When the Defendant is the Attorney:
Managing Litigation Stress
By Carol P. Waldhauser

Stuart C. Doe, Esquire, was experiencing an unusually calm morning before leaving for Circuit Court in the afternoon. In fact, Stuart took advantage of this downtime to catch-up on his paperwork. But Stuart’s morning was suddenly interrupted. He noted a man walking towards his office door. At first, Stuart believed it was a sales call or a walk-in client. Unfortunately, Stuart was wrong. It was the private process server, who after asking Stuart’s name, placed a document in his hand. Stuart’s thoughts of calmness faded. Reality set in: Stuart was the Defendant and he was being sued for legal malpractice to the tune of $300,000!

The Plaintiff was a client who Stuart remembered representing in a Wrongful Death suit. It was a difficult case – high specials with no settlement offers. The case had to be tried, and they lost. Needless to say, the client was disappointed with the verdict, but a malpractice suit? Stuart was stunned, but there was no time to sort out his thoughts now. At this moment, Stuart knew that he must focus on the clients waiting in Circuit Court. He rose from his desk and headed to his car. As he drove to Court, Stuart could not concentrate. Fortunately, when he met with his clients, Stuart immediately focused on their case, not his.

Driving home that evening, Stuart repeatedly went over the Counts alleged in the malpractice suit. Letting his emotions go unchecked, Stuart imagined the opposing lawyer’s questions as he nervously sought answers, sweating the entire time. “Did I represent this client negligently or unprofessionally?” Stuart wondered.

As his heart pounded faster and faster, Stuart also remembered that he had let his professional liability insurance lapse – after all, he and his wife had just bought a new home, tuition was due and cash flow was tight. Anger and guilt rushed through Stuart’s mind because of his poor judgment. Similarly, Stuart wondered how this malpractice suit would affect both his professional and personal life.

Stuart managed to drive home without incident that night. However, the following morning he awoke feeling stiff and drained. For days, he could not bring himself to admit to anyone that he had been sued for malpractice. Instead, Stuart isolated himself. He finally did tell his family. Heavily in debt, with little or no money in savings, Stuart’s wife became frantic for the family’s financial security. Soon the suit crept into every corner of their lives…

Generally when a lawyer is in the midst of a legal malpractice lawsuit or even the threat of it, he or she experiences a specific type of impairment from the resulting stress and devastation. Despite the best preventive measures, litigation may occur. Lawyers preparing to defend the legal malpractice suit must recognize that they will inevitably have physical, emotional and behavioral reactions to the stress involved, especially when there is no liability coverage. Individual lawyers confronting their own litigation process should expect to feel one or more of the following symptoms of stress:

• Physical - Tight neck and shoulders, pounding heart, chest pain, headaches, high blood pressure, upset stomach, fatigue, cold or sweaty hands, eyestrain, excessive sweating
• Emotional - Depression, anger, irritability, low self-esteem, apathy, impatience
• Behavioral - Overeating, increase in smoking/drinking, change in sleeping, reckless driving, forgetfulness, drug use, negativity

Even if the lawyer subject to a suit rendered faultless legal advice, fear and anxiety are common responses. Similarly, Defendant lawyers may question their competence in their profession. They may become ill, withdrawn or depressed. Initially, support systems may appear to be scarce. Peers and/or associates may not offer empathy or understanding, particularly if they have not personally experienced a professional liability suit. Even family and friends may be incapable of providing support or understanding. All of these groups may harbor the mistaken belief that bad outcomes and malpractice suits only happen when the lawyer is negligent.

Our attorney, Stuart, would come home at 6:30 p.m. most evenings, drained; he would have a few glasses of wine, flop on the bed and go to sleep. His eating habits changed, and he refused to talk on the phone, except with clients. Stuart even stopped playing golf. He just wanted to hide. Also, he started smoking again. When the case finally came to trial, Stuart was an emotional and physical mess. To make matters worse, the jury found Stuart negligent, leaving a settlement to pay.

A professional malpractice suit may produce feelings that rank in intensity with such other life-events as divorce or life threatening illness. Subsequently, an individual should make the intense effort to cope with positive skills rather than negative ones.

Coping Skills

Keep It In Perspective:

• Has this happened before? If so, what did you learn from that experience?
• What are the options available for support?
• What is the worst possible outcome?
• What advice would you give to a friend in this situation?

Use Self-Dialogue:

• Even during this stressful event, make an attitude adjustment (i.e., be grateful for the small and the good things in your life).
• Remember to use this event as a learning experience.
• Calm down.
• Remember that every cloud does have a silver lining if you look for it!

Keep a Positive Attitude:

• This too shall pass.
• Stay in today.

Of course, it is hard to smile when things are going wrong.  There are times when we may need to blow off steam and even express our resentment. But letting negative emotions consume us only makes the situation and our health worse.

Conversely, if you focus on the positive side, you are more likely to find a way out. Moreover, a positive attitude is contagious, making it easier to live and work with others.

Get Counseling:

Often, the only way to truly accept stressful events is to get professional help. Seeking counseling is not a sign of weakness; it takes strength to recognize that you cannot always go it alone. Learn to make use of, and do not avoid, expert resources. Furthermore, if you feel alone, overwhelmed or helpless, you may need the special training and perspective that a counselor can bring.

Generally, attorneys tend to suffer from what the MSBA’s Lawyer Assistance Program coins as the “shoemaker syndrome.” Lawyers often put up a strong front. They don’t sit in their offices crying; they immerse themselves in their clients’ cases. Subsequently, the attorney keeps a lot of emotions bottled up, and many are not aware of the turmoil within.

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Publications : Bar Bulletin: June, 2003