Coping with the Stress of a Legal Malpractice Claim

A significant measure of a person is not whether he or she avoids trouble, but how he or she meets it when they find each other.  Bruce Schafer

I couldn’t agree more.

In this month’s Parting Thoughts Bruce Schafer, our Director of Claims, shares some important advice on how to handle the emotional effects of a legal malpractice claim.  Here is an excerpt:

Stress and professional liability claims go hand-in-hand; stress is either a cause of the claim or a product of the claim. For persons living on the edge or sinking into the abyss of depression, substance abuse, financial ruin or other personal chaos, the claim is usually a product of what is going on outside of the office, and the claim may be the least of the covered party’s problems. On the other hand, many a high-functioning, conscientious lawyer is affected by either his or her error or the accusation of malpractice or wrong-doing. In this scenario, the claim triggers the stress or distress, which can range from mild to severe, depending upon the makeup of the lawyer, the nature and magnitude of the claim and the lawyer’s support system (or lack thereof).

Many lawyers’ emotional responses to claims evolve during the life of the claim. The initial reaction may be anger, denial, shame or fear. As the lawyer “gets used to” the process, those feelings may become less acute and the lawyer is more able to objectively deal with the claim. The experienced claims attorneys at the PLF and defense counsel (where retained) are able to reassure the covered party and convey the sense the claim can be managed. The reasonable goal is to manage and cope with the stress generated by a professional liability claim. It is difficult to completely eliminate it. Motivated, conscientious professionals care; that is to be expected and respected.

From my experience, the first claim is the one most likely to affect the lawyer. The claim symbolizes imperfection, which can then initially be elevated to feelings of general incompetence. Perhaps the lawyer has been judgmental of other lawyers who made mistakes; now she judges herself just as harshly. The “first-timer’s” anxiety is also fueled by fear of failure and of the financial, reputational and existential consequences. Will I get through this? Well, by and large, they do get through it. Subsequent claims, although not welcomed, are at least less fearsome.

A significant measure of a person is not whether he or she avoids trouble, but how he or she meets it when they find each other. I have been impressed with how brave most of our covered parties are when faced with a claim. Notwithstanding the unpleasantness or threat of facing accusations of incompetence or worse, with the range of potential adverse consequences, most of our covered parties continue to function professionally and meaningfully participate in their defense and “make it through.” Bravery involves overcoming fear or surviving a difficult experience. Among the bravest are those lawyers whose cases go to a jury trial. While the plaintiff is presenting its case, the covered party has to sit and listen to opening statements, plaintiff’s story and expert witnesses’ criticisms of the covered party’s conduct. In some cases, the prayer exceeds the coverage. I have developed immense respect for many of our covered parties, not because of their perfection as lawyers (they weren’t perfect), but because of how they coped with the claim.

As I have observed in the crucible of professional liability claims, the above are just a few examples of how lawyers are no different from other people. They fear failure. They desire approval and respect. Some feel unjustly accused, and some are. Many make obvious mistakes that cause little or no harm. Others commit small errors that cause a lot of harm. Some want to apologize or compensate to make it right. Others want to fight. For most, the experience is unpleasant, but they get through it. Most meet the challenge with their integrity, decency and careers intact. Not only do they survive the experience, but they earn our respect by how they cope.

The full article is posted here.

2 thoughts on “Coping with the Stress of a Legal Malpractice Claim

  1. Pingback: The Year in Review – Useful Tips You May Have Missed « Oregon Law Practice Management

  2. Pingback: Coping with Mistakes | Oregon Law Practice Management

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