By: Martin Merritt, esq.
Past President, Texas Health Lawyers Association
Past Chair, DBA Health Law Section
martin@martinmerritt.com
“Please Tell Me you Didn’t. . . How to Keep Clients Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog
As you can tell, I love talking about health law & litigation issues, and general wellbeing, if you have any health law questions or better yet, need to refer a case, just call or drop me an email and I will happily talk.
Much of my practice involves a “sensible application of law,” to a “sensible set of facts,” culminating in “sensible advice,” to a “sensible client.” You might say, it’s the professional equivalent to “drinking an Ambien-laced, decaf, soymilk latte while reading a phone book.” And that’s just fine.
Other times, usually in response to an unreasonable demand, I get to “come out of my shoes” offering some “recreational suggestions” to opposing counsel and/or “the horse he rode in on.” (It’s the most fun a lawyer can have with the lights on. And under Rule 408, what we say in negotiations is not admissible in court.)
The Devil’s Advocate. But every so often, I have to play “Devil’s Advocate” with a client. It is where, if I am going to do my job, I have to “flick shit” on whatever stupid idea my client has in his head.
This is the reason I named this blog, “Please Tell Me You Didn’t. . .” (Because it is the thing I say most often to clients.) This is usually muttered under my breath, with a combination of the following protective body language: “chin on my chest,” “eyes squinted closed,” “one hand on my forehead,” “both arms covering my chest” with “one hand locked on my elbow.”
This is called “protective behavior,” because we unconsciously cover body parts that are most vulnerable to attack, even if the attack on our senses is verbal, and coming from our own clients. (Your brain is in your head, so we cover our heads, we need our eyes to see, so we squint, our necks have arteries, so our chins lower, our chests are where we keep our hearts and lungs, so we cover them and so on.) You could also cover your ears, but you would run out of hands.
The term “Devil’s Advocate,” on the other hand, originated with the Catholic Church, where it was a formal position, the “Promoter of the Faith,” responsible for arguing against sainthood.
It is the job of counsel, then, in playing “Devil’s Advocate” to “find the stupid” in a proposed course of action. In my practice, this can be a little bit like playing “Where’s Waldo,” in which a client paints an elaborate picture of his plans, and my job is to find the “little guy in the striped sweater,” representing “what’s wrong with this picture.”
Other times, anybody can see what the client is doing wrong. I just have to get through their thick skulls (and try to get them to promise to behave) which looks a little like administering this oath :
“I . . .[Answer: “I”]
“State your name. . .[Answer: “God’s own dumbass”]
“Promise” . . .[Answer: “Okay. . .”]
“Not to flush my career down the toilet. . .[Answer: But what if. . .]”
“The Case of the Amorous Therapist.” My old boss had one of the best (and simplest) ways of counseling us, when one of his lawyers came to him to complain about a difficult assignment, he would look at us incredulously and say, “this isn’t therapy, just do it.”
Clients are a little different, in that they are “paying customers.” In any other business, they are “always right.” While you don’t want to run them off, we are ethically obligated to put their interests ahead of our own, and that sometimes calls for telling them things they might not want to hear. (See also, “tough love.”)
Case in point, I had a psychotherapist who came to see me last week. She had developed “feelings” for a patient. She was 40, her patient was 24, who came to see her for “depression” and “suicidal ideation.”
I thought, “Please Tell Me You Didn’t. . .” (Well, of course she “did.”) That is when I also felt the urge, like “Dr. Strangelove,” to fight to keep my arm from reaching for my forehead. But, she had moved the patient to another therapist.
The problem, as she saw it, was “how best to continue the affair, while minimizing the chances the licensing board would throw the book at her.”
“Maybe I could give up clinical practice,” she said, “and switch to an administrative position.” I asked her what the patient did for a living. “He doesn’t work,” she said. I answered, “he’s cute as a puppy, isn’t he?”
She searched for words, but I cut her her off and I asked, “may I play Devil’s Advocate. . .”
She consented. And it went like this:
“You do realize that this kid, with his “James Dean, Rebel Without a Cause act,” intends to sit on your couch, under your roof, playing video games all day, while you bring home the paycheck? How long do you think that is going to last, if neither of you have a job? How long will this last if he doesn’t get a job?”
“But, he also has “emotional blackmail” material (“if you leave me I will . . .”) and “legal blackmail” material (“if you dump me, I will turn you into the licensing board”). While his parents might just do it the first, (or anytime) he complains to them about you.”
I then took a chance, and asked if my client had seen the episode of Parks and Recreation, with the “Tammy Deprogramming” scene (it is 3 minutes on YouTube), where Ron Swanson and Leslie Knope employ a “Pavlovian technique” to convince a coworker to break off a destructive relationship. (Ron sprays the woman’s perfume, “Girth,” in the guy’ face, while each time, Leslie slaps him across the face. . . until the bottle runs out.)
This bit of humor, which my client had seen, was just the break I needed to drive the point home:
“The question isn’t, ‘how can you do this and not get caught.’ The question is, ‘what the hell is wrong with you, that this affair sounds like a good idea?’ Someone needs to shove you against the wall, spray his cologne in your face and slap you until you come to your senses.”
Not everyone can get away with being as direct as I tend to be. But, the key to counseling, I believe, is to get permission to play “Devil’s Advocate,” and warn the client you are going to go as hard as necessary. “Do I have permission?”
If it gets too rough (more than the client can handle), remind them, “look, I am just playing devil’s advocate on your behalf, this is the way the licensing board (or whomever will administer the consequence) will treat you. “I am not doing my job, if I don’t point these things out for you to consider.”
It also helps to remember, it isn’t always going to work. We can’t control the outcome, we can only control our own conduct. Do the right thing, and pray it gets through to them. As my old boss would tell his lawyers, “It’s not therapy. Just do it.”