good advice at all times, but even more important now.  Clients may be distracted when you call them, with small children running around or health concerns weighing on their minds.  Follow up on conversations in writing to ensure complete understanding on both sides, and to avoid confusion down the road.
7. Refuse to Dabble. With courts closed and deadlines extended, some attorneys may be light on work.  This is not an invitation to practice in an area where you lack the necessary expertise.  Resist the urge to take on matters you are not equipped to handle, without doing the necessary background work to learn how to provide competent representation in that area.
8. Act Professionally. Clients, courts and your opponents expect you to act and dress like a lawyer, even from home.  Maintain a level of professional decorum, particularly on video calls, and certainly in court appearances.  Dressing too casually may not be malpractice itself, but it is to your client’s benefit to put your best face forward, even from the living room.
9. Get Creative. Find new ways of working.  If you cannot sit down with a client, consider scheduling a zoom meeting or screen sharing while on the phone.  Become familiar with ways of sending and reviewing documents electronically.  Take care to provide clients with the same level of representation you have always provided, albeit from afar.
10. Maintain Your Own Well-Being. Recent trends have suggested a lawyer’s duty to provide competent representation includes maintaining the lawyer’s own mental and physical health in order to work most effectively on behalf of his or her clients.  In a time where many worry about financial strain, social isolation, and physical health, it is critical that lawyers reflect upon their own mental and physical health, address concerns early, and seek help when needed.

Robert G. Chadwick, Jr.
Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC

Robert Chadwick is a Managing Member of the law firm of Seltzer, Chadwick, Soefje & Ladik, PLLC. He has more than 36 years of experience representing management, fiduciaries and professionals in the areas of labor and employment law, ERISA investigations and litigation, and professional liability. He is Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization.

In 2016, “post-truth” was selected by Oxford Dictionary as the international word of the year. The Dictionary defines the term as “relating to or denoting circumstances in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief.”

The concept of post-truth may not be new, but its current form is unprecedented. A study by the Rand Corporation identified four interrelated trends: “an increasing disagreement about facts and analytical interpretations of facts and data; a blurring of the line between opinion and fact; an increase in the relative volume, and resulting influence, of opinion and personal experience over fact; and lower trust in formerly respected sources of factual information.” Truth Decay: An Initial Exploration of the Diminishing Role of Facts and Analysis in Public American Life, Jennifer Kavanagh and Michael D. Rich, Rand Research Reports (2018). The study identified four drivers of these trends: “cognitive bias, changes in the information system (including the rise of social media and the 24-hour news cycle), competing demands on the educational system that limit its ability to keep pace with changes in the information system, and political, sociodemographic, and economic polarization.” Id. As to another potential driver, Ari-Elmeri Hyvonen posited: “When lies become prevalent enough, the media and democratic audience easily become disoriented, lose the basic coordinates that usually support critical scrutiny.” Defining Post-truth: Structures, Agents & Styles, Ari-Elmeri Hyvonen, E-Intl. Relations (Oct. 22, 2018).

In 2020, the COVID-19 pandemic provided a compelling example of the post-truth phenomenon at work. Objective facts regarding the pandemic, such as infection rate, hospitalization rate and death date, were available in public health statistics. The efficacy of prevention measures such as masks, sanitation, and social distancing, were reinforced in widely available reports by medical experts.

Nevertheless, in an October 2020 poll from the Associated Press-NORC Center for Public Affairs Research as to the reliability of COVID-19 information, only 36% of Americans said they had a “great deal” of trust in health officials at the Centers for Disease Control, and only 53% said they had a “great deal” of trust in their own “doctor or health care provider.” As to social mobility decisions, a Vanderbilt study showed partisanship was a stronger determinant than public health statistics. See Partisan Pandemic: How Partisanship and Public Health Concerns Affect Individuals’ Social Mobility During COVID-19, American Association for the Advancement of Science, Science Advances (Dec. 12, 2020). As to COVID-19-related suits, research by IMS/The Focal Point, a Texas legal consulting firm, found Republican jurors were almost entirely dismissive of the suits and viewed COVID-19 as “no more dangerous than the flu.” See A Jury of Partisan Peers: Are Texan Jurors Bringing Politics Into the Deliberation Room?, Clint Townson, Marion Stampley Jr. and Britta Stanton, Texas Lawyer (Dec. 22, 2020).

The COVID-19 experience begs the question – If Americans are willing to trust their own beliefs over objective facts and expert analysis as to the deadliest pandemic in 100 years, what does this portend for objective facts and expert analysis in jury trials of professional liability claims? To answer this question, we must turn not to law, but psychology.

Facts v. Beliefs

It is all-to-common to hear these days: “My belief is not a belief; it is a fact.” The truth is facts and beliefs are two different things.

A fact is defined as “a reality as distinguished from supposition or opinion.” 35 C.J.S., Fact, at 490 (1960). “A fact can be tested or checked: Lincoln was born in 1809; that cereal contains 21 grams of sugar; the speed of light is 186,000 miles per second (in a vacuum).” Facts, Truths, Beliefs, Opinions, and “Alternative Facts”, Clifford N. Lazarus, Phd, Psychology Today, (Mar. 25, 2017).

A belief, on the other hand, is a “state of mind that regards the existence of something as likely or relatively certain.” Black’s Law Dictionary, 175 (9^th Ed. 2009). A belief may be based upon objective facts or expert analysis but is just as likely to be based upon experience, religion, culture, politics, social groups or media, and news commentary.

That a state of mind regards the existence of something as certain, however, does not make it so. Indeed, a belief can be at odds with objective facts as demonstrated by those who believe the earth is flat, a mere 6,500 years old, and the center of the universe even though we “know our planet is spherical, 4.5 billion years old, and orbits a rather typical star which is but one of many billions in a galaxy which is itself but one of many billions in an expanding universe of unimaginable size.” See Clifford Lazarus, supra.

Facts v. Cognitive Bias

Psychological research shows that, once a belief is formed, the human brain can be protective of the belief. This protection is in the form of confirmation bias:

“Confirmation bias occurs from the direct influence of desire on beliefs. When people would like a certain idea or concept to be true, they end up believing it to be true. They are motivated by wishful thinking. This error leads the individual to stop gathering information when the evidence gathered so far confirms the views or prejudices one would like to be true. Once we have formed a view, we embrace information that confirms that view while ignoring, or rejecting, information that casts doubt on it.”

See What is Confirmation Bias?, Shahram Heshmat, Ph.D., Psychology Today (Apr. 23, 2015).

The dynamics which can result from confirmation bias include (1) belief perseverance – “the tendency to maintain held beliefs even when the evidence supporting such beliefs is fully invalidated”, Belief Perseverance, Corey L. Guenther, Abigail Smith, Oxford Bibliographies (Feb. 26, 2020); (2) the backfire effect –  “… individuals who receive unwelcome information … come to support their original opinion even more strongly [emphasis in original]”, When Corrections Fail: The persistence of political misperceptions, Brendan Nyhan and Jason Reifler, Political Behavior (Mar. 30, 2010); (3) attitude polarization – “the result of exposing contending factions … to an identical body of relevant empirical evidence may be not a narrowing of disagreement but rather an increase in polarization”, Biased assimilation and attitude polarization: The effects of prior theories on subsequently considered evidence, Lord, C. G., Ross, L., & Lepper, M. R., Journal of Personality and Social Psychology (1979); and (4) – the irrational primacy effect – “the tendency to give greater weight to information that comes earlier…”, The Strange Psychology of COVID-19 and Investor Behavior, Daniel Crosby, Kiplinger (Aug. 11, 2020).

Bias is Often At Odds With Self-Perception

Researchers agree that confirmation bias is largely unintentional and often contrary to self-perception. As Harvard researchers have explained:

“Most of us believe that we are ethical and unbiased. We imagine we’re good decision makers, able to objectively …reach a fair and rational conclusion that’s in our, and our organization’s, best interests. But more than two decades of research confirms that, in reality, most of us fall woefully short of our inflated self-perception.”

See How (Un)ethical Are You?, Mahzarin Banaji, Max H. Bazerman, and Dolly Chugh, Harvard Business Review 81, No. 12, 56 (Dec. 2003). As recognized in Justice Donald’s opinion in U.S. v. Robinson, 872 F.3d 760, 785 (6^th Cir. 2017):

“Perhaps the most disturbing aspect of implicit bias is that it operates outside of a person’s conscious intent. Such biases often conflict with one’s consciously-held, egalitarian values, and indeed are more predictive of our conduct than are those explicitly-held values.”

What General Jury Questions Do Not Reveal

Predictably, therefore, questions which allow a potential juror to respond based on self-perception do little to reveal underlying beliefs. As recently observed by Dr. Bill Kanasky:

“Some of the worst voir dire questions ever written (but are frequently used by trial attorneys and judges) are: ‘Can you be fair in this trial?’, ‘Can you follow the judge’s instructions?’, and ‘Can you keep an open mind, and wait until the end of the trial to make judgments?’ These questions elicit information that is useless in determining true bias and impartiality, as the vast majority of jurors quickly, and obediently respond with a simple ‘yes.’”

See Juror Confirmation Bias: Powerful, Perilous, Preventable, Bill Kanasky, Trial Advocate Quarterly (Spring 2014).

Mock jury studies likewise ask questions which are largely unhelpful. Examples are: “Which is more important in making a decision – facts or beliefs?” and “In the event of a conflict, would you follow the law or your conscience?” The mock juror may consciously believe he or she values facts and laws and respond accordingly. Still, when confronted with facts in a real trial contrary to the juror’s beliefs, the juror may react differently.

The Questions Which Should Be Asked

Before trial, professional liability litigants and their legal counsel should always be asking not how they see the evidence, but rather how a jury might see the evidence. In the post-truth era, the importance and difficulty of this exercise is amplified. It is no longer sufficient merely to consider the perception of the average lay person; consideration should also be given to the perception of the lay person who may have conceived or adopted pertinent beliefs based upon unreliable or disproven facts.

As to a professional liability case, several questions should be asked by the defense. First, are there any emotionally, culturally, or politically charged issues in the case? In the post truth era, views as to certain issues can be indelible. Examples of inquiries related to this question are: (1) Has the case or similar cases received attention in the media or on social media sites? and (2) Is there any ancillary issue which threatens to overtake the primary issue in the case?

Example: I recently defended a claim that my client had terminated an employee because of age in violation of the ADEA. Although the client had a legitimate non-discriminatory reason for termination, that reason was a divisive one – the position was outsourced overseas. Asking how the case would fare with “America First” believers ultimately led to the decision to settle.

Second, is there any expert testimony to be offered in the case which may trigger juror fatigue or backlash? Complexity has always been a harder sell than simplicity in jury trials. In the post-truth era, some areas of expertise have been marginalized, dismissed, or even vilified. Medicine, economics, safety, and the law are amongst these areas of expertise. How or if expert testimony should be offered on an issue should be an early question in a professional liability case.

Third, what is the cultural, economic and ideological makeup of the community? In the post-truth era, political ideology can be one of the most reliable predictors of juror decisions.

Example: In a recent jury study encompassing Austin, Dallas, Fort Worth, Houston and San Antonio, the analysis “indicated that political affiliation consistently predicted verdict leaning in” lawsuits “directly or implicitly involving racial themes.” See Clint Townson, Marion Stampley Jr. and Britta Stanton, supra.

Fourth, what individual attitudes and beliefs should the defense be on the lookout for in vetting potential jurors? In this regard, more pertinent than traditional inquiries regarding educational background, occupation and litigation experience, may be inquiries regarding political affiliation, frequented social media sites and news sources. Of course, whether a potential juror knows anything about the case remains a recommended inquiry. See In Juries, Lawyers Now Favor the Uninformed, New York Times (July 19, 2017).

Answers to these questions may help the defense decide (1) whether to settle the case or proceed to trial, (2) whether or how to test the case before a mock jury, (3) what questions to ask during voir dire, (4) juror selection, and (5) how the case should be tried.